Hunter v. City of Los Angeles Corrected Brief for Plaintiffs-Appellees

    ORAL ARGUMENT SCHEDULED JANUARY 19, 2012
No. 11-5256

®ntteb States; Court of Appeal# 
for tf)e ©(strict of Columbia Circuit

SHELBY COUNTY, ALABAMA 

Plaintiff-Appellant,

ERIC H. HOLDER, JR., in his official capacity as 
Attorney General of the United States

Defendant-Appellee.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 

NO. L10-CV-00651
HONORABLE JOHN D. BATES, DISTRICT JUDGE

CORRECTED BRIEF OF INTERVENORS-APPELLEES 
EARL CUNNINGHAM, HARRY JONES, ALBERT JONES, 

ERNEST MONTGOMERY, ANTHONY VINES, WILLIAM WALKER, 
BOBBY PIERSON, WILLIE GOLDSMITH, SR., MARY PAXTON-LEE, 
KENNETH DUKES, THE ALABAMA STATE CONFERENCE OF THE 

NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED 
PEOPLE, INC., AND BOBBY LEE HARRIS

John Payton, Director-Counsel
Debo P. Adegbile
Elise C. Boddie
Ryan P. Haygood
Dale E. Ho
Natasha M. Korgaonkar 
NAACP Legal Defense and 

Educational Fund, Inc.
99 Hudson Street, Suite 1600 
New York, NY 10013 
Tel. (212) 965-2200

Samuel Spital
Squire, Sanders & Dempsey (US) L.L.P. 
30 Rockefeller Plaza 
New York, NY 10112 
Tel.(212) 872-9800

Counsel for Intervenors-Appellees 
Earl Cunningham, Harry Jones,
Albert Jones, Ernest Montgomery, 
Anthony Vines and William Walker



Laughlin McDonald 
American Civil Liberties Union 
Foundation
230 Peachtree Street, NW, Suite 1440 
Atlanta, GA 30303 
Tel. (404) 523-2721

Arthur B. Spitzer 
American Civil Liberties Union 

of the Nation’s Capital 
1400 20th Street, N.W., Suite 119 
Washington, DC 20036 
Tel. (202) 457-0800

Counsel for Intervenors-Appellees 
Bobby Pierson, Willie Goldsmith, Sr., 
Mary Paxton-Lee, Kenneth Dukes, and 
the Alabama State Conference o f the 
National Association for the 
Advancement o f Colored People, Inc.

Victor L. Goode 
Assistant General Counsel 
NAACP
4805 Mt. Hope Drive 
Baltimore, MD 21215-3297 
Tel: (410) 580-5120

Counsel for Intervenor-Appellee 
The Alabama State Conference o f the 
National Association for the 
Advancement o f Colored People, Inc.

Jon M. Greenbaum 
Robert A. Kengle 
Marcia Johnson-Bianco 
Mark A. Posner
Lawyers' Committee for Civil Rights 
1401 New York Avenue, NW, Suite 400 
Washington, DC 20005 
Tel. (202) 662-8325

John M. Nonna 
Autumn C. Katz 
Daniel T. Stabile 
David G. Cooper 
DEWEY & LEBOEUF LLP 
1301 Avenue of the Americas 
New York, NY 10019 
Tel. (212) 259-8311

Counsel for Intervenor-Appellee 
Bobby Lee Harris



CERTIFICATE AS TO PARTIES, RULINGS,
AND RELATED CASES

Intervenors-Appellees certify that:

1. Parties

All parties, intervenors, and amici appearing before the district court are 

listed in the Appellant’s Brief. In addition to the amici identified by Appellant, the 

New York Law School Racial Justice Project, the Constitutional Accountability 

Center, and the State of New York have filed briefs as amici curiae with this 

Court.

2. Rulings Under Review

Reference to the rulings at issue appears in the Appellant’s Brief.

3. Related Cases

This case has not previously been before this Court or any other court. All 

related cases are listed in the Appellant’s Brief.

i



CORPORATE DISCLOSURE STATEMENT OF INTERVENOR- 
APPELLEE ALABAMA STATE CONFERENCE OF THE NAACP, INC.

There is no parent corporation or any publicly held corporation that owns 

10% or more of the stock of the Alabama State Conference of the NAACP, Inc. 

(“Alabama NAACP”).

The National Association for the Advancement of Colored People 

(“NAACP”) was founded in 1909 and is the nation’s oldest, largest, and most 

widely recognized grassroots based civil rights organization. The mission of the 

NAACP is to ensure the political, educational, social, and economic equality of all 

citizens; to achieve equality of rights and eliminate race prejudice among citizens 

of the United States; to remove all barriers of racial discrimination through 

democratic processes; and to seek enactment, enforcement, and the proper 

construction of federal, state, and local laws securing civil rights. The purpose of 

the Alabama NAACP is to implement the mission of the NAACP within Alabama. 

The NAACP has worked to protect voter registration, voter education, get out the 

vote efforts, election protection, census participation, and redistricting. The 

Alabama NAACP has approximately 2700 members who are residents of the state 

of Alabama.

li



Respectfully submitted,

s/ Laughlin McDonald 
Laughlin McDonald
American Civil Liberties Union Foundation 
230 Peachtree Street, NW, Suite 1440 
Atlanta, GA 30303 
Tel. (404) 523-2721 
lmcdonald@aclu.org

Arthur B. Spitzer 
American Civil Liberties Union 
of the Nation’s Capital 

1400 20th Street, N.W., Suite 119 
Washington, DC 20036 
Tel. (202) 457-0800 
artspitzer@aol. com

Counsel for Intervenors-Appellees 
Bobby Pierson, Willie Goldsmith, Sr.,
Mary Paxton-Lee, Kenneth Dukes, and 
the Alabama State Conference o f the 
National Association for the Advancement o f 
Colored People, Inc.

Victor L. Goode 
Assistant General Counsel 
NAACP
4805 Mt. Hope Drive 
Baltimore, MD 21215-3297 
Tel: (410) 580-5120

Counsel for Intervenor-Appellee 
Alabama State Conference o f the 
National Association for the Advancement o f 
Colored People, Inc.

iii

mailto:lmcdonald@aclu.org


TABLE OF CONTENTS

CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES............. i

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

TABLE OF CONTENTS......................................................................................... iv

TABLE OF AUTHORITIES.................................................................................. vii

GLOSSARY OF ABBREVIATIONS.................................................................... xv

STATEMENT OF THE ISSUES...............................................................................1

STATUTES AND REGULATIONS......................................................................... 1

STATEMENT OF THE CASE AND SUMMARY OF THE ARGUMENT..........1

LEGAL STANDARD................................................................................................4

ARGUMENT.............................................................................................................5

I. CONGRESS’S BROAD ENFORCEMENT AUTHORITY UNDER THE 
RECONSTRUCTION AMENDEMENTS REQUIRES A DEFERENTIAL 
STANDARD OF REVIEW ON THE LIMITED ISSUE OF CURRENT 
NEEDS..................................................................................................................5

A. The Constitutionality of the Section 5 Preclearance Remedy and Its
Application to Specified Jurisdictions Has Been Upheld by the Supreme 
Court on Four Separate Occasions.............................................................7

B. Congress Is Entitled to Substantial Deference Because Section 5 Is
Remedial Legislation Enforcing Bedrock Constitutional Rights.............10

1. Both the Fourteenth and Fifteenth Amendments Provide Congress
With Enforcement Authority for Section 5....................................10

2. Section 5 Does Not Attempt to Redefine the Substance of 
Constitutional Rights, Unlike the Statutes Struck Down in the
Boerne Cases.................................................................................. 13

iv



C. Congress Was Entitled to Rely on a Broad Array of Evidence in Deciding
to Reauthorize Section 5...........................................................................17

1. In Enacting Remedial Legislation, Congress May Consider
Evidence from Any Probative Source............................................17

2. Congress Properly Relied on Evidence of Vote Dilution in
Deciding to Reauthorize Section 5................................................ 20

D. Congress Is Entitled to Substantial Deference in the Specific Remedy
Chosen..................................................................................................... 24

II. THE LEGISLATIVE RECORD ESTABLISHES THE
CONSTITUTIONALITY OF SECTION 5 ........................................................26

A. The Legislative Record Is Replete with Evidence of Repetitive Violations
of Minority Voting Rights........................................................................26

1. Examples of Repetitive Violations Initiated at the State Level....27

2. Examples of Repetitive Violations at the Local Level..................32

B. The District Court Correctly Found That There Is “Extensive Evidence of
Recent Voting Discrimination in th[e] Virtually Unprecedented 
Legislative Record” ..................................................................................38

1. Registration and Turnout Rates.....................................................39

2. Minority Elected Officials..............................................................39

3. Section 5 Objections..................................................................... 41

4. More Information Requests...........................................................45

5. Judicial Preclearance Suits............................................................ 46

6. Section 5 Enforcement Suits..........................................................47

7. Section 2 Litigation....................................................................... 47

v



8. Federal Observers.......................................................................... 49

9. Racially Polarized Voting and Vote Dilution...............................50

10.Section 5’s Deterrent Effect...........................................................52

III. THE LEGISLATIVE RECORD ESTABLISHES THE
CONSTITUTIONALITY OF SECTION 4(B)...................................................54

A. The Rationale Underlying Section 4(b) Is Constitutionally Sound........55

1. The Coverage Criteria................................................................... 55

2. Congress in 2006 Employed an Appropriate Coverage Theory ....58

B. Congress Properly Concluded that the Legislative Record Contains 
Substantial Evidence that Voting Discrimination Remains More 
Prevalent In Covered Jurisdictions than in Non-Covered Jurisdictions ..61

1. The Coverage Provision Is Neither Over-Inclusive Nor Under-
Inclusive .........................................................................................61

2. Comparative Evidence Demonstrates that the Coverage Provision 
Remains Appropriate.....................................................................64

C. The Bailout and Bail-In Provisions Support the Congruence and
Proportionality of Section 4(b).................................................................73

CONCLUSION........................................................................................................75

CERTIFICATE OF COMPLIANCE.......................................................................78

CERTIFICATE OF SERVICE................................................................................79

vi



TABLE OF AUTHORITIES*

Cases

Alden v. Maine,
527 U.S. 706(1999)........................................................................................... 25

Allen v. State Board o f Elections,
393 U.S. 544(1969)........................................................................................... 21

America’s Community Bankers v. F.DJ.C,
200 F.3d 822 (D.C. Cir. 2000)..............................................................................4

Arlington Heights v. Metropolitan Housing Development Corp.,
429 U.S. 252 (1977)........................................................................................... 44

Bartlett v. Strickland,
129 S. Ct. 1231 (2009)........................................................................................52

Board o f Trustees o f the University o f Alabama v. Garrett,
531 U.S. 356 (2001)..................................................................................... 15, 18

Briscoe v. Bell,
432 U.S. 404(1977)............................................................................................21

*City ofBoerne v. Flores,
521 U.S. 507 (1997)................................................................. 2, 9, 13, 14, 17, 25

City o f Port Arthur v. United States,
459 U.S. 159 (1982)............................................................................................51

City o f Mobile v. Bolden,
446 U.S. 55 (1980)..............................................................................................24

* Authorities upon which Intervenors-Appellees chiefly rely are marked with 
asterisks.

vii



*City o f Rome v. United States, 
446 U.S. 156 (1980)........... 1,7, 9,20,21,40,41,42,43,44,51

County Council o f Sumter County v. United States,
555 F. Supp. 694 (D. D.C. 1983).......................................................................60

Dillard v. City o f Foley,
926 F. Supp. 1053 (M.D. Al. 1995).............................................................35, 37

Employment Division, Dept, o f Human Resources v. Smith,
494 U.S. 872 (1990)........................................................................................... 17

Georgia v. United States,
411 U.S. 526 (1973)..............................................................................................7

Gomillion v. Lightfoot,
364 U.S. 339 (1960)............................................................................................11

Gray v. Sanders,
372 U.S. 368 (1963)............................................................................................24

Hunter v. Underwood,
471 U.S. 222 (1985)............................................................................................ 19

Hurtado v. California,
110 U.S. 516 (1884)............................................................................................23

Jeffers v. Clinton,
740 F. Supp. 585 (E.D. Ark. 1990).....................................................................73

Johnson v. California,
543 U.S. 499 (2005)............................................................................................ 16

Johnson v. DeGrandy,
512 U.S. 997(1994)........................................................................................... 41

Kimel v. Florida Bd. o f Regents,
528 U.S. 62 (2000)................................................................................... 9, 13, 14

viii



* Lopez v. Monterey County, 
525 U.S. 266(1999)....... 7, 9,10

Louisiana v. United States,
380 U.S. 145 (1965)...........................................................................................11

LULAC v. Texas,
548 U.S. 399 (2006).............................................................................. 28,41,48

Miller v. Johnson,
515 U.S. 900 (1995).....................................................................................44, 49

Mississippi State Chapter, Operation PUSH v. Allain,
674 F. Supp. 1245 (N.D. Miss. 1987),
aff’d, 932 F.2d 400 (5th Cir. 1991)...................................................................30

NAACP v. Hampton County Election Commission.,
470 U.S. 166 (1985)..................................................................................... 35,36

Nevada Department o f Human Resources v. Hibbs,
538 U.S. 721 (2003)........................................................  3, 19, 22, 25, 26, 51, 64

* Northwest Austin Municipal Utility District Number One v. Holder,
129 S. Ct. 2504 (2009)................................  10, 52, 54, 55, 57, 58, 64, 67, 72, 74

* Northwest Austin Municipal Utility District Number One v. Mukasey,
573 F. Supp. 2d 221 (D. D.C. 2008)...........28, 31, 32, 35, 39, 40, 41, 42, 43, 46

47, 48, 50, 51, 52, 53, 62, 65, 72, 73

Railway Express Agency v. New York,
336 U.S. 106 (1949)........................................................................................... 64

Reno v. Bossier Parish Sch. Bd.,
528 U.S. 320 (2000)........................................................................................... 42

Rogers v. Lodge,
458 U.S. 613 (1982)............................................................................... 10, 48,51

Shaw v. Reno,
509 U.S. 630(1993).....................................................................................22, 49

IX



11
Smith v. Allwright,

321 U.S. 649(1944).............

*South Carolina v. Katzenbach,
383 U.S. 301 (1966)....  1, 4, 6, 7, 8, 12, 17, 18, 26, 44, 49, 54, 56, 57, 62, 63, 64

Tennessee v. Lane,

Thornburg v. Gingles,
478 U.S. 30 (1986)................................................................................ 48,51,70

* Turner Broadcasting System v. F.C.C.,
520 U.S. 180(1997)...........................................................................................54

United States v. Blaine County,
363 F.3d 897 (9th Cir. 2004)............................................................................ 48

United States v. Charleston County,
316 F. Supp. 2d 268 (D.S.C. 2003),
aff’d, 365 F.3d 341 (4th Cir. 2004)...................................................................30

United States v. Salerno,
481 U.S. 739(1987)............................................................................................ 5

Washington State Grange v. Washington State Republican Party,
552 U.S. 442 (2008)..............................................................................................5

White v. Regester,
412 U.S. 755 (1973)..................................................................................... 10, 11

Williamson v. Lee Optical,
348 U.S. 483 (1955)............................................................................................64

Tick Wo v. Hopkins,
118 U.S. 356 (1886)............................................................................................ 16

Young v. Fordice,
520 U.S. 273 (1997)............................................................................................30

x



Docketed Cases

Arizona v. Holder, No. 1 l-cv-01559 (D.D.C.)....................................................... 63

Kirkie v. Buffalo County, No. 03-cv- 3011 (D.S.D.).............................................. 73

La. House o f Representatives v. Ashcroft, No. 02-cv-62 (D.D.C.).........................28

LULAC v. City ofSeguin, No. 02-cv-369 (W.D. Tex.)...........................................33

LULAC v. Texas, No. 06-cv-1046 (W.D. Tex.)...................................................... 28

Sanchez v. Anaya, No. 82-0067M (D. N.M.).......................................................... 73

Texas v. Holder, No. 1 l-cv-1303 (D.D.C.)............................................................. 28

Statutes and Legislative Materials

U.S. Const, amend. XIV, § 5 .................................................................................. 11

U.S. Const, amend. XV, § 2.................................................................................... 11

42 U.S.C. § 1973aa.................................................................................................61

42U.S.C. § 1973a(c)........................................................................................... 4, 73

42 U.S.C. § 1973b(4)(f)(4).....................................................................................61

42 U.S.C. § 1973b(b)................................................................................................ 1

42 U.S.C. § 1973c..................................................................................................... 1

Pub. L. No. 89-110, 79 Stat. 437 (1965)...........................................................56, 57

Pub. L. No. 91-285, 84 Stat. 314 (1970)...........................................................56, 57

xi



Pub. L. No. 94-73, 89 Stat. 400 (1975).................................... , ....................... 56, 57

Pub. L. No. 97-205, 96 Stat. 131 (1982)................................................................. 57

Pub. L. No. 109-246, 120 Stat. 577 (2006)...................................................2, 50, 57

28 C.F.R. § 51.52................................................................................................... 44

H.R. Rep. No. 89-439 (1965), reprinted in 1965 U.S.C.C.A.N. 2437................... 62

H.R. Rep. No. 94-196 (1975)..................................................................................20

H.R. Rep. No. 109-478 (2006)......................... 37, 39, 40, 46, 50, 51, 52, 66, 71, 72

S. Rep. No. 97-417 (1982)............................................................................... 48, 58

S. Rep. No. 109-295 (2006)............................................................................. 45, 49

152 Cong. Rec. H5131-H5224 (daily ed. July 13, 2006)................................... 1, 59

152 Cong. Rec. S8372 (daily ed. July 27, 2006).................................................... 49

Extension o f the Voting Rights Act o f 1965: Hearing Before the S. Subcommittee 
on Constitutional Rights o f the Committee on the Judiciary, 94th Cong.
(April 10, 1975)................................................................................................. 21

To Examine the Impact and Effectiveness o f the Voting Rights Act: Hearing before 
the Subcomm. on the Constitution o f the H. Comm, on the Judiciary, 109th 
Cong. (October 18, 2005)................................................................ 38, 66, 70, 71

Voting Rights Act: An Examination o f the Scope and Criteria for Coverage Under 
the Special Provisions o f the Act: Hearing before the Subcomm. on the 
Constitution, H. Comm, on the Judiciary, 109th Cong. (Oct. 20, 2005)........... 70

Voting Rights Act: Section 5 o f the Act - History, Scope & Purpose: Hearing 
before the Subcomm. on the Constitution o f the H. Comm, on the Judiciary,
109th Cong. (Oct. 25, 2005)..................................................... 27, 29, 30, 31, 32,

34, 35,36, 37,38,44, 45,71,72
Voting Rights Act: The Continuing Need for Section 5: Hearing before the 

Subcomm. on the Constitution, H. Comm, on the Judiciary, 109th Cong.
(Oct. 25, 2005)............................................................................................. 24,51

xii



Voting Rights Act: Evidence o f Continuing Need: Hearing before the Subcomm. 
on the Constitution o f the H. Comm, on the Judiciary, 109th Cong.
(Mar. 8, 2006).................................29, 31, 33, 34, 36, 37, 39, 49, 50, 71, 72, 74

Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting Rights Act
Reauthorization and Amendments Acts o f2006: Hearing before the Subcomm. 
on the Constitution o f the H. Comm, on the Judiciary, 109th Cong.
(May 4, 2006)............................................................................................... 63, 72

An Introduction to the Expiring Provisions o f the Voting Rights Act and Legal 
Issues Relating to Reauthorization: Hearing before the S. Comm, on the 
Judiciary, 109th Cong. (May 9, 2006)...................  38, 42, 60, 63, 65, 70, 72, 74

Modern Enforcement o f the Voting Rights Act: Hearing Before the S. Comm, on 
the Judiciary, 109th Cong. (May 10, 2006)..............................37, 38, 60, 68, 70

The Continuing Needfor Section 5 Pre-clearance: Hearing before the S. Comm, 
on the Judiciary, 109th Cong. (May 16, 2006) .....48, 51, 60, 63, 66, 71, 72, 73

Understanding the Benefits and Costs o f Section 5 Pre-clearance: Hearing before
the S. Comm, on the Judiciary, 109th Cong. (May 17, 2006)............... 38, 59, 60

63, 70, 71, 72

Continuing Need for Section 203’s Provisions for Limited English Proficient 
Voters: Hearing before the S. Comm, on the Judiciary, 109th Cong.
(June 13,2006)............................................................................................. 45,46

Reauthorizing the Voting Rights Act’s Temporary Provisions: Policy Perspectives 
and Views from the Field: Hearing before the Subcomm. on the Constitution, 
Civil Rights and Property Rights o f the S. Comm, on the Judiciary, 109th Cong. 
(June 21, 2006)....................................................................................... 40, 60, 72

Renewing the Temporary Provisions o f the Voting Rights Act: Legislative Options 
after LULAC v. Perry: Hearing before the Subcomm. on the Constitution, Civil 
Rights and Property Rights o f the S. Comm, on the Judiciary, 109th Cong.
(July 13, 2006)........................................................................... 32, 33, 40, 60, 72

xm



Other Authorities

Black’s Law Dictionary (2d pocket ed. 1996).............................................. 23

Voting Rights Initiative Master List,
http://sitemaker.umich.edu/votingrights/files/masterlist.xls......................... 68
U.S. Census Bureau, State & County QuickFacts,
http://quickfacts.census.gov/qfd/index.html................................................. 68

Ellen Katz, Not Like the South? Regional Variation and Political 
Participation Through the Lens o f Section 2, available at 
http://sitemaker.umich.edu/votingrights/files/notlikethesouth.pdf............... 71

Perales et al., Voting Rights in Texas, 1982-2006, Nw. Austin Mun. Util. Dist. 
No. 1 v. Gonzales, No. 06-cv-1364 (D.D.C.), Dkt. No. 100-12, Ex. 8... 32, 72

xiv



GLOSSARY OF ABBREVIATIONS

Br. Brief For Appellant Shelby County

DOJ Department of Justice

JA Joint Appendix

LULAC League of United Latin American Citizens

RFRA Religious Freedom Restoration Act

VRA Voting Rights Act

xv



STATEMENT OF THE ISSUES

Whether the 2006 reauthorization of Section 5 of the Voting Rights Act is 

appropriate legislation to enforce the Fourteenth and Fifteenth Amendments. 

Whether Congress’s decision in 2006 to continue covering the same jurisdictions 

under Section 5 was an appropriate exercise of its authority to enforce the 

Fourteenth and Fifteenth Amendments.

STATUTES AND REGULATIONS

All pertinent statutes and regulations are set forth in Appellant’s Addendum.

STATEMENT OF THE CASE AND SUMMARY OF ARGUMENT

Shelby County appeals the District Court’s dismissal of its facial challenge 

to the 2006 reauthorization of Sections 4(b) and 5 of the Voting Rights Act of 1965 

(“VRA”), 42 U.S.C. §§ 1973b(b), 1973c. The 2006 reauthorization was a signal 

legislative event, described by then-Chair of the House Judiciary Committee, 

Representative James Sensenbrenner, as “one of the most extensive considerations 

of any piece of legislation that the United States Congress has dealt with in the 27 

1/2 years that I have been honored to serve as a Member of this body.” 152 Cong. 

Rec. H5143 (daily ed. July 13, 2006).

Congress deliberated in 2005 and 2006 knowing that, in South Carolina v. 

Katzenbach, 383 U.S. 301 (1966), and City o f Rome v. United States, 446 U.S. 156 

(1980), the Supreme Court strongly affirmed the constitutionality of both the

1



preclearance remedy and the extension of that remedy to a set of identified 

jurisdictions with histories of voting discrimination, and specifically rejected 

attacks on federalism grounds. Congress further knew that, in Rome, the Supreme 

Court approved Congress’s decision to reauthorize Section 5 in 1975 based in 

substantial part on covered jurisdictions’ efforts to dilute minority voting power in 

response to the VRA’s prohibition on discriminatory barriers to voter registration.

Congress thus, after review of the exhaustive record, extended Sections 5 

and 4(b) for 25 years, concluding that:

The record compiled by Congress demonstrates that, without the 
continuation of the Voting Rights Act of 1965 protections, racial and 
language minority citizens will be deprived of the opportunity to exercise 
their right to vote, or will have their votes diluted, undermining the 
significant gains made by minorities in the last 40 years.

Pub. L. No. 109-246, § 2(b)(9), 120 Stat. 577, 578 (2006). In so doing, Congress

sought to enforce core protections of the Fourteenth and Fifteenth Amendments,

and acted at the peak of its enforcement authority. Congress made no attempt to

redefine constitutional protections, as occurred in City o f Boerne v. Flores, 521

U.S. 507 (1997), and other cases in which the Supreme Court has found legislation

lacking congruence and proportionality to a pattern of constitutional violations.

The District Court undertook a meticulous analysis of the record, under a

standard of review that harmonized Katzenbach, Rome and the Boerne cases. The

Court correctly found that Congress is entitled to substantial deference regarding

2



its assessment of the evidence, and its conclusions about appropriate legislative 

remedies, as held by Katzenbach and Rome, and later validated by Nevada 

Department o f Human Resources v. Hibbs, 538 U.S. 721 (2003), and Tennessee v. 

Lane, 541 U.S. 509 (2004).

Shelby County paints the Boerne cases as eviscerating the enforcement 

powers Congress is expressly granted by the Reconstruction Amendments, arguing 

for a standard of review so constrictive that it would negate much of Katzenbach 

and Rome. But as the District Court found, far from questioning Katzenbach and 

Rome, the Boerne cases represent an elaboration of the earlier precedents, 

repeatedly invoke Katzenbach and Rome, and single out Section 5 as the exemplar 

of congruent and proportional remedial legislation. Shelby County thus bears a 

heavy burden in mounting its facial challenge.

The District Court found ample evidence to justify Congress’s finding that 

Section 5 continues to serve current needs in the covered jurisdictions. The District 

Court credited a substantial record of recent and ongoing voting discrimination in 

the covered jurisdictions, including hundreds of Section 5 objections, hundreds of 

successful Section 2 lawsuits, strong racially polarized voting patterns, and 

continuing disparities regarding voter registration and the election of minorities to 

office. Moreover, numerous covered jurisdictions showed patterns of repeated 

discriminatory conduct. This record provided Congress with both direct and

3



circumstantial evidence of intentional discrimination. The District Court correctly 

rejected Shelby County’s efforts to define away entire classes of evidence—such 

as findings of minority vote dilution and Section 5 objections—which the Supreme 

Court held in Rome are directly relevant to the reauthorization of Section 5.

Finally, the District Court found that the evidence before Congress supports 

the continued distinction between the covered and non-covered jurisdictions. 

Shelby County is reduced to quibbling with the evidence that Congress relied upon 

in this regard, and arguing that Congress exceeds its enforcement powers unless it 

fits coverage so tightly as to effectively eliminate the possibility of any 

overinclusion or underinclusion. That view, however, is one that the Supreme 

Court expressly has rejected, Katzenbach, 383 U.S. at 330, taking into account that 

the VRA includes mechanisms for ongoing tailoring of Section 5 through the 

bailout and bail-in provisions of Sections 4(a) and 3(c), 42 U.S.C. § 1973a(c).

The District Court’s painstaking review of the record, under applicable 

Supreme Court precedent, correctly led it to reject Shelby County’s misreading of 

the evidence and the law. This judgment must be affirmed.

LEGAL STANDARD

“An appellate court reviews a grant of summary judgment de novo, 

applying the same standard as governed the district court’s decision.” America’s 

Cmty. Bankers v. F.D.I.C, 200 F.3d 822, 831 (D.C. Cir. 2000). Facial challenges

4



such as this one are disfavored. Wash. State Grange v. Wash. State Republican 

Party, 552 U.S. 442, 451 (2008). Shelby County’s burden is therefore a demanding 

one: it must “establish that no set of circumstances exists under which [Section 5] 

would be valid,” United States v. Salerno, 481 U.S. 739, 745 (1987), or that the 

statute lacks “a plainly legitimate sweep.” Wash. State Grange, 552 U.S. at 449 

(citations and internal quotation marks omitted). In facial challenges, “courts 

should n[ot] ... formulate a rule of constitutional law broader than is required by 

the precise facts to which it is to be applied.” Id. at 450 (citations and internal 

quotation marks omitted).

ARGUMENT

I. CONGRESS’S BROAD ENFORCEMENT AUTHORITY UNDER 
THE RECONSTRUCTION AMENDMENTS REQUIRES A 
DEFERENTIAL STANDARD OF REVIEW ON THE LIMITED 
ISSUE OF CURRENT NEEDS

Shelby County has a heavy burden in its claim that Congress exceeded its 

powers in 2006 in reauthorizing Sections 5 and 4(b) of the VRA. The Enforcement 

Clauses of the Fourteenth and Fifteenth Amendments expressly delegate to 

Congress the authority to protect against racial discrimination in voting. The 

constitutional questions here are limited by Supreme Court precedent upholding 

the remedial nature and framework of Section 5. Furthermore, the deferential 

standard of review applied in Katzenbach and Rome remains in place, especially in 

light of the fact that the Boerne cases consistently cite Katzenbach and Rome with

5



approval, and have repeatedly emphasized that Congress retains “full remedial 

powers [under the Reconstruction Amendments] to effectuate the constitutional 

prohibition against racial discrimination in voting.” Katzenbach, 383 U.S. at 326.1

Such deference remains appropriate when applying the Boerne cases 

directly, the central holding of which is that Congress oversteps its authority only 

when it ventures beyond the sweep of its enforcement power by creating new 

constitutional rights and prohibitions. That concern is not present here. In enacting 

and reauthorizing Section 5, Congress clearly has sought to enforce the express 

constitutional prohibition on discrimination in voting.

Shelby County also premises a substantial portion of its challenge on a 

meaningless distinction between evidence of barriers to ballot access, and 

evidence of minority vote dilution, citing the supposedly limited reach of the 

Fifteenth Amendment. But Shelby County’s argument is not only foreclosed by 

Rome, it is pointless, as the Fourteenth Amendment clearly reaches vote dilution 

concerns, and Congress’s authority to reauthorize Section 5 derives from both the 

Fourteenth and Fifteenth Amendments. Moreover, Congress also may rely upon 

evidence of the existence of polarized voting and minority vote dilution in 

adopting measures to enforce the Fifteenth Amendment.

1 The Attorney General agrees that a deferential standard of review applies, 
characterizing it as a continuation of the rationality standard of review set forth in 
Katzenbach. DOJ Br. at 14-19.

6



A. The Constitutionality of the Section 5 Preclearance Remedy and Its 
Application to Specified Jurisdictions Has Been Upheld by the Supreme 
Court on Four Separate Occasions

“[T]he Framers indicated that Congress was to be chiefly responsible for 

implementing the rights created in [the Fifteenth Amendment].” Katzenbach, 383 

U.S. at 326. The Reconstruction “Amendments were specifically designed as an 

expansion of federal power and an intrusion on state sovereignty,” Rome, 446 U.S. 

at 179, most particularly to enable the federal government to prevent, deter, and 

remedy acts of racial discrimination in voting. With Section 5 of the VRA, 

Congress appropriately sought to “banish the blight of racial discrimination in 

voting,” by utilizing the authority granted to it by the Reconstruction Amendments 

“to effectuate, by ‘appropriate’ measures the constitutional prohibition on racial 

discrimination in voting.” Katzenbach, 383 U.S. at 308.

On four occasions between 1966 and 1999, the Supreme Court has upheld 

the constitutionality of Section 5. Katzenbach, 383 U.S. at 335; Georgia v. United 

States, 411 U.S. 526, 532 (1973); Rome, 446 U.S. at 178, 179-80, 182; Lopez v. 

Monterey Cnty., 525 U.S. 266, 283-84 (1999). These decisions affirmed the 

fundamental proposition that Congress can appropriately “shift the advantage of 

time and inertia from the perpetrators of the evil to its victims,” Katzenbach, 383 

U.S. at 328, by means of the Section 5 preclearance remedy, applied to a specified

7



set of jurisdictions with a history of voting discrimination and a record of recent, 

ongoing discrimination.

Katzenbach rejected the claim that Section 5 was an unconstitutional 

deviation from federalism principles. At the heart of the Court’s holding was the 

Court’s delineation of the nature and scope of Congress’s “clear” Fifteenth 

Amendment authority. Id. at 324. Congress is “chiefly responsible for 

implementing [Fifteenth Amendment] rights,” and, accordingly, “[a]s against the 

reserved powers of the States, Congress may use any rational means to effectuate 

the constitutional prohibition of racial discrimination in voting.” Id. (emphasis 

added). Although States ordinarily exercise plenary authority over matters “wholly 

within the domain of state interest,” that authority must give way when state power 

is ‘“used as an instrument for circumventing a federally protected right.’” Id. at 

325. Thus, Section 5 preclearance is a “permissibly decisive” remedy for 

addressing Congress’s determination that jurisdictions with a significant history of 

discrimination would “try ... maneuvers in the future” to minimize or cancel out 

the electoral opportunities for minority citizens. Id. at 335. As discussed infra pgs. 

61-63, Katzenbach further rejected the claim that Congress inappropriately 

selected certain jurisdictions for coverage while not selecting others.

After the 1970 reauthorization was sustained in Georgia, Rome rejected a 

federalism challenge to the 1975 reauthorization, holding that Congress has full

8



authority to reauthorize the Section 5 remedy, based upon its determination that the 

covered jurisdictions may continue to minimize or cancel out the electoral 

opportunity of minority citizens. Rome, 446 U.S. at 180-82. Rome, in particular, 

governs this case because the Court conducted a detailed review of the 

congressional authority to reauthorize Section 5, the very question presented here. 

Far from rejecting or casting doubt upon the Katzenbach and Rome analyses, the 

Boerne cases consistently have embraced Katzenbach and Rome as models for 

understanding Congress’s authority under the Reconstruction Amendments. See, 

e.g., Boerne, 521 U.S. at 518, 527.

Notably, the Court in Rome upheld Congress’s inclusion of an “effects” test 

in Section 5 because Congress had acted “rationally” and therefore 

“appropriate[ly].” 446 U.S. at 177. This principle remains settled law. Lane, 541 

U.S. at 520 (“When Congress seeks to remedy or prevent unconstitutional 

discrimination, § 5 [of the Fourteenth Amendment] authorizes it to enact 

prophylactic legislation proscribing practices that are discriminatory in effect, if 

not in intent, to carry out the basic objectives of the Equal Protection Clause.”); 

Kimel v. Fla. Bd. o f Regents, 528 U.S. 62, 81 (2000).

In Lopez, decided after Boerne, the Court expressly reaffirmed Katzenbach 

and Rome in rejecting yet another federalism challenge to Section 5. 525 U.S. at 

282-83. The Court explained that Section 5 “by its nature, intrudes on state

9



sovereignty. The Fifteenth Amendment permits this intrusion, however[.]” Id. at 

284-85. Finally, in Northwest Austin Municipal Utility District Number One v. 

Holder, 129 S. Ct. 2504, 2510, 2512 (2009), the Court did not disturb these 

precedents, leaving open questions only as to whether Sections 5 and its scope of 

coverage remain appropriate in light of “current needs.”

B. Congress Is Entitled to Substantial Deference Because Section 5 Is 
Remedial Legislation Enforcing Bedrock Constitutional Rights

1. Both the Fourteenth and Fifteenth Amendments Provide 
Congress With Enforcement Authority for Section 5

Congress’s authority to reauthorize Section 5 derives from both the

Fourteenth and the Fifteenth Amendments, each of which prohibits racial

discrimination in voting.

The constitutionality of Section 5 traditionally has been analyzed under— 

and upheld pursuant to—the Fifteenth Amendment’s express guarantee that “the 

right of citizens of the United States to vote shall not be denied or abridged by ... 

any State on account of race [or] color.” Lopez, 525 U.S. at 294 n.5. But it also is 

well established that the Equal Protection Clause of the Fourteenth Amendment 

prohibits racial discrimination in voting by state and local governments. See, e.g. 

Rogers v. Lodge, 458 U.S. 613 (1982); White v. Regester, 412 U.S. 755 (1973). 

The fact that the Supreme Court’s decisions upholding the constitutionality of 

Section 5 have relied on the Fifteenth Amendment is best understood as a function

10



of jurisprudential historical development, and does not reflect an absence of 

authority under the Fourteenth Amendment.2 There is no authority for the 

proposition that Section 5 is not a valid exercise of Congress’s Fourteenth 

Amendment powers. Indeed, both the Fourteenth and Fifteenth Amendments 

prohibit racial discrimination in voting, and both Amendments grant Congress “the 

power to enforce” this prohibition “by appropriate legislation.” U.S. Const, 

amend. XIV, § 5 & amend. XV, § 2. It follows, therefore, that both Amendments 

empower Congress to enact legislation to remedy this evil.3

The question here, accordingly, is whether the 2006 reauthorization of 

Section 5 was “appropriate legislation” that “enforce[s]” these two Amendments. 

The District Court harmonized two distinct lines of Supreme Court decisions 

addressing the standard of review, one which focuses on Congress’s Fourteenth 

Amendment authority (the Boerne decisions), and a second line that focuses on

2 -
'  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., La. 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.

This conforms to Shelby County’s definition of the issue presented, as set forth in 
its Complaint, Br. at 1, and to Congress’s own definition of the legal authority 
under which it has acted. JA542.

11



Congress’s Fifteenth Amendment authority (principally, Katzenbach and Rome). 

The Court concluded that there is “one standard of review that has always been 

employed to assess legislation enacted pursuant to both the Fourteenth and 

Fifteenth Amendments,” JA521, and that the Boerne cases should be understood as 

providing “a refined version of the same method of analysis” employed in 

Katzenbach, JA522. Indeed, Katzenbach and Rome are the only decisions in which 

the Supreme Court has conducted a comprehensive analysis of the facial validity of 

Section 5, and thus necessarily provide guiding principles which continue to 

govern this case.

As discussed above, the Supreme Court in Katzenbach emphasized that 

“Congress may use any rational means to effectuate the constitutional prohibition 

of racial discrimination in voting,” 383 U.S. at 324, and reiterated this standard in 

Rome. Furthermore, as discussed immediately below, the Boerne cases likewise 

provide that Congress must be accorded substantial deference when it legislates to 

remedy racially discriminatory voting practices. Accordingly, this Court owes 

substantial deference to Congress’s determinations in 2006, regardless of how the 

standard of review may be labeled.

12



2. Section 5 Does Not Attempt to Redefine the Substance of 
Constitutional Rights, Unlike the Statutes Struck Down in the
Boerne Cases

In stark contrast to Section 5, the statutes that have been invalidated in 

Boerne and its progeny were not designed to enforce the Reconstruction 

Amendments but to redefine the substance of those Amendments. The Supreme 

Court has consistently explained that this is the underlying question that the 

congruence and proportionality test first set forth in Boerne is designed to answer.

For example, in Kimel, the Court identified a line between “appropriate 

remedial legislation,” which is constitutional, and the legislation which “effects a 

substantive redefinition of the Fourteenth Amendment,” which is unconstitutional. 

528 U.S. at 81. In the case of the former, Congress’s enforcement powers include 

the authority to prohibit “a somewhat broader swath of conduct, including that 

which is not itself forbidden by the Amendment’s text.” Id. (emphasis in original) 

(quoting Boerne, 521 U.S. at 518). On the other side of that line lie efforts to 

“decree the substance of the Fourteenth Amendment’s restrictions on the States.... 

[Congress] has been given the power ‘to enforce,’ not the power to determine what 

constitutes a constitutional violation.” Id. Recognizing that “[t]he line between the 

two” is not easy to discern which makes the distinction “often difficult”, the Court 

stated that “Congress must have wide latitude in determining where [that line] 

lies.” Id. Quoting Boerne, the Court in Kimel stated that remedial legislation

13



evidences “a congruence and proportionality between the injury to be prevented or 

remedied and the means adopted to that end.” Id. at 520. Boerne does not call for 

courts to assess such concerns in the abstract; instead, the issue is whether the 

statutory scheme is “‘so out of proportion to a supposed remedial or preventive 

object that it cannot be understood as responsive to, or designed to prevent, 

unconstitutional behavior.’” Lane, 541 U.S. at 533 (quoting Boerne, 521 U.S. at 

532).

Thus, to prevail, Shelby County bears the heavy burden of demonstrating 

that between 1999, when the Court in Lopez reaffirmed the constitutionality of 

Section 5 as remedial legislation for the fourth time against constitutional 

challenge, and 2006, Section 5 was transformed from remedial legislation to 

legislation that substantively redefines the Constitution. But Shelby County cannot 

recast Section 5 as a substantive redefinition of established Fourteenth and 

Fifteenth Amendment protections, as the application of Boerne's three-step 

congruence and proportionality framework makes clear.

The first step in a Boerne review is an identification of the constitutional 

rights or prohibitions that Congress sought to enforce by the challenged legislation. 

Lane, 541 U.S. at 522. The Court’s level of review is highly sensitive to the nature 

of the constitutional protection at issue. Where Congress seeks to protect a 

constitutional right entitled to even moderately heightened scrutiny, the Court has

14



been deferential. Conversely, the Court has undertaken a more stringent evaluation 

of the evidence on which Congress relied where the constitutional right Congress 

seeks to protect merely requires a rational basis review. In Lane, the Supreme 

Court explained that its post-Boerne holdings in Hibbs, Kimel, and Bd. o f Trs. o f 

the Univ. o f Ala. v. Garrett, 531 U.S. 356 (2001), may be differentiated on this 

basis: “We explained [in Hibbs\ that because the [Family and Medical Leave Act] 

was targeted at sex-based classifications, which are subject to a heightened 

standard of judicial scrutiny, ‘it was easier for Congress to show a pattern of state 

constitutional violations’ than in Garrett or Kimel, both of which concerned 

legislation that targeted classifications subject to rational-basis review.” 541 U.S. 

at 528-29 (citation omitted).

Moreover, the concerns that arose in the Boerne line of cases are most likely 

to arise in the context of legislation based on the broad and somewhat diffuse terms 

of the Fourteenth Amendment. The Court’s decisions recognize that, without some 

limiting principle, the Equal Protection Clause might be used to justify remedial 

legislation that is only minimally tethered to actual constitutional protections or 

problems. Furthermore, the Fourteenth Amendment functions as the basis on 

which numerous other rights may be applied against the States. Thus, the Court 

determined in Garrett that it was necessary to take a close look at Congress’s

15



legislative predicate for remedying disability discrimination and, in Kimel, that a 

similar review was needed regarding Congress’s remedy for age discrimination.

These principles, applied to this case, demonstrate that a deferential standard 

of review applies. First, in reauthorizing Section 5, Congress was acting at the 

zenith of its constitutional enforcement authority. Section 5 addresses both the 

quintessential suspect classification (race) and the quintessential civil right (the 

right to vote). Johnson v. California, 543 U.S. 499, 509 (2005) (racial 

discrimination by state actors goes to the core of the Reconstruction Amendments, 

and receives the strictest judicial scrutiny); Yick Wo v. Hopkins, 118 U.S. 356, 370 

(1886) (the right to vote is “preservative” of all other rights). Accordingly, “it was 

easier for Congress to show a pattern of state constitutional violations” in deciding 

to reauthorize Section 5. Lane, 541 U.S. at 529 (internal quotation marks omitted), 

Second, Section 5 enforces undisputed constitutional rights against undisputed 

constitutional evils. Thus, the concerns that led to closer scrutiny in several of the 

Boerne cases, as to Congress seeking to enforce broad and diffuse constitutional 

rights, do not exist here.

Shelby County rejects this analytic framework, claiming instead that it is 

belied by the Supreme Court’s decision in Boerne itself, because Boerne involved 

a statute that sought to enforce a fundamental right (religious freedom). Br. at 17. 

The legislation at issue in Boerne, however, was a paradigmatic example of

16



Congress attempting to redefine rather than enforcing constitutional rights. As the 

Court explained in Employment Division, Dept, o f Human Resources v. Smith, 494 

U.S. 872 (1990), the First Amendment does not provide for the use of a compelling 

state interest test when judging how laws of general applicability affect particular 

religious practices. Congress disagreed and, despite the fact that the congressional
S

record revealed not a single issue of a facially neutral law motivated by religious

discrimination in the previous 40 years, sought to reverse the constitutional

interpretation of Smith by enacting the Religious Freedom Restoration Act.

Boerne, 521 U.S. at 530, 512. Thus, the legislation went far beyond an effort to

prevent or deter potential First Amendment violations, and was not entitled to

substantial deference. Lane, 541 U.S. at 520 (explaining that Boerne invalidated

RFRA because the statute’s “very purpose” was to “work a ‘substantive change in

constitutional protections’”) (quoting Boerne, 521 U.S. at 529, 532).

C. Congress Was Entitled to Rely on a Broad Array of Evidence in 
Deciding to Reauthorize Section 5

1. In Enacting Remedial Legislation, Congress May Consider 
Evidence from Any Probative Source

In Katzenbach and Rome the Court determined that “the validity of

enforcement legislation is a question that ‘must be judged with reference to the

historical experience which it reflects.’” Lane, 541 U.S. at 523 (quoting

Katzenbach, 383 U.S. at 308). This corresponds to the second step of a

17



“congruence and proportionality” analysis: an examination of the “gravity of the 

harm [the challenged legislation] seeks to prevent.” Id.

Generally, the “historical experience” must involve a “pattern of 

unconstitutional discrimination.” Bd. o f Trs. o f the Univ. o f Ala. v. Garrett, 531 

U.S. 356, 370 (2001). Beyond that, however, the nature and scope of the evidence 

Congress may rely upon is open-ended, and the Supreme Court has not limited 

Congress to considering, for example, only adjudicated constitutional violations. 

As explained in Katzenbach, “[i]n identifying past evils, Congress obviously may 

avail itself of information from any probative source.” 383 U.S. at 330. This is 

particularly true where Congress has acted to enforce constitutional rights which 

trigger heightened scrutiny of state action. In Hibbs and Lane, for example, the 

Court upheld Congress’s remedies notwithstanding the fact that Congress had 

relied, to a significant extent, upon indirect evidence of a pattern of 

unconstitutional discrimination by the States, including discrimination by private 

actors.4

In Lane, the Supreme Court concluded that there was a pattern of 
unconstitutional disability discrimination, placing significant weight on a survey 
concerning access to public buildings across the country, and the testimony of 
individual persons with disabilities as to their experiences. 541 U.S. at 527. 
Similarly the Hibbs record “contained little specific evidence of a pattern of 
unconstitutional discrimination on the part of the States,” but instead “related 
primarily to the practices of private-sector employers and the Federal 
Government.” Id. atn.16.

18



Shelby County attempts to distinguish Hibbs and Lane by arguing that those 

cases involved “overt” or “naked” discrimination. Br. at. 18-19. But when enacted 

with discriminatory intent, a facially neutral law is just as unconstitutional as a 

facially discriminatory one, see, e.g., Hunter v. Underwood, 471 U.S. 222 (1985), 

and Congress plainly may remedy and deter unconstitutional conduct of either 

variety. For example, in upholding the FMLA, Supreme Court in Hibbs specifically 

recognized that “Congress had evidence that, even where state laws and policies 

were not facially discriminatory, they were applied in discriminatory ways.” 538 

U.S. at 732. Indeed, the same was true with respect to the measures that motivated 

the enactment of Section 5 in 1965: poll taxes, literacy tests and other devices used 

to discriminate in 1965 were facially race-neutral.

Shelby County also asserts that the historical experience required to 

reauthorize Section 5 must reflect a “pattern of electoral gamesmanship,” Br. at 23, 

and a “coordinated campaign of contriving new rules of various kinds for the sole 

purpose of perpetuating voting discrimination in the face of adverse federal court 

decrees.” Id. at 54. There is no place in Katzenbach or Rome where the Court 

suggested in any way that congressional authority to enact or reauthorize Section 5 

is dependent on Congress identifying violations of this nature. But, as discussed 

infra pgs. 26-37, the congressional record revealed precisely such a pattern of 

serial violations of minority voting rights in the covered jurisdictions.

19



2. Congress Properly Relied on Evidence of Vote Dilution in 
Deciding to Reauthorize Section 5

Many of the examples of voting discrimination in the legislative record 

illustrate “the persistence of measures that are intentionally designed to ‘dilute 

minority voting strength.”’ JA595. There were literally hundreds of examples of 

such purposeful discrimination by covered jurisdictions between 1982 and 2005, 

including scores of instances where the same covered jurisdictions engaged in 

repeated efforts to discriminate against minority voters. See infra pgs. 26-37. This 

evidence directly undermines the proposition at the heart of Shelby County’s case: 

that the record contained only isolated instances of recent voting discrimination in 

the covered jurisdictions. See, e.g., Br. at 9, 16, 37, 45. Consequently, Shelby 

County seeks to bypass this evidence, contending that there is a bright-line 

distinction between “evidence of interference with the right to vote, as opposed to 

evidence concerning the weight of that vote,” Br. at 25-26, and that measures by 

covered jurisdictions designed to prevent minority voters from electing candidates 

of choice are categorically irrelevant to Section 5’s constitutionality.

That position, however, is foreclosed by Rome, which upheld the 1975 

reauthorization of Section 5 based specifically on evidence o f‘“measures ... which 

would dilute increasing minority voting strength.’” 446 U.S. at 181 (quoting H.R. 

Rep. No. 94-196, at 10-11 (1975)). See also id. at 183-84. Without referencing any 

authority, Shelby County asserts that the Court’s decision in Rome was not based

20



on evidence of vote dilution. Br. at 27-28. But in Rome, the Court made clear that 

its decision was based on ‘“ the number and nature of objections interposed by the 

Attorney General.” Id at 181. Between 1965 and 1975, a “substantial majority of 

objections” were to “obstacles [that] ... make it difficult for a black to win elective 

office ... in the areas of redistricting and reapportionment.” April 10, 1975 

Hearing, at 123-24 (N. Katzenbach).5 See also Briscoe v. Bell, 432 U.S. 404, 405- 

406 (1977) (noting the 1975 reauthorization record consisted of “‘overwhelming 

evidence’ showing ‘the ingenuity and prevalence of discriminatory practices that 

have been used to dilute the voting strength and otherwise affect the voting rights 

of language minorities’”). There can therefore be no doubt that the legislative 

record deemed sufficient in Rome consisted largely of vote dilution evidence.

Even before Rome, the Court in Allen v. State Board o f Elections made clear

that “[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 type of change could therefore

nullify [minority voters’] ability to elect the candidate of their choice just as would

prohibiting some o f them from voting.” 393 U.S. 544, 569 (1969) (emphasis

added). Allen held that Section 5 prohibits dilutive techniques, id., and, as the

Boerne line of cases make clear, in enacting remedial legislation, Congress

appropriately may rely on evidence relating to the full range of constitutional

5 Specific hearings on the reauthorizations of the Voting Rights Act that were held 
before the House and Senate Judiciary Committees are cited herein by date.

21



injuries it seeks to address through the challenged legislation. See, e.g., Hibbs, 538 

U.S. 730-31. Thus, as the district observed, starting with the initial enactment of 

Section 5, and through every subsequent reauthorization—each of which has been 

upheld on constitutional challenge—“Congress relied on evidence of these 

purposefully dilutive mechanisms....” JA598.

Allen also disproves Shelby County’s assertion that vote dilution schemes 

are a recent innovation that “bear[] no resemblance” to the techniques that 

necessitated the original enactment of Section 5. Br. at 10. The timing of Allen— 

decided in 1969, only four years after the VRA was enacted in 1965—makes plain 

that dilutive techniques are directly traceable to so-called “first generation” 

barriers. Cf Shaw v. Reno, 509 U.S. 630, 640-41 (1993) (observing that, shortly 

after passage of the VRA, “it soon became apparent that guaranteeing equal access 

to the polls would not suffice to root out other racially discriminatory voting 

practices.... [to] reduce or nullify minority voters’ ability, as a group, ‘to elect the 

candidate of their choice’”). “[S]econd generation,” JA597, barriers are precisely 

what their name implies: a successive iteration of discriminatory efforts to prevent 

minorities from exercising political power, the quintessential example of 

“gamesmanship.” See JA547 (describing history of dilutive tactics); Department of 

Justice (“DOJ’) Br. at 48-56 (same).

22



Nevertheless, Shelby County asserts that vote dilution is irrelevant to the 

constitutionality of Section 5 because, in Shelby County’s view, intentional efforts 

to dilute minority voting power are a violation only of the Fourteenth but not the 

Fifteenth Amendment. Br. at 24, 27. But even if its argument were not foreclosed 

by Rome, that distinction would make no difference here. Congress was authorized 

under the Fourteenth Amendment to rely on evidence of vote dilution as one basis 

on which to reauthorize Section 5. As the District Court noted, Shelby County 

provides no reason why Congress would not have equal authority under the 

Fourteenth Amendment to prescribe remedial legislation to combat voting 

discrimination, JA544-45, DOJ Br. at 48-49, nor can it, given its argument that the 

scope of Congress’s remedial powers is identical under both Amendments. Br. at 

15.

And, even taking the Fifteenth Amendment in isolation, Shelby County’s

position ignores that Amendment’s plain text, which prohibits the not only the

“den[ial]” of the right to vote, but also the “abridge[ment]” of it.6 While the

Supreme Court has not directly addressed this question, its pronouncements

strongly suggest that race-based efforts to interfere with the weight of the vote

6 “Abridge” is defined as “to reduce or diminish,” see Black’s Law Dictionary at 2 
(2d pocket ed. 1996). Shelby County’s interpretation of the Fifteenth Amendment 
violates a basic “canon of interpretation, ... [that courts] are forbidden to assume, 
without clear reason to the contrary, that any part of this most important 
amendment is superfluous.” Hurtado v. California, 110 U.S. 516, 534 (1884) 
(interpreting the Fourteenth Amendment).

23



violate the Fifteenth Amendment. See, e.g., Gray v. Sanders, 372 U.S. 368, 379 

(1963) (“The Fifteenth Amendment prohibits a State from denying or abridging a 

Negro’s right to vote.... If a State ... weighted . .. the white vote more heavily than 

the Negro vote, none could successfully contend that that discrimination was 

allowable.”) (emphasis added); City o f Mobile v. Bolden, 446 U.S. 55, 62 (1980) 

(plurality opinion).7

Under Shelby County’s view, in determining whether to reauthorize Section 

5, Congress should have ignored instances where covered legislatures repeatedly 

passed redistricting plans calculated to prevent Black or Latino voters from 

electing candidates of choice, such as one notable incident in which legislators 

rejected an alternative redistricting plan as containing “nigger districts,” October 

25, 2005 (Need) Hearing, at 80. That is not, and has never been, the law.

D. Congress is Entitled to Substantial Deference in the Specific Remedy
Chosen

Step three in the Supreme Court’s “congruence and proportionality” analysis 

involves an assessment of whether Congress’s chosen remedy is “an appropriate 

response” to the harms Congress identified. Lane, 541 U.S. at 530. As the District

Contrary to Shelby County’s argument, redistricting to “dilute the weight of the 
minority vote,” Br. at 28-29, necessarily involves excluding certain minority 
individuals from voting in a particular constituency—which is precisely what 
Tuskegee, Alabama had done in Gomillion, and which undeniably violates the 
Fifteenth Amendment.

24



Court correctly held, this analytic step also reiterates the Court’s approach in 

Katzenbach and Rome. JA541.

Section 5 clearly remains “an appropriate response” to the ongoing pattern 

of discrimination in voting revealed by the 2006 reauthorization. In Boerne, the 

Court highlighted Section 5’s geographic restrictions; its limitation to “a discrete 

class of state laws, i.e., state voting laws”; the provision that covered jurisdictions 

may “bail out” of coverage when the requisite showing can be made; and its 

termination date as important indicators that the “means” Congress has chosen in 

Section 5 “are proportionate to ends legitimate under [the Reconstruction 

Amendments].” 521 U.S. at 532-33. All of these limitations remain in place.

Furthermore, the only goal of Section 5 is to enforce the express 

constitutional prohibition on race discrimination in voting. This stands in stark 

contrast to the laws at issue in Hibbs and Lane—which created new substantive 

obligations concerning family leave and disability access, and a private cause of 

action for money damages with respect to those new benefits. See Hibbs, 538 U.S. 

at 744-45 (Kennedy, J., dissenting); Alden v. Maine, 527 U.S. 706, 751 (1999). 

Whether Congress’s authority is considered from the perspective of Katzenbach 

and Rome, or the Boerne refinements on that mode of analysis, Congress is entitled 

to substantial deference in selecting the means by which “the blight of racial

25



discrimination in voting,” may be remedied and deterred. Katzenbach, 383 U.S. at 

308.

II. THE LEGISLATIVE RECORD ESTABLISHES THE 
CONSTITUTIONALITY OF SECTION 5

Congress’s decision to reauthorize Section 5 was based on a record 

demonstrating a “pattern of constitutional violations on the part of the States in this 

area.” Hibbs, 538 U.S. at 729. The District Court considered ten categories of 

evidence from the legislative record which bear, directly or indirectly, on the 

persistence of ongoing intentional voting discrimination in covered jurisdictions. 

Moreover, instances of repetitive violations of minority voting rights pervade the 

legislative record, further demonstrating the need for remedies that go beyond 

case-by-case enforcement.

A. The Legislative Record Is Replete with Evidence of Repetitive 
Violations of Minority Voting Rights

The legislative record contains scores of serial violations of minority voting 

rights by covered jurisdictions. What follows are illustrative, but far from 

exhaustive, examples of those repetitive violations, which, along with other 

evidence discussed infra pgs. 38-52, illustrate the nature, frequency and severity of 

voting discrimination that persists throughout covered jurisdictions, and leave no 

doubt Section 5 remains “appropriate” remedial legislation.

26



The discussion below reveals three important themes. First, despite 

undeniable progress since the 1960s, many of the same jurisdictions with the worst 

discriminatory records prior to 1982 have continued to engage in discriminatory 

practices throughout the reauthorization period. Second, covered jurisdictions have 

resorted to a variety of strategies for accomplishing the same discriminatory ends, 

pouring ‘“old poison into new bottles.’” JA597 (citation omitted). Third, covered 

jurisdictions have frequently engaged in multiple acts of discrimination to 

minimize minority electoral opportunity at the moment that minority political 

power is emerging.

1. Examples of Repetitive Violations Initiated at the State Level

Texas Redistricting. Overall, six objections to Texas preclearance 

submissions of statewide redistricting plans served to protect 359,978 African- 

American and Hispanic voters during the reauthorization period. JA562. For 

example, in 2006, Congress learned that, since Texas became a covered state in 

1975, every redistricting plan for Texas’s House of Representatives had drawn a 

Section 5 objection. October 25, 2005 (History) Hearing, at 2177-80, 2319-23, 

2518-23. Following objections after the 1980 and 1990 Censuses, DOJ found the 

State’s post-2000 House redistricting plan retrogressive because it eliminated three 

Latino-majority districts, and fragmented Latino populations in a manner that 

“deviates from the State’s traditional redistricting principles[.]” Id. at 2521. This

27



discriminatory conduct was not limited to the Texas House plans. In 2003, just as 

Latinos in one congressional district were “poised to elect their candidate of 

choice,” Texas engaged in a mid-decade Congressional redistricting, “t[aking] 

away the Latinos’ opportunity because Latinos were about to exercise it.” LULAC 

v. Texas, 548 U.S. 399, 438, 440 (2006). The Supreme Court found that the plan 

violated Section 2 of the Voting Rights Act, and “bears the mark of intentional 

discrimination that could give rise to an equal protection violation.” Id. at 440. But 

even after the Supreme Court’s decision, state officials, without requesting 

preclearance, attempted to curtail early voting in the special election held in the 

remedial district, and were only deterred by a Section 5 enforcement action. See 

LULAC v. Texas, No. 06-cv-1046 (W.D. Tex.). Most recently, Texas was denied 

summary judgment in preclearance litigation for its post-2010 House, Senate, and 

Congressional redistricting plans. Texas v. Holder, No. ll-cv-1303, Dkt. No. 106 

at 2, (D.D.C. Nov. 8,2011).

Louisiana Redistricting. Congress likewise learned “that not one 

redistricting plan for the Louisiana House of Representatives had ever been 

precleared as originally submitted.” Nw. Austin Mun. Util. Dist. No. One v. 

Mukasey, 573 F. Supp. 2d 221, 251 (D. D.C. 2008); see also JA561. As to the post- 

2000 plan, in, La. House o f Representatives v. Ashcroft, No. 02-cv-62 (D.D.C.), 

Louisiana officials admitted that they had intentionally “obliterated” a majority-

28



Black district in order to enhance electoral opportunities for white voters, in a 

manner that violated the state’s own redistricting principles. JA575-77; March 8, 

2006 Hearing, at 1607-08. Ten years earlier, Louisiana had similarly discriminated 

against Blacks in its house redistricting by selectively applying redistricting 

criteria. October 25, 2005 (History) Hearing, at 951-52.

Arizona Redistricting. Congress also learned that Arizona had drawn Section 

5 objections to its statewide legislative redistricting plans after each decennial 

census since it became a fully covered state in 1975. In 2001, DOJ concluded that 

aspects of Arizona’s legislative redistricting plan were intentionally retrogressive 

for Latino voters. Id. at 500. Ten years earlier, DOJ similarly concluded that 

Arizona’s redistricting plan following the 1990 Census discriminated against 

Latino voters, and that the State had provided pretextual reasons for rejecting non- 

discriminatory alternatives. Id. at 476, 481-82. Likewise, after the 1980 Census, the 

State could not offer a plausible non-discriminatory reason for enacting a 

redistricting plan that was retrogressive for American Indian voters. Id. at 454-55.

Mississippi’s Dual Registration System. In the 1980s, Black voters 

challenged Mississippi’s dual registration requirement for municipal and non­

municipal elections, which had been enacted during the late 1800s as part of the 

“Mississippi Plan” to deny Blacks the right to vote. The district court invalidated 

the requirement under Section 2, finding that it still had its intended discriminatory

29



consequences: many Blacks were not registered because the burdens of the dual 

registration system fell more heavily on Black citizens, who disproportionately 

lacked access to automobiles or telephones. Miss. State Chapter, Operation PUSH 

v. Al/ain, 674 F. Supp. 1245, 1251-55 (N.D. Miss. 1987). Then, just four years 

after the Fifth Circuit affirmed that decision, 932 F.2d 400 (5th Cir. 1991), the 

State once again established a dual registration system—this time for state versus 

federal elections—and refused to seek preclearance until so ordered by the 

Supreme Court. Young v. Fordice, 520 U.S. 273 (1997). DOJ ultimately denied 

preclearance, noting that the system’s racially discriminatory effects “were not just 

foreseeable but almost certain to follow.” October 25, 2005 (History) Hearing, at 

1603. See also JA579-80.

South Carolina’s Backlash to the Growth o f Minority Voting Power. After 

the 2000 election, African Americans obtained a majority of seats on the 

Charleston County school board for the first time in history, but that watershed 

moment was met with efforts in the state legislature to alter the method of election 

for, or reduce the powers of, the board. United States v. Charleston Cnty., 316 F. 

Supp. 2d 268, 286 n.23 (D.S.C. 2003). Then, in 2003, a federal court held that 

Charleston’s at-large method of electing county councilmembers violated Section 2 

of the VRA, and also noted “significant evidence of intimidation and harassment” 

by poll managers over several decades in predominately minority precincts, which

30



“never occurred at predominately white polling places.” Id., aff’d, 365 F.3d 341 

(4th Cir. 2004); see JA584-55. Nevertheless, the following year, the South 

Carolina legislature enacted legislation requiring a return to the same method of 

election that had been declared illegal only a year earlier. March 8, 2006 Hearing, 

at 175-76. DOJ objected under Section 5 and quickly blocked the discriminatory 

change. Notably, however, the earlier Section 2 litigation lasted several years and 

cost millions of dollars. Id.

Similar events took place in South Carolina during the preceding decade. In 

the mid-1990s, after Section 2 litigation resulted in a consent decree that changed 

the method of electing school board members in Spartanburg, South Carolina, the 

South Carolina legislature responded by abolishing the board. October 25, 2005 

(History) Hearing, at 2041-43. In interposing a Section 5 objection, DOJ found 

that “[t]he sequence of events surrounding the adoption of [the law abolishing the 

board] gives rise to an obvious inference of discriminatory purpose.” Id. at 2042. 

Nonetheless, South Carolina attempted to abolish the board again the next year by 

de-funding it; this gamesmanship was only stopped by another discriminatory- 

purpose objection under Section 5. Id. at 2051.

Repetitive discriminatory practices at the statewide level were not isolated 

incidents. Indeed, nearly all covered states engaged in serial discriminatory acts at 

the state level. Nw. Austin, 573 F. Supp. 2d at 285 (Map 5B, listing states subject to

31



multiple statewide objections during the reauthorization period); JA585-86 (South 

Dakota); JA588 and October 25, 2005 (History) Hearing, at 264-66, 385-87 

(Alabama); id. at 1183-86 (Mississippi).

2. Examples of Repetitive Violations at the Local Level

The record also included hundreds of examples of discriminatory voting 

changes in counties and cities, particularly in areas with high percentages of 

minority voters. See, e.g., Nw. Austin, 573 F. Supp. 2d at 251 (maps 5F and 5G, 

showing geographic breadth of local objections in Louisiana and Mississippi, and 

concentrations in areas with large minority populations); July 13, 2006 Hearing, at 

250-68 (J. Greenbaum, discussing numerous examples of repetitive violations at 

the local level throughout covered states). What follows are several illustrative 

examples.

Seguin, Texas. The City finally abandoned discriminatory methods of 

election after three separate lawsuits between 1978 and 1993. However, after the 

2000 Census revealed that Latinos had become a majority in five of eight districts, 

the City responded by dismantling a Latino-majority district. When DOJ indicated 

preclearance was unlikely, the City withdrew its proposal but, without seeking 

preclearance, manipulated the candidate filing period to prevent any Latino 

candidate from competing in the district. Only a Section 5 enforcement action 

deterred this blatant discrimination. Perales, Voting Rights in Texas, 1982-2006,

32



Nw. Austin Mun. Util. Dist. No. 1 v. Gonzales, No. 06-cv-1364 (D.D.C.), Dkt. No. 

100-12, Ex. 8 at 36; July 13, 2006 Hearing, at 357 (Texas); and LULAC v. City o f 

Seguin, No. 02-cv-369 (W.D. Tex. Apr. 16, 2002) (TRO).

Northampton County, Virginia. DOJ interposed three objections between 

2001 and 2003 to prevent the County from implementing a retrogressive 

redistricting plan. October 25, 2005 (History) Hearing, at 224, 2484-86, 2592-95; 

March 8, 2006 Hearing, at 2040. Despite racially polarized voting, the County 

sought to switch from six single-member districts, three of which were majority- 

minority, to three dual-member districts, all with majority-white voting-age 

populations. In objecting to the plan, DOJ noted that the county’s stated 

justification was inaccurate, and that it had inexplicably abandoned consideration 

of non-retrogressive alternatives. October 25, 2005 (History) Hearing, at 2484-86.

Selma, Alabama. After the 1990 Census revealed that Selma’s Black 

population had grown to 58%, the City enacted a redistricting plan whose aim was 

to deny Blacks an opportunity to elect a majority of city councilmembers, by 

packing Black voters into four of nine council districts (three over 90% Black). Id. 

at 391. DOJ objected, finding the City was “motivated by the desire to confine 

Black population concentrations into a predetermined number of districts, and thus 

ensure a continuation of the current white majority on the council.” Id. at 392. 

Selma then submitted yet another intentionally discriminatory redistricting plan

33



designed to “fragment[] black population concentrations” to prevent Blacks from 

electing a majority of councilmembers, but was again blocked by a Section 5 

objection. Id. at 403.

Mt. Olive, North Carolina. Two months after agreeing in 1993 to settle a 

Section 2 lawsuit challenging the town’s use of at-large elections, the town 

abandoned the agreed-upon remedy, and adopted a new discriminatory plan. DOJ 

interposed a discriminatory-purpose objection, concluding that the town’s 

justification appeared pretextual, and noting town officials’ extraordinary efforts to 

prohibit the only Black town commissioner from participating in the decision­

making process. Id. at 1823-24.8

Selective annexations. Congress learned that covered jurisdictions continue 

to use the tactic of selective annexations to prevent minority voters from electing 

candidates of choice. It took six Section 5 objections between 1994 and 1997 to 

prevent Shreveport, LA from implementing such annexations. March 8, 2006

For similar examples of repetitive efforts at minority vote dilution through 
redistricting and method-of-election changes, and/or efforts to prevent minorities 
from voting at all, see, e.g., JA566-67 (Albany, GA) (most recent effort at 
discrimination in 2001); JA578-79 (Waller County, TX) (2004); JA587 (North 
Johns, AL) (1989); October 25, 2005 (History) Hearing, at 397-99, 388-90, 327- 
29, 310-12 (Dallas County, AL) (1992); at 743-45 (Millen, GA) (1993); at 815-17 
(Jenkins, GA) (1995); at 1344-45, 1330-31, 1265-67 (Yazoo County, MS) (1986); 
at 1980-82, 2003-05 (Johnston, SC) (1993); at 1013-15, 985-86 (East Carroll 
Parish, LA) (1992); at 2300-03 (Lubbock County, TX) (1991); at 2513-17 (Haskell 
School District, TX) (2001); at 2359-60 (Terrell County, TX) (1992); at 2362-63, 
2409, 2416-18 (Bailey County, TX) (1993); at 2573 (Newport News, VA) (1993); 
March 8, 2006 Hearing, at 138-39, 2998-3005 (Wharton County, TX) (2000).

34



Hearing, at 1615-17. Similarly, after Foley, Alabama abandoned at-large elections 

in response to a Section 2 suit, it implemented a policy of encouraging annexation 

petitions from majority-white jurisdictions and discouraging them from majority- 

Black jurisdictions—a policy only blocked by a Section 5 objection. October 25, 

2005 (History) Hearing, at 406; see also Dillard v. City o f Foley, 926 F. Supp. 

1053, 1059 (M.D. Al. 1995) (describing prior Section 2 suit).9

Coordination between state and local officials. Local and state officials 

often worked together to violate minority voting rights. For example, in Hampton 

County, SC, local and state officials collaborated to block minority candidates 

from obtaining office on the local school board of trustees. In 1982, the South 

Carolina legislature abolished the County School Board, devolving its duties to 

two separate trustee boards for two separate school districts (one predominantly 

white, and one predominantly Black). NAACP v. Hampton Cnty. Election Comm ’n, 

470 U.S. 166 (1985). The State delayed submission of this change under Section 5 

for several months. Id. at 180. Then, while Section 5 review was pending, 

Hampton County, without seeking preclearance, opened the candidate filing period 

for elections for the boards of trustees. Id. at 171. Several experienced Black

9 For other similar examples, see, e.g., October 25, 2005 (History) Hearing, at 216 
(second objection in 6 years in Lamesa, TX); at 2028-30 (Hemingway, SC); at 
642-43 (Augusta, GA’s “racial quota system” of annexations); Nw. Austin, 573 F. 
Supp. 2d at 294, 297-98 (describing 2003 and 1998 objections in Town of North, 
South Carolina and Grenada, Mississippi).

35



school board members opted not to qualify for election, declining to lend 

credibility to the illegal implementation of an unprecleared voting change. October 

25, 2005 (History) Hearing, at 1905. Preclearance was ultimately obtained, but 

then, once again refusing to seek preclearance, the County scheduled its elections, 

without re-opening its candidate qualifying period, thus preventing a number of 

candidates who enjoyed substantial support in the Black community from running. 

Id. The Supreme Court unanimously held that preclearance was required, Hampton 

County, 470 U.S. at 182, after which DOJ interposed an objection. October 25, 

2005 (History) Hearing, at 1905.

As in each of the examples described above, discriminatory efforts in 

numerous other covered jurisdictions were only blocked by multiple objections 

under Section 5, or at least one Section 5 objection and one Section 5 enforcement 

action;10 or a combination of Section 2 (or constitutional) litigation and at least one

10 These jurisdictions, with the year of the most recent Section 5 action in 
parenthesis, include McComb, MS (2005); Iberville Parish, LA (2003); DeSoto 
Parish, LA (2002); Minden, LA (2002); Point Coupee Parish, LA (2002); 
Alabaster, AL (2000); St. Martinville, LA (1997); Shreveport, LA, (2002); Monroe 
County, MS (1995); Chickasaw County, MS (1995); Barnwell, SC (1994); St. 
Landry, LA (1994); Madison Parish, LA (1993); West Feliciana Parish, LA 
(1993); Lafayette Parish, LA (1993); East Carroll Parish, LA (1993); Batesburg, 
SC (1993); Sunflower County, MS (1992); Bolivar County, MS (1991); Leflore 
County, MS (1991); Morehouse Parish, LA (1992); Yazoo County, MS (1986). 
Since the VRA was reauthorized in 2006, Randolph County, Georgia and 
Fayetteville, North Carolina have joined this group of jurisdictions with multiple 
Section 5 actions since the 1982 reauthorization. See October 25, 2005 (History) 
Hearing, at 435-39 (Alabama examples); March 8, 2006 Hearing, at 1618-20,

36



Section 5 objection or enforcement action.11 Thus, although “gamesmanship” has 

never been a constitutional requirement for remedial legislation like Section 5, see, 

DOJ Br. at 56-57, Shelby County’s assertion that “there is no evidence that any 

covered jurisdiction is engaging in the type of gamesmanship and subterfuge that 

ma[k]e case-by-case enforcement futile,” Br. at 11, is flatly refuted by the record.

Along with other evidence in the record, examples like these leave no doubt 

that it was appropriate for Congress to conclude that “case-by-case enforcement” 

through “Section 2 would be ineffective to protect the rights of minority voters[.]” 

H.R. Rep. No. 109-478, at 57 (2006). Congress’s legislative judgment is entitled to

1667-69, 1651-54; October 25, 2005 (History) Hearing, at 1027, 1058-60, 1074- 
76, 1132 (Louisiana examples); March 8, 2006 Hearing, at 714-15; October 25, 
2005 (History) Hearing, at 159-72; May 10, 2006 Hearing, at 91 (Mississippi 
examples); March 8, 2006 Hearing, at 1030-31; October 25, 2005 (History) 
Hearing, at 188-91, 1873-75, 2032-48 (South Carolina examples).
11 These jurisdictions include Albany, Georgia (2003); Harnett County, NC (2002); 
Washington Parish, LA (1999); Tallapoosa, AL (1998); Granville County, NC 
(1996); Chickasaw County, MS (1995); Foley, AL (1995); Hemingway, SC 
(1994); Clay County, GA (1993); Calhoun County, GA (1992); Orangeburg, SC 
(1992); Edgefield County, SC (1992); Navajo and Apache Counties, AZ (1989); 
Richland County, SC (1988); Pitt County, NC (1988); Bladen County, NC (1987); 
Wilson County, NC (1986); Marengo County, AL (1986); Elizabeth City, NC 
(1986). See October 25, 2005 (History) Hearing, at 310-12, 429-34; Dillard, 926 
F. Supp. 1053 (Alabama examples); March 8, 2006 Hearing, at 1407-08 (Arizona); 
March 8, 2006 Hearing, at 634-35, 652-56, 686-90, 1526 n. 129; October 25, 2005 
(History) Hearing, at 138 (Georgia examples); March 8, 2006 Hearing, at 1616, 
1653 (Louisiana examples); March 8, 2006 Hearing, at 1715-16 (Mississippi); 
March 8, 2006 Hearing, at 1790-91; 1752-53, 1797-98; 1773-77; 1748; 1733-34 
(North Carolina examples); March 8, 2006 Hearing, at 1970, 1033-39; 1015-17; 
1964-65 (South Carolina examples).

37



deference, see infra pg. 53, and was supported by the record. Congress learned that 

Section 2 suits are among the most complex and resource intensive of all actions 

brought in federal court, often taking five years or more, with costs running into 

the millions of dollars. See, e.g., May 10, 2006 Hearing, at 96 (R. McDuff); May 9, 

2006 Hearing, at 141 (L. McDonald); May 17, 2006 Hearing, at 20, 80 (A. 

Derfner). Moreover, Section 2 allows the discriminatory practice to go into effect 

(often for several election cycles), and candidates who win election under a 

discriminatory plan gain the substantial advantages of incumbency. October 18, 

2005 Hearing, at 43-44 (multiple witnesses). Finally, Congress learned that 

minority voters at the local level (especially in rural communities) generally lack 

access to the resources and expertise necessary for successful Section 2 litigation. 

October 25, 2005 (History) Hearing, at 84 (A. Earls).

B. The District Court Correctly Found That There Is “Extensive Evidence
of Recent Voting Discrimination in th[e] Virtually Unprecedented
Legislative Record”12

The District Court considered ten separate categories of evidence from the 

legislative record, each of which is probative of the ongoing need for Section 5 to 

remedy and deter continuing voting discrimination in covered jurisdictions.

12 JA483.

38



1. Registration and Turnout Rates. The legislative record demonstrated 

“stark” disparities between Black and non-Hispanic white participation rates in 

many covered states, ranging from registration disparities of five percentage points 

in Louisiana and Texas and 14 points in Virginia, to turnout disparities of more 

than 20 points in Arizona and Florida. JA555-56. The record also showed “far 

greater gaps between Hispanic and non-Hispanic white voter registration rates,” 

including a 32-point gap in registration rates in Texas, and over 40 points in 

Arizona, California, and Virginia. Id. The District Court found that these 

disparities were “comparable to the disparity the Rome Court called ‘significant’” 

and deemed demonstrative of the ongoing need for Section 5. JA556 (quoting Nw. 

Austin, 573 F. Supp. 2d at 248).

2. Minority Elected Officials. The District Court found it “relevant that the 

percentage of minority elected officials continued to lag behind the percentage of 

the population,” both with respect to statewide office and in state legislatures. 

JA558-59. The record before Congress showed that “[i]n States such as Alabama, 

Georgia, Louisiana, Mississippi, South Carolina, and North Carolina, where 

African-Americans make up 35 percent of the population, African-Americans 

made up only 20.7 percent of the total number of State legislators.” H.R. Rep. No. 

109-478, at 33. The record also revealed a disproportionately lower number of 

Latino and Asian-American elected officials. Id. at 33-34.

39



Shelby County contends that “[t]he constitutionally relevant question” is the 

nature of the positions held by minorities, Br. at 40, but the 2006 record showed 

that no African American had been elected to statewide office in three covered 

states (Louisiana, Mississippi, and South Carolina), and only two had ever been 

elected in Alabama. JA558. See also Nw. Austin, 573 F. Supp. 2d at 249 (citing 

H.R. Rep. No. 109-478, at 18); July 13, 2006 Hearing, at 388-89.

Although minorities have seen more electoral success in recent years than in 

the 1960’s, this was also true at the time of Rome, when the Court noted 

“undeniable” progress in this regard. 446 U.S. at 181 (internal quotation marks 

omitted). Moreover, Shelby County fails to acknowledge that the vast majority of 

minority elected officials in covered jurisdictions are elected from majority- 

minority districts, many of which owe their existence to the VRA. See, e.g., H.R. 

Rep. 109-478 at 34; March 8, 2006 Hearing, at 222-223 (Report of the National 

Commission on the Voting Rights Act); June 21, 2006 Hearing, at 183-87 (D. 

Canon, noting that “only 49 of 8,047 [or 0.61%] elections in white-majority U.S. 

House districts have provided black winners since 1966”).

Of course, proportionality is neither a constitutional nor a statutory 

requirement, but the Supreme Court has made clear that minority electoral success 

in covered jurisdictions which falls “far short of being representative of the number 

of [minorities] residing in the covered jurisdictions,” is probative of the ongoing

40



need for Section 5. Rome, 446 U.S. at 181. And, notwithstanding Shelby County’s 

suggestion that this is no longer the law, Br. at 40, the Supreme Court continues to 

deem a lack of minority electoral success relevant in determining whether a state’s 

voting practices are discriminatory. See LULAC, 548 U.S. at 436; Johnson v. 

DeGrandy, 512 U.S. 997, 1000 (1994).

3. Section 5 Objections. The legislative record revealed over 700 Section 5 

objections between 1982 and 2006, JA564-65, with objections being lodged 

throughout covered jurisdictions. See Nw. Austin, 573 F. Supp. 2d at 284 (Map 5A, 

listing number of objections by state). Alabama alone was subject to 39 objections, 

including objections to a congressional redistricting plan and several county-wide 

redistricting plans. JA561. The significance of these numbers is heightened by the 

fact that “a single objection can often affect thousands of voters.” JA560.

Although Shelby County argues that, for many years, the Attorney General 

“objected to voting changes purely on retrogression,” and not discriminatory 

intent, Br. at 30-31, the record actually revealed that two-thirds of the objections 

during the reauthorization period were based in whole or in part on discriminatory 

intent. JA564-65. See also JA565-71 (describing objections where facts indicated 

discriminatory intent); Nw. Austin, 573 F. Supp. 2d at 289-301 (appendix listing 

“examples of objection letters based on discriminatory or retrogressive intent” 

from throughout covered jurisdictions). And, in any event, objections based on

41



retrogression alone provide a probative source of information as to the continuing 

need for Section 5, as the Supreme Court held in Rome that the Section 5 

retrogression standard is specifically premised on Congress’s valid finding that 

retrogressive “electoral changes by jurisdictions with a demonstrable history of 

intentional racial discrimination in voting create the risk of purposeful 

discrimination.” 446 U.S. at 177.

Shelby County makes much of the low rate of objections, Br. at 42, but, as 

the district court noted, the objection rate “has always been low.” JA559 (emphasis 

added). See also Nw. Austin, 573 F. Supp. 2d at 250-51 (observing that low 

objection rate “hardly means Section 5 has outlived its usefulness,” and noting that 

the nature of objections and types of submissions are far more telling of ongoing 

problems in covered jurisdictions) (citing, inter alia, Rome, 446 U.S. at 181). In 

fact, the objection rate fell most dramatically in the years immediately prior to 

Rome. May 9, 2006 Hearing, at 219 (R. Hasen).13

13
The District Court also explained that there were many plausible explanations 

for the decline in objection rates in the years leading up to the 2006 
reauthorization, including: (1) the end of the decennial redistricting cycle; (2) the 
Supreme Court’s ruling in Reno v. Bossier Parish School Board, 528 U.S. 320 
(2000), which temporarily limited the scope of the discriminatory purpose prong of 
Section 5; (3) under-enforcement by DOJ; (4) DOJ’s increased reliance on “more 
information” requests instead of objections; and (5) the effectiveness of Section 5 
in deterring discriminatory conduct. JA562-64. Far from mere “speculation],” Br. 
at 43, the District Court’s observations were based on substantial testimony in the 
legislative record.

42



Contrary to Shelby County’s assertions, it is the “number and nature” of 

objections, and not the rate, that is the relevant metric here. Rome, 446 U.S. at 181. 

As the District Court noted, any one discriminatory voting change potentially may 

affect “thousands of voters,” JA560. Such discrimination does not become less 

odious simply because other, non-discriminatory changes have also been 

implemented. In Lane, for instance, the Court looked strictly at “the sheer volume” 

of discriminatory conduct, and not at the rate of discrimination, in determining that 

remedial legislation was justified. 541 U.S. at 528. Thus, regardless of the 

objection rate, the fact remains that there were hundreds of objections in the 

record, most involving discriminatory intent, and many involving statewide voting 

changes that implicated the voting rights of tens of thousands of people. See 

JA560-62; Nw. Austin, 573 F. Supp. 2d at 285 (Map 5B, listing statewide 

objections).

Shelby County also asserts that the probative value of objections is 

“questionable,” Br. at 29, noting that objections are made without a trial or formal 

hearing, and that they may be lodged where the evidence is conflicting (because 

jurisdictions bear the burden of proof under Section 5). But “Congress obviously 

may avail itself of information from any probative source,” in determining what 

remedial legislation is appropriate under the Reconstruction Amendments.

43



Katzenbach, 383 U.S. at 330 (emphasis added). As noted above, Rome, 446 U.S. at 

181-82, specifically held that Section 5 objections are one such probative source.

And while the burden of proof under Section 5 lies with the submitting 

jurisdiction (as it did when Rome was decided), Shelby County does not even 

attempt to identify a single objection by DOJ where the evidence was conflicting 

or in equipoise. DOJ utilizes precisely the same preclearance standards as the 

District of Columbia District Court in making its preclearance determinations, 28

C.F.R. § 51.52, including the same test employed by courts where a plaintiff bears 

the burden of proof to demonstrate discriminatory intent under Arlington Heights 

v. Metropolitan Housing Development Corporation, 429 U.S. 252, 266 (1977).14

Shelby County also speculates that some Section 5 objections were invalid, 

based on assumptions about DOJ’s purported “maximization” approach during the 

1990s, Br. at 30, 43 n.7 (discussing Miller v. Johnson, 515 U.S. 900, 927 (1995)), 

but those assertions are divorced from the actual record. Shelby County notes that 

the number of objections dropped between 1994 and 1996 (the year after Miller 

was decided), but does not even attempt to identify objections that were 

purportedly problematic, or to demonstrate that a substantial number of the 

objections in 1994 (or earlier) were based on an impermissible policy of

14 See, e.g., October 25, 2005 (History) Hearing, at 1603-04 (applying Arlington 
Heights standard to Mississippi’s repeated efforts to re-implement its dual 
registration system).

44



maximization. In fact, only a very small number were even arguably based on a 

maximization theory. See October 25, 2005 (History) Hearing, at 225-2595 (copies 

of post-1982 objections).

As the District Court noted, the mid-decade decline in objections between 

1994 and 1996 is hardly surprising given that, as the decade progresses and the 

redistricting cycle winds down, the number of objections typically declines. JA562. 

And the number of objections actually declined most significantly in 1995 (from 

61 objections in 1994 to 19 in 1995),15 see S. Rep. No. 109-295, at 13 (2006), even 

though Miller was not decided until the end of the Court’s 1994-1995 term.

4. More Information Requests. The District Court found that hundreds of 

proposed voting changes were withdrawn in response to a “More Information 

Request” (MIR) from the Department of Justice (with estimates ranging from at 

least 205 and up to 855), and that these withdrawals were probative of ongoing 

voting discrimination. JA572. One study in the record showed that MIRs 

“enhanced the deterrent effect of Section 5,” and blocked six times as many 

discriminatory changes as Section 5 objection letters. June 13, 2006 Hearing, at 

213, 226 (Report of L. Fraga and M. Ocampo, noting ratio of MIR outcomes to 

objections from 1982 to 2005). 15

15 Shelby County’s source lists objection statistics by year, but does not break them 
down by month.

45



Shelby County does not dispute these numbers, arguing instead that 

Congress’s findings as to the probative value of MIRs amount to “unfounded 

speculation.” Br. at 33. But the evidence before Congress shows otherwise. An 

MIR “signal[s] to a submitting jurisdiction that [DOJ] has concerns regarding the 

potentially discriminatory intent or effect of a proposed change.” Id. at 212. 

Jurisdictions can respond by providing information that establishes that the change 

is non-discriminatory, or they can (1) withdraw the requested change “because it is 

discriminatory”; (2) file a “new or amended non-discriminatory voting plan”; or 

(3) offer no response. H.R. Rep. No. 109-478, at 40. Congress heard testimony 

explaining that, in each of those three instances, the “MIR-induced outcome” is 

highly probative of discrimination. See June 13, 2006 Hearing, at 210-226 (L. 

Fraga and M. Ocampo).

Congress then found that these outcomes “are often illustrative of a 

jurisdiction’s motives,” and concluded that the increased number of revised 

submissions and withdrawals during the last 25 years represents “strong [evidence] 

of continued efforts to discriminate.” H.R. Rep. No. 109-478, at 40, 36. As two 

District Courts have recognized, Congress’s factual finding on this point is 

eminently reasonable. See JA572-73; Nw. Austin, 573 F. Supp. 2d at 254-55.

5. Judicial Preclearance Suits. There were 25 declaratory judgment actions 

in which a covered jurisdiction failed to obtain preclearance between 1982 and

46



2005, including several examples of judicial decisions denying preclearance that 

reveal evidence of intentional discrimination. See JA574; Nw. Austin, 573 F. Supp. 

2d at 255-56 (describing examples).

6. Section 5 Enforcement Suits. Congress also relied on evidence concerning 

105 successful Section 5 enforcement suits. JA577. Although Shelby County 

quibbles with the precise figure, Br. at 33-34, Congress reasoned that the evidence 

regarding Section 5 enforcement actions demonstrated that many covered 

jurisdictions willfully attempt to enact and enforce voting changes without the 

knowledge of the federal government, and, as the District Court concluded, it was 

reasonable to conclude that this defiance was indicative of discriminatory intent. 

See JA578. Indeed, the District Court noted several notorious “examples of suits in 

which the unprecleared voting change appeared to have been motivated by 

discriminatory animus.” Id. (listing examples); Nw. Austin, 573 F. Supp. 2d at 257 

(additional examples); DOJ Br. at 34 (describing South Dakota litigation).

7. Section 2 Litigation. The legislative record contained 14 electronically 

reported Section 2 cases involving findings of intentional discrimination in covered 

jurisdictions, and a total of over 650 Section 2 cases in the covered jurisdictions 

resolved favorably for plaintiffs since 1982. JA581-82. On an annual basis, this 

translates to over 25 successful suits every year in covered jurisdictions.

47



Successful Section 2 suits are probative of unconstitutional conduct even 

when they do not result in a formal judicial finding of intentional discrimination. 

Although Section 2 does not require such a finding, much of the evidence relevant 

to finding Section 2 liability is also probative of unconstitutional conduct. 

Compare Thornburg v. Gingles, 478 U.S. 30, 36-37 (1986) (setting forth test for 

liability under Section 2) with Rogers, 458 U.S. at 616-28 (setting forth test for 

unconstitutional discrimination); see also LULAC, 548 U.S. at 440 (in finding a 

Section 2 violation, noting that statewide redistricting plan “bears the mark of 

intentional discrimination that could give rise to an equal protection violation”). 

The Section 2 results standard is designed to be probative of intentional 

discrimination while avoiding “placing local judges in the difficult position of 

labeling their fellow public servants ‘racists.’” United States v. Blaine Cnty., 363 

F.3d 897, 908 (9th Cir. 2004). See also S. Rep. No. 97-417, at 36 (1982); May 16, 

2006 Hearing, at 6 (P. Karlan); DOJ Br. at 36-38.

Thus, as the District Court noted, “many instances of unconstitutional voting 

discrimination likely escape from judicial condemnation” in Section 2 suits 

because courts “avoid deciding constitutional questions if a case can be resolved 

on narrower, statutory grounds.” JA583-88 (citing cases). See also LULAC, 548 

U.S. at 440; Nw. Austin, 573 F. Supp. 2d at 259-62 (examples of section 2 

litigation). It was plainly appropriate for Congress to rely on the hundreds of

48



successful Section 2 suits in the covered jurisdictions since 1982 as probative of 

ongoing intentional discrimination. Katzenbach, 383 U.S. at 330 (“Congress 

obviously may avail itself of information from any probative source”).

Relying on a post-enactment document, S. Rep. 109-295,16 Shelby County 

attempts to avoid this evidence by asserting that “half [of the cases in the record 

finding intentional discrimination] ... involved discrimination against white 

voters.” Br. at 10-11. But this is a misstatement of the actual record. This 

“Report”—which was not endorsed by a majority of the Senate Judiciary 

Committee, see 152 Cong. Rec. S8372 (daily ed. July 27, 2006)—was incorrect, as 

there were no cases of intentional discrimination against white voters. All of the 

cases referred therein actually involved claims under Shaw, 509 U.S. 630, which 

are “analytically distinct” from claims of intentional racial discrimination against a 

particular voter or group, Miller, 515 U.S. at 911; Shaw claims are based on the 

conclusion that all voters, of all races, may be harmed when race is unnecessarily 

the predominant factor in districting decisions. Id. at 911-13.

8. Federal Observers. “Between 1982 and 2006, 300 to 600 federal

observers were assigned annually to observe elections in covered jurisdictions.”

JA589. This figure is significant because observers can be deployed by the

Attorney General “‘only when there is a reasonable belief that minority citizens are

16 See S. Rep. 109-295, at 55 (“post-passage legislative history is a contradiction in 
terms”).

49



at risk of being disenfranchised,’ often through ‘harassment and intimidation inside 

polling locations.’” Nw. Austin, 573 F. Supp. 2d at 262 (quoting H.R. Rep. No. 

109-478, at 44).

The record was replete with evidence of the need for federal monitors to 

prevent malfeasance at the polls. In one particularly troubling incident in Alabama, 

an African-American State Senator was arrested and taken to jail after attempting 

to prevent white poll workers in Hale County from “closing the doors on African- 

American voters.” JA590 (quoting March 8, 2006 Hearing, at 298). Congress 

learned that similar tactics were common in the County. See March 8, 2006 

Hearing, at 302 (Nat’l Comm’n on VRA). Other egregious examples are discussed 

by the Attorney General. DOJ Br. at 39-40.

9. Racially Polarized Voting and Vote Dilution. In reauthorizing Section 5 in 

2006, Congress found that “[t]he continued evidence of racially polarized voting in 

each of the jurisdictions covered by the expiring provisions of the Voting Rights 

Act of 1965 demonstrates that racial and language minorities remain politically 

vulnerable, warranting the continued protection of the Voting Rights Act of 1965.” 

Pub. L. 109-246, § 2(b)(3), 120 Stat. 577. Moreover, as the District Court noted, 

the record revealed “the persistence of racially polarized voting” (“RPV”) in 

covered jurisdictions, and that RPV is increasing, not decreasing. JA592-93. H.R. 

Rep. 109-478, at 34.

50



Although not state action, RPV is relevant because it is one of the factors 

that must be taken into account under both Sections 2 and 5 in evaluating whether 

a voting provision—which is state action—is discriminatory. See, e.g., Rome, 446 

U.S. at 183; City o f Port Arthur v. United States, 459 U.S. 159, 163 (1982); 

Thornburg, 478 U.S. at 47. As the District Court observed, measures to dilute 

minority voting strength “can only be effective in areas that are marked by racially 

polarized voting.” JA595. See also Nw. Austin, 573 F. Supp. 2d at 263 (RPV is “a 

necessary precondition for vote dilution”) (citing H.R. Rep. 109-478, at 34-35). 

Indeed, officials in jurisdictions that implement voting changes are highly likely to 

be aware of, and are sometimes motivated by, their expected discriminatory impact 

in the context of RPV. See, e.g., Rogers, 458 U.S. at 623 (explaining that the 

existence of RPV “bear[s] heavily on the issue of purposeful discrimination 

[because vjoting along racial lines allows those elected to ignore black interests 

without fear of political consequences”); October 25, 2005 (Need) Hearing, at 52- 

53 (D. Engstrom, explaining that RPV is a necessary condition for vote dilution); 

May 16, 2006 Hearing, at 127 (T. Arrington) (same).17

17 And, the Court has continued to sustain remedial legislation based in part on 
evidence concerning discrimination by private actors in the Boerne line of cases. 
See, e.g., Hibbs, 538 U.S. at 730-31. Hibbs record “contained little specific 
evidence of a pattern of unconstitutional discrimination on the part of the States,” 
but instead the evidence before Congress “related primarily to the practices of 
private-sector employers and the Federal Government.” Id. at 527 n. 16.

51



Accordingly, the Supreme Court recently emphasized that the continuing 

prevalence of racial polarization indicates that “[m]uch remains to be done to 

ensure that citizens of all races have equal opportunity to share and participate in 

our democratic processes and traditions.” Bartlett v. Strickland, 129 S. Ct. 1231, 

1249 (2009).

10. Section 5 ’s Deterrent Effect. Congress found that “[a]ny assessment of 

the persistence of intentional voting discrimination by covered jurisdictions must 

also take into account ‘the number of voting changes that have never gone forward 

as a result of Section 5.’” JA598 (quoting H.R. Rep. 109-478, at 24). The District 

Court concluded that Section 5 has a “substantial deterrent effect,” such that it is 

“fair to assume that the instances of intentional voting discrimination documented 

in the legislative record represent only a fraction of those instances that otherwise 

would have occurred in the absence of Section 5.” JA598, JA601 (emphasis 

added); see also Nw. Austin, 129 S. Ct. at 2513 (“The District Court also found that 

the record ‘demonstrated] that section 5 prevents discriminatory voting changes’ 

by ‘quietly but effectively deterring discriminatory changes.’”) (quoting Nw. 

Austin, 573 F. Supp. 2d at 264).

Shelby County seeks to dismiss this evidence by mischaracterizing the 

District Court’s opinion. The District Court did not “rest[] on the absence of 

evidence of voting discrimination as the proof that preclearance is needed.” Br. at

52



45. Rather, the Court noted that, notwithstanding significant progress, the record 

revealed that discrimination against minority voters remains widespread in the 

covered jurisdictions even with the Section 5 protection in place, and would have 

been even worse without Section 5. JA598-99. This is not only a matter of 

common sense, it was also amply supported by specific evidence in the record, 

including testimony from scholars and practitioners, as well as specific concrete 

examples documenting Section 5’s deterrent effect. See JA599; Nw. Austin, 573 F. 

Supp. 2d at 264-65.

*  *  *

In sum, Congress reasonably determined that the overwhelming evidence of 

ongoing voting discrimination in the covered jurisdictions meant that Section 5 

remains necessary to remedy and deter discrimination against minority voters. As 

the District Court concluded, the legislative record is “at least as strong as that held 

sufficient to uphold the 1975 reauthorization of Section 5 in City o f Rome.” JA601. 

Moreover, 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 both Hibbs and Lane.” JA604-05 

(emphasis added). See also JA607-08; Nw. Austin, 573 F. Supp. 2d at 271 (the 

evidence of discrimination in Hibbs and Lane “pales in comparison to the 

extensive record Congress compiled when extending section 5”).

53



As explained above, in reviewing this substantial record of ongoing voting 

discrimination in covered jurisdictions, Congress’s predictive judgments are 

entitled to substantial deference. “The Fifteenth Amendment empowers 

‘Congress,’ not the Court, to determine in the first instance what legislation is 

needed to enforce it.” Nw. Austin, 129 S. Ct. at 2513. See also JA483. A court does 

not review de novo the evidence before Congress—which is “far better equipped 

than the judiciary to amass and evaluate ... vast amounts of data”—to decide 

whether, in the court’s view, Congress’s determinations were “correct”; to the 

contrary, a court’s usole obligation is ‘to assure that, in formulating its judgments, 

Congress has drawn reasonable inferences based on substantial evidence....’ 

[Substantiality is to be measured in this context by a standard more deferential 

than we accord to judgments of an administrative agency.” Turner Broad. Sys. v. 

F.C.C., 520 U.S. 180, 195, 211 (1997) (emphasis added).

III. THE LEGISLATIVE RECORD ESTABLISHES THE
CONSTITUTIONALITY OF SECTION 4(B)

The coverage provision today remains “rational in both practice and theory,” 

just as it was when initially adopted in 1965. Katzenbach, 383 U.S. at 330. The 

record supported Congress’s decision to reauthorize the Section 4(b) coverage 

provision because: first, the covered jurisdictions—i.e., jurisdictions with 

significant histories of voting discrimination—were continuing to suffer from 

persistent and ongoing racial discrimination in voting; and, second, generally,

54



voting discrimination in the covered areas is markedly worse than in the non- 

covered areas. Consistent with its constitutionally delegated role, Congress 

identified those jurisdictions that, in its view, were most likely to continue to have 

ongoing problems with discrimination. Congress’s coverage criteria remain 

“sufficiently related” to the problem of voting discrimination, Nw. Austin, 129 S. 

Ct. at 2512, and thus remain “appropriate legislation” for “enforc[ing]” the 

prohibitions of the Fourteenth and Fifteenth Amendments.

A. The Rationale Underlying Section 4(b) Is Constitutionally Sound

1. The Coverage Criteria

The jurisdictions now subject to Section 5 are covered due to the 

conjunction of the following criteria: (1) they are identified for coverage by the 

Section 4(b) coverage provision, enacted in 1965 and amended in 1970 and 1975; 

(2) they have remained covered following the periodic reviews conducted by 

Congress in 1970, 1975, 1982 and 2006, required under Section 4, in which 

Congress determined that preclearance continues to be needed in these 

jurisdictions; and (3) they have not “bailed out” under Section 4(a).

Section 4 coverage: Congress designed the Section 4 coverage provision to 

identify those states and political subdivisions that it knew to have histories of 

persistent and widespread discrimination in voting. JA491. As explained in 

Katzenbach, Congress essentially engineered the formula so as to capture those

55



particular jurisdictions: Congress began its legislative “work with reliable evidence 

of actual voting discrimination” in particular states and political subdivisions, and 

the coverage formula then “evolved to describe these areas.” 383 U.S. at 329. 

Thus, the District Court explained that the coverage formula was ‘“a formally 

neutral device for capturing a more historically based truth.’” JA491.

The coverage provision identifies those states and political subdivisions 

which: (1) maintained a voting “test or device”18 as of November 1964, 1968, or 

1972; and (2) at the same time, had a low registration or turnout rate (below half of 

the voting age population (1964, 1968) or citizen voting age population (1972)). 

When adopted, these criteria were considered “relevant to the problem of voting 

discrimination,” Katzenbach, 383 U.S. at 329, and thus “appropriate,” because 

voting tests and devices had a “long history as a tool for perpetuating the evil [of 

voting discrimination],” id. at 330, and efforts to disenfranchise voters 

“obvious[ly]... affect[s] the number of actual voters.” Id.

18 The term “test or device,” as adopted in 1965 and relied upon in 1970, included 
practices such as literacy and moral character tests. Pub. L. 89-110, § 4(c), 79 Stat. 
437, 438 (1965); Pub. L. No. 91-285, §6, 84 Stat. 314, 315 (1970). For the 1975 
determinations, Congress also included jurisdictions that implemented English- 
only elections where at least five percent of the citizen voting age population 
belonged to a single language-minority group. Pub. L. No. 94-73, § 203, 89 Stat. 
400, 401-02(1975).

56



Congress’s periodic reviews: Congress has ensured that coverage remains 

justified “by current needs,” Nw. Austin, 129 S. Ct. at 2512, by including in the 

1965 enactment, and each subsequent reauthorization, sunset provisions requiring 

Congress to periodically re-evaluate the scope of coverage. Section 5 initially was 

to terminate in 1970, and then, successively, in 1975, 1982, and 2007; the current 

reauthorization will expire in 2031.19 Jurisdictions remain covered today only 

because Congress concluded, after each reassessment, that there was a continuing 

need for this remedy in these jurisdictions.

Section 4 bailout provision: From the outset, Congress has

“[a]cknowledg[ed] the possibility of overbreadth,” and thus has provided in 

Section 4 “for termination of special statutory coverage at the behest of [covered] 

States and political subdivisions.” Katzenbach, 383 U.S. at 331. Originally, bailout 

was designed to identify any jurisdictions wrongly covered at the outset by the

19 The Section 4 coverage provisions as adopted in 1965, and extended in 1970 and 
1975, did not include explicit sunset dates, but the provisions were written to 
provide that covered areas generally would be entitled to bail out after a set period 
of time (i.e., in 1970, 1975, and then 1982), which had the same effect as a sunset 
date. Pub. L. No. 89-110, § 4(a), 79 Stat. 437, 438 (1965); Pub. L. No. 91-285, § 3, 
84 Stat. 314, 315 (1970); Pub. L. No. 94-73, §§ 101, 201, 89 Stat. 400-01 (1975). 
Both the 1982 extension, Pub. L. No. 97-205, § 2(b)(8), 96 Stat. 131, 133 (1982), 
and the 2006 extension, Pub. L. No. 109-246, § 4, 120 Stat. 577, 580, have 
included explicit sunset dates, codified in Section 4(a)(8).

57



formula.20 In 1982, Congress “substantially] liberalize^]” the bailout provision 

by amending it to focus on recent electoral conditions (i.e., “current needs”), Mv. 

Austin, 129 S. Ct. at 2512, while expanding the range of jurisdictions separately 

eligible for bailout to over 900, DOJ Br. at 74. That number has expanded multi­

fold following the Supreme Court’s ruling in Northwest Austin, which permits all 

covered jurisdictions and their political subunits to seek bailout. See 129 S. Ct. at 

2516-17.

Thus, Section 4 includes a flexible and multifaceted set of provisions that 

tailor coverage to the jurisdictions where the preclearance remedy continues to be 

needed.

2. Congress in 2006 Employed an Appropriate Coverage Theory

Shelby County claims that coverage lacks a proper theoretical foundation by 

focusing exclusively and, thus, mistakenly, on the role played by the coverage 

formula in determining which jurisdictions are covered today. Br. at 58 (“the 

decades-old data coverage formula bears no relation whatsoever to current 

conditions”). The County’s argument ignores that coverage has only continued 

subject to Congress’s periodic reassessments, which have never been tied to 

participation rates in older elections, but rather have always been based on the

20 See citations to the 1965 enactment, and the 1970 and 1975 amendments in the 
prior footnote. Several jurisdictions made the requisite showing and bailed out. S. 
Rep. No. 97-417, at 45.

58



current record of ongoing voting discrimination. As was reiterated to Congress in 

2006, “depressed turnout and registration levels were an indicator [in 1965] of the 

larger problem of entrenched discrimination in voting ... and not the end itself.” 

May 17, 2006 Hearing, at 33 (D. Days). See also id. at 73 (A. Derfner); id. at 130 

(N. Persily).

Thus, Congress, in 2006, relied on the same coverage theory upheld in 

Rome, i. e., that Congress may reauthorize coverage in the areas identified by the 

original coverage formula where its periodic reviews disclose a record of ongoing 

voting discrimination. As Representative Sensenbrenner explained, Congress’s 

decision to retain the existing coverage provision was, “not predicated on 

[participation] statistics alone,” but rather “on recent and proven instances of 

discrimination in voting rights compiled in the ... 12,000-page record.” 152 Cong. 

Rec. H5181-82 (daily ed. July 13, 2006) (internal quotation marks omitted).

Congress therefore rejected a proposed amendment to “update” the coverage 

provision based on recent turnout statistics, which would have produced irrational 

results: for example, leaving Hawaii, a state that has “no discemable history of 

voting discrimination,” JA503 (citing 152 Cong. Rec. H5179-81 (daily ed. July 13, 

2006)), as the only state covered in its entirety, see Br. at 13, “turning] the Voting 

Rights Act into a farce.” 152 Cong. Rec. at H5181 (daily ed. July 13, 2006) (Rep. 

Sensenbrenner). Congress considered a range of different views on this proposal

59



and opted to maintain the existing coverage provision, a decision that was 

supported by the vast majority of witnesses, including past and former federal

9 1officials, leading academics, and advocates

Shelby County also claims that, to reauthorize coverage, Congress must 

exclusively rely on evidence of discrimination that matches “the factors that trigger 

coverage under Section 4(b),” Br. at 60, namely, evidence relating to voter 

participation rates and the use of tests or devices. This is plainly wrong. First, the 

County’s argument cannot be squared with the Supreme Court’s decision in Rome, 

which, as discussed supra pgs. 20-21, specifically endorsed Congress’s reliance on 

a broad range of discrimination evidence, including evidence of vote dilution. 

Second, as discussed supra pgs. 57-58, the coverage provision does not merely 

seek to ascertain where ballot access problems have occurred. Cnty. Council o f 

Sumter Cnty. v. United States, 555 F. Supp. 694, 707 (D.D.C. 1983) (“[T]he 

preclearance requirements ... had a much larger purpose than to increase voter 

registration ... to more than 50 percent.”). Instead, Congress identified 21

21 See, e.g., May 9, 2006 Hearing, at 76 (S. Issacharoff), 160-61 (T. Shaw); May 
10, 2006 Hearing, at 62 (W. Kim), 74 (N. Landreth), 86 (R. McDuff); May 16, 
2006 Hearing, at 41-42 (A. Earls), 99 (P. Karlan), 110 (R. Pildes); May 17, 2006 
Hearing, at 32 (D. Days), 73-74 (A. Derfner), at 135 (N. Persily); June 21, 2006 
Hearing, at 117 (D. Wright); June 21, 2006 Hearing, at 56 (D. Adegbile); July 13, 
2006 Hearing, at 29-30 (J. Avila), 50-51 (S. Ifill). Other witnesses testified in 
favor of changes in the scope of coverage, see May 10, 2006 Hearing, at 52 (G. 
Coleman); May 16, 2006 Hearing, at 76 (R. Gaddie); May 17, 2006 Hearing, at 
138-39 (A. Thernstrom); June 21, 2006 Hearing, at 104-05 (G. Reynolds); id. at 
112 (C. Swain); July 13, 2006 Hearing, at 45 (M. Carvin).

60



jurisdictions for coverage because of their significant histories of voting 

discrimination which, in turn, creates a likelihood of renewed discrimination in a 

variety of forms, necessitating the preclearance remedy. Finally, Shelby County 

sets out a standard that is impossible to satisfy: Congress cannot show the 

continuing existence of the exact same “factors that trigger coverage under Section 

4(b),” because one set of those factors—the use of a voting test or device—has 

been banned altogether under VRA. 42 U.S.C. § 1973b(4)(f)(4)(prohibition on 

English-only elections in jurisdictions covered, in part, due to their prior use of 

such elections), § 1973aa (nationwide prohibition on other voting tests and 

devices). No such showing was required in Rome, and no such showing is required 

here.

B. Congress Properly Concluded that the Legislative Record Contains 
Substantial Evidence that Voting Discrimination Remains More 
Prevalent In Covered Jurisdictions than in Non-Covered Jurisdictions

1. The Coverage Provision Is Neither Over-Inclusive Nor Under- 
Inclusive

The 2006 reauthorization record revealed the coverage provision was neither 

overinclusive nor underinclusive, and that sustained differences remain between 

covered and non-covered jurisdictions. Far from showing that covered jurisdictions 

have been swept up into coverage irrationally, the record demonstrated that Section 

5 has been necessary to block hundreds of acts of discrimination throughout 

covered jurisdictions, through DOJ objections, withdrawals of submissions in

61



response to MIRs, and declaratory judgment actions. See Nw. Austin, 573 F. Supp. 

2d at 288 (Map 9, listing combined totals of voting changes blocked by Section 5 

in each covered state). The record clearly shows that the problem of voting 

discrimination is spread amongst nearly all the covered areas, with certain states 

experiencing particularly high levels of discrimination (e.g., Texas, Mississippi, 

and Georgia each had a combined total of over 100 voting changes blocked by 

Section 5). Id.

Katzenbach makes clear that concerns regarding overinclusivesness on the 

margins do not implicate the facial constitutionality of Section 4(b). Congress has 

never been required to make findings as to every single covered jurisdiction. 

Indeed, Congress openly acknowledged in 1965 “that there may be areas covered 

under the formula of Section 4 where there has been no racial discrimination....,” 

H.R. Rep. No. 89-439 (1965), reprinted in 1965 U.S.C.C.A.N. 2437, 2445, which 

did not affect the Court’s ruling in Katzenbach. What is most important is that 

Section 5’s geographic coverage is based on “reliable evidence of actual voting 

discrimination in a great majority” of the jurisdictions being covered. 383 U.S. at 

329 (emphasis added). As shown, that standard was clearly satisfied in 2006.

99 This addresses concerns raised by amici involving the coverage provision’s 
application to jurisdictions with a history of discrimination against language 
minorities. In any event, Shelby County is not itself subject to coverage under the 
Act’s provisions regarding language minorities and did not raise arguments 
concerning this aspect of the coverage provision either in the court below or in its

62



Furthermore, that a few jurisdictions may be covered where there is no evidence of 

ongoing discrimination is of no constitutional significance, “at least in the absence 

of proof that they have been free of substantial voting discrimination in recent 

years.” Id. at 330. As noted, Section 4 explicitly addresses any such circumstance, 

by allowing all covered jurisdictions and their sub-units to bailout if they provide 

precisely that type of proof.

Nor is there any evidence of the coverage provision’s purported 

underinclusiveness. The legislative record was open for 10 months, and was “open 

and available for all groups of all opinions” to present their views, including 

numerous opponents of reauthorization who testified, and Congress repeatedly 

requested all interested parties to submit evidence concerning covered and non- 

covered jurisdictions alike. May 4, 2006 Hearing, at 70. Ultimately, “there [wa]s 

no evidence of significant and continuing violations of minority voting rights at the 

state and local level in non-covered jurisdictions” beyond “isolated incidents” and 

thus, no need to expand coverage to additional jurisdictions. May 16, 2006 

Hearing, at 47-48 (A. Earls). See also May 9, 2006 Hearing, at 162 (T. Shaw); 

May 17, 2006 Hearing, at 15, 33 (D. Days).

opening brief. Any unique concerns alleged with regard to this aspect of Section 
5’s coverage are inappropriate for this appeal. (They are the subject of separate 
pending litigation pending. See Arizona v. Holder, No. 1 l-cv-01559 (D.D.C.)).

63



Of course, this does not mean that there have never been problems with 

respect to voting discrimination outside of covered jurisdictions. But Katzenbach 

makes clear that the failure to capture every single jurisdiction with problems 

related to voting discrimination is “irrelevant,” because “[legislation need not deal 

with all phases of a problem in the same way.” 383 U.S. at 330 (citing Williamson 

v. Lee Optical, 348 U.S. 483 (1955) and Ry. Express Agency v. New York, 336 U.S. 

106 (1949)).23

2. Comparative Evidence Demonstrates that the Coverage Provision 
Remains Appropriate

Contrary to Shelby County’s suggestions, Br. at 68, Congress has never been 

required to compare covered and non-covered jurisdictions along every 

conceivable metric. ‘“The doctrine of equality of the States ... does not bar ... 

remedies for local evils,’” Nw. Austin, 129 S. Ct. at 2512 (quoting Katzenbach, 383 

U.S. at 328-29), so long as the distinctions have “some basis in practical 

experience.” Katzenbach, 383 U.S. at 328-29, 330-31 (emphasis added).

23 This principle makes particularly good sense in the enforcement legislation 
context. Given that Congress may enact nationwide legislation in response to 
evidence of discrimination in only certain jurisdictions, see Hibbs, 538 U.S. at 729- 
35, surely Congress may seek to confine remedial legislation to those jurisdictions 
where such legislation is especially needed, even if there results some level of 
arguable under-inclusiveness. Any other rule would require Congress to apply 
nationwide remedies even where the evidence reveals a need in only certain parts 
of the country.

64



Nevertheless, in 2006, Congress went beyond what it did in 1965, 1970, 

1975 or 1982, by compiling comparative evidence concerning differences between 

covered and non-covered jurisdictions. As the District Court recognized, the record 

contains several categories of evidence beyond participation rates, which 

demonstrate that “the 21 st century problem of voting discrimination remains more 

prevalent in those jurisdictions that have historically been subject to the 

preclearance requirement,” such that there is “a meaningful difference in voting 

discrimination between covered and non-covered jurisdictions.” JA627, JA629.

a. The Volume and Success Rate o f Section 2 Litigation. If Shelby County 

were correct that there are no sustained differences between covered and non- 

covered jurisdictions, one would expect to see far fewer successful Section 2 cases 

in the covered jurisdictions, for a number of reasons, including:

• Population Share. Less than one quarter of the nation’s total population lives 
in a covered jurisdiction. JA628.24

• Section 5 Coverage. “[Pjreclearance has blocked hundreds of intentionally 
discriminatory changes,” while also “quietly but effectively deterring” other 
discriminatory acts. Nw. Austin, 573 F. Supp. 2d at 258, 263; JA628.

• Observer Deployments. Federal election observers are sent more frequently 
to covered jurisdictions, with “[f]ive of the six States originally covered [by 
Section 5] ... accounting] for approximately 66 percent of all the observer

24 Even using minority population as the relevant metric instead of total population 
reveals that covered jurisdictions have substantially less than half of the country’s 
minority population (39% of African Americans, 32% of Latinos, and 25% of 
Native Americans). See May 9, 2006 Hearing, at 43-44 (C. Davidson).

65



coverages since 1982,” H.R. Rep. 109-478, at 24-25 (2006). The District 
Court noted that the presence of those observers served to “protect access to 
the ballot for racial and language minorities.” JA590.

Given these facts, the District Court properly concluded that “one would expect to

see fewer Section 2 cases [in the covered jurisdictions].” JA628 (emphasis in

original).

Remarkably, the opposite was true. Congress learned that most successful 

Section 2 cases occurred in covered jurisdictions, see H.R. Rep. No. 109-478, at 

53, and that “[pjlaintiffs in covered jurisdictions also won a higher percentage of 

the cases decided than did those in non-covered ones.” October 18, 2005 Hearing, 

at 974. See also DOJ Br. at 71-72 (data including non-reported cases). Adjusted for 

population, there were more than three times as many successful Section 2 cases in 

the covered jurisdictions than in non-covered jurisdictions. Cf May 16, 2006 

Hearing, at 13 (P. Karlan).

Shelby County notes that Congress made no express findings as to the 

greater prevalence of vote dilution schemes in covered as opposed to non-covered 

jurisdictions. Br. at 63. But Shelby County does not cite any previous findings— 

from either the initial 1965 authorization or any reauthorizations—as to the 

comparative quantum of any particular form of discrimination in covered as 

opposed to non-covered jurisdictions. In fact, as the District Court noted, in neither 

Katzenbach nor in Rome, did the Court “conduct any detailed comparative analysis

66



of voting discrimination in covered versus non-covered jurisdictions.” See JA622. 

What matters is that the record shows that the “statute’s disparate geographic 

coverage is sufficiently related to the problem that it targets,” Nw. Austin, 129 S. 

Ct. at 2512.

Shelby County also quibbles at the margins of the reauthorization record, by 

attempting to cherry-pick facts from a study of Section 2 litigation that was 

presented to Congress (the “Michigan Study”). For instance, Shelby County notes 

that, of the ten states that had the highest numbers of Section 2 cases filed, only 

five were fully covered. But Shelby County omits crucial facts from the Michigan 

Study (which, notably, included only electronically-reported cases and thus 

represents only a fraction of Section 2 litigation during the reauthorization period). 

The top ten states in terms of electronically-reported Section 2 cases filed were as 

follows:

67



T O P  T E N  S T A T E S  IN  N U M B E R  O F  S E C T IO N  2 C A S E S  F I L E D - ;

S tate

* F u lly  co v ered  

+ P artia lly  co v ered

N o. o f  
S ectio n  2 
C ases F iled

S u ccessfu l
O u tcom es

S u ccess  R ate P o p u la tion  tin  
m illio n s ^ 6

T exas * 34 9 26 .5% 25.1m

M ississipp i * 29 18 62 .1% 3.0m

N ew  Y ork  + 27 4 14.8% 19.4m

A lab am a * 25 12 48 .0% 4.8m

F lo rid a  + 23 7 30 .4% 18.8m

Illino is 20 9 45 .0% 12.8m

L ouisiana* 17 10 58.8% 4.5m

N . C aro lina  + 16 6 37.5% 9.5m

C alifo rn ia  f 15 3 20 .0% 37 .3m

G eorgia* 14 3 21 .4% 9.7m

Viewing the numbers comprehensively plainly supports the appropriateness of the 

coverage formula, and reveals the following facts:

• Number o f Cases Filed.

o Only one state on the “top ten” list is not covered by Section 5 in 
whole or in part: Illinois. * 26

See Voting Rights Initiative Master List, available at 
http://sitemaker.umich.edu/votingrights/files/masterlist.xls.
26 See U.S. Census Bureau, State & County QuickFacts, available at 
http://quickfacts.census.gov/qfd/index.html (hereinafter “Census QuickFacts”).

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http://sitemaker.umich.edu/votingrights/files/masterlist.xls
http://quickfacts.census.gov/qfd/index.html


o The top two states in terms of Section 2 cases filed are fully covered 
states: Texas (34 cases) and Mississippi (29 cases).

o A number of fully covered states rank high on this list, despite being 
having relatively small populations, suggesting that discrimination is 
much more common in those states. For instance, Louisiana had 
roughly the same number of cases filed as partially covered California 
(17 and 15, respectively), despite a population (4.5 million) less than 
one-eighth the size of California’s (37.3 million).

• Success Rates.

o The three states with the highest success rates for plaintiffs were fully 
covered: Mississippi (62.1% success rate); Louisiana (58.8% success 
rate); and Alabama (a 48% success rate).

o Shelby County notes that Illinois and partially covered New York had 
more successful Section 2 cases than some fully covered states, but 
ignores the fact that New York and Illinois are two of the largest 
states in the country (respective populations: 19.4 million; 12.4 
million).

o Even with those population disparities, New York had far fewer 
successful Section 2 cases (4 successful cases) than smaller, fully 
covered states such as Mississippi (18 cases, population 3 million), 
Alabama (12 cases; population 4.8 million), and Louisiana (10 cases; 
population 4.5 million).

In sum, the Michigan Study demonstrates that, overall, the jurisdictions with the 

worst records with respect to Section 2 cases are covered states.

b. Other Statistical Evidence. Congress received additional statistical 

evidence and reports that provided indicia of discrimination more prevalent in 

covered jurisdictions, including:

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“/RJacial appeals in elections were more prevalent in covered than in non- 

covered jurisdictions.” JA628 (citing October 18, 2005 Hearing, at 1003) 

(emphasis added). Notwithstanding the much smaller population of the covered 

jurisdictions, a majority of Section 2 cases with judicial findings of racial appeals 

originated in the covered jurisdictions. See October 18, 2005 Hearing, at 1003 

(Michigan Study). Indeed, Congress learned from other sources that such racial 

appeals—including candidates’ emphasizing their opponent’s race by 

disseminating campaign literature with their opponent’s picture, sometimes 

darkened—remain common in biracial elections in certain covered jurisdictions. 

See, e.g., May 17, 2006 Hearing, at 17 (A. Derfner); May 10, 2006 Hearing, at 22- 

23 (R. McDuff); May 9, 2006 Hearing, at 44-45 (C. Davidson); October 20, 2005 

Hearing, at 85 (A. Derfner). Racial appeals are a factor for determining liability 

under Section 2, see Gingles, 478 U.S. at 40, and thus are indicative of voting 

discrimination.

“/RJacially polarized voting is much more pronounced in covered than in 

non-covered jurisdictions.” JA628 (emphasis added). This is true in three different 

respects: the frequency, severity, and trendlines with respect to RPV. First, 

findings of RPV are much more frequent in covered jurisdictions. The Michigan 

Study identified a roughly equal number of Section 2 decisions with findings of 

racially polarized voting in the covered as the non-covered jurisdictions, which

70



meant that, adjusted for population, there were roughly three times as many cases 

with findings of racially polarized voting in the covered jurisdictions as there were 

in the non-covered jurisdictions. See also May 17, 2006 Hearing, at 13 (P. Karlan); 

March 8, 2006 Hearing, at 1754 (North Carolina Report).

Second, as the District Court observed, the “severity of racial bloc voting” 

was worse in covered jurisdictions. JA629. In covered jurisdictions, nearly 90% of 

the biracial elections analyzed by courts since 1982 involved white bloc voting of 

80% or more; by contrast, in the non-covered jurisdictions, only 40% of the 

biracial elections involved white bloc voting of 80% or higher. See May 16, 2006 

Hearing, at 48 (A. Earls, citing data).27

Third, Congress also found that the ‘“degree of racially polarized voting in 

the South is increasing, not decreasing.’” H.R. Rep. No. 109-478, at 34 (citation 

omitted). See also May 16, 2006 Hearing, at 102 (P. Karlan) and 131 (T. 

Arrington) (noting “substantial evidence” of growing RPV in covered jurisdictions, 

compared to non-covered); May 17, 2006 Hearing, at 132-33 (N. Persily) (same).

Lack o f Minority Candidate Success. “Congress received evidence in 2006

suggesting that minority candidates are less likely to succeed” in covered

jurisdictions. JA628. See also October 18, 2005 Hearing, at 1008 (noting that 49 of

27 The data were published in a separate report by the Michigan Voting Rights 
Initiative. See Ellen Katz, Not Like the South? Regional Variation and Political 
Participation Through the Lens o f Section 2, available at 
http://sitemaker.umich.edu/votingrights/files/notlikethesouth.pdf.

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85 electronically published Section 2 cases finding a lack of minority electoral 

success originated in the covered jurisdictions); H.R. Rep. No. 109-478, at 33-34.

c. Qualitative evidence. Testimony from numerous academics and 

practitioners documented persisting differences between covered and non-covered 

jurisdictions. See, e.g., May 9, 2006 Hearing, at 159 (T. Shaw); May 16, 2006 

Hearing, at 26, 28 (T. Arrington); id. at 55 (A. Earls); May 17, 2006 Hearing, at 38 

(D. Days); June 21, 2006 Hearing, at 98 (D. Canon). Similarly, state-by-state 

reports concerning current conditions in 11 covered jurisdictions28 29 demonstrated 

substantial ongoing discrimination, including literally hundreds of specific 

examples. See Nw. Austin, 573 F. Supp. 2d at 252-62, 284-301 (citing legislative 

record). Congress also received evidence concerning non-covered jurisdictions, 

including state-by-state reports," but these reports revealed no sustained efforts at 

voting discrimination in non-covered jurisdictions.

28 See March 8, 2006 Hearing, at 1308-1362 (Alaska); id. at 1363-1453 (Arizona); 
id. at 1456-1498 (Florida); id. at 1499-1591 (Georgia); id. at 1592-1708 
(Louisiana); id. at 1709-1727 (Mississippi); id. at 1728-1835 (North Carolina); id. 
at 1836-1927 (New York); id. 1928-1985 (South Carolina); id. at 1986-2029 
(South Dakota); id. at 2030-2092 (Virginia); July 13, 2006 Hearing, at 103-119 
(California); id. at 365-402 (Alabama); Perales, Voting Rights in Texas, Nw. Austin 
(No. 06-1364), Dkt. No. 100-12, Ex. 8, and July 13, 2006 Hearing, at 357 (Texas).
29 Congress also received reports about several non-covered jurisdictions, including 
Arkansas, Oklahoma, Tennessee, and Wisconsin. See May 4, 2006 Hearing, at 
132-176, 235-257; October 25, 2005 (History) Hearing, at 3145-3148. In stark 
contrast to the evidence regarding covered jurisdictions, the reports for the non- 
covered jurisdictions contained no evidence of widespread discrimination or repeat 
violations.

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C. The Bailout and Bail-In Provisions Support the Congruence and
Proportionality of Section 4(b)

The coverage provision is also tailored in crucial respects that confirm its 

constitutionality. The “bail-in” provision under Section 3(c) allows courts to 

“retain jurisdiction for such period as [they] may deem appropriate” and to order 

that no voting change take effect unless either precleared by the court or the 

Attorney General. 42 U.S.C. § 1973a(c). States and localities with discriminatory 

records including (but not limited to) Arkansas, New Mexico, and Buffalo County, 

South Dakota have at various times been subject to preclearance obligations 

pursuant to the bail-in provision. See Jeffers v. Clinton, 740 F. Supp. 585, 594, 600 

(E.D. Ark. 1990); Sanchez v. Anaya, No. 82-0067M (D.N.M. Dec. 17, 1984); 

Kirkie v. Buffalo Cnty., No. 03-cv-3011 (D.S.D.). Congress learned that bail-in 

resolves any concerns about underinclusiveness at the margins of the coverage 

provision. See May 16, 2006 Hearing, at 13 (P. Karlan); id. at 42 (A. Earls).

And, the “‘bailout’ provision”—which allows a far broader range of 

jurisdictions to terminate coverage than at the time that either Katzenbach or Rome 

was decided, see supra pg. 57—-“addresses potential statutory over-inclusiveness, 

allowing jurisdictions with clean records to terminate their section 5 preclearance 

obligation.” Nw. Austin, 573 F. Supp. 2d at 226. Shelby County’s contention that 

bailout is ineffective, Br. at 53, is not only inappropriate for a facial challenge to 

the statute as a whole, it is belied by the record. Bailout is inexpensive, and every

73



jurisdiction that has sought bailout since the 1982 reauthorization has been 

approved. See May 9, 2006 Hearing, at 161 (T. Shaw); March 8, 2006 Hearing, at 

2684 (Report by J. Hebert). As the Attorney General notes, DOJ Br. at 73-75, a 

number of other jurisdictions have successfully obtained bailout since 2006; no 

jurisdiction seeking bailout has been denied; and additional bailout applications are 

pending. The fact that a number of jurisdictions have not sought bailout may 

actually be due to the fact that many covered jurisdictions believe that the benefits 

of Section 5 coverage outweigh the low administrative costs of Section 5 

compliance. See JA616-17 (citing amicus brief by six covered states in support of 

Section 5’s constitutionality in Aw. Austin, 129 S. Ct. 2504).

The fact that Shelby County cannot bailout is due to the persistence of 

discrimination against Black voters in Shelby County. Specifically, the City of 

Calera, located in Shelby County, recently sought to implement a discriminatory 

redistricting plan, which resulted in the electoral defeat of Ernest Montgomery, the 

city council’s lone African-American member. DOJ Br. at 7-8; JA307-08, 6-8.

Only after DOJ interposed an objection was a new redistricting plan drawn, after 

which Councilmember Montgomery won the seat back. JA308, 9-10. This

history demonstrates the continuing need for Section 5, not any inadequacy in the 

bailout provision.

74



CONCLUSION

For the forgoing reasons, Defendant-Intervenors respectfully request that the 

Court affirm the decision below.

December 9, 2011

Respectfully submitted,

s/ Debo P. Adegbile_________
John Payton 
Director-Counsel 
Debo P. Adegbile 
Elise C. Boddie 
Ryan P. Hay good 
Dale E. Ho
Natasha M. Korgaonkar 
NAACP Legal Defense and 

Educational Fund, Inc.
99 Hudson Street, Suite 1600 
New York, NY 10013 
Tel. (212) 965-2200 
dadegbile@naacpldf.org

Samuel Spital
Squire, Sanders & Dempsey (US) L.L.P.
30 Rockefeller Plaza
New York, NY 10112
Tel. (212) 872-9800
samuel.spital@ssd.com

Counsel for Intervenors-Appellees 
Earl Cunningham, Harry Jones,
Albert Jones, Ernest Montgomery, 
Anthony Vines and William Walker

75

mailto:dadegbile@naacpldf.org
mailto:samuel.spital@ssd.com


s/ Laughlin McDonald 
Laughlin McDonald
American Civil Liberties Union Foundation 
230 Peachtree Street, NW, Suite 1440 
Atlanta, GA 30303 
Tel. (404) 523-2721 
lmcdonald@aclu.org

Arthur B. Spitzer 
American Civil Liberties Union 

of the Nation’s Capital 
1400 20th Street, N.W., Suite 119 
Washington, DC 20036 
Tel. (202) 457-0800 
artspitzer@aol.com

Counsel for Intervenors-Appellees 
Bobby Pierson, Willie Goldsmith, Sr.,
Mary Paxton-Lee, Kenneth Dukes, and 
the Alabama State Conference o f the 
National Association for the Advancement o f 
Colored People, Inc.

Victor L. Goode 
Assistant General Counsel 
NAACP
4805 Mt. Hope Drive 
Baltimore, MD 21215-3297 
Tel: (410) 580-5120

Counsel for Intervenor-Appellee 
Alabama State Conference o f the 
National Association for the Advancement of 
Colored People, Inc.

s/ Jon M. Greenbaum 
Jon M. Greenbaum 
Robert A. Kengle 
Marcia Johnson-Bianco

76

mailto:lmcdonald@aclu.org
mailto:artspitzer@aol.com


Mark A. Posner
Lawyers' Committee for Civil Rights 
1401 New York Avenue, NW, Suite 400 
Washington, DC 20005 
Tel. (202) 662-8325 
j greenbaum@lawyerscommittee. org

John M. Nonna 
Autumn C. Katz 
Daniel T. Stabile 
David G. Cooper 
DEWEY & LEBOEUF LLP 
1301 Avenue of the Americas 
New York, NY 10019 
Tel. (212) 259-8311 
jnonna@deweyleboeuf.com

Counsel for Intervenor-Appellee 
Bobby Lee Harris

77

mailto:jnonna@deweyleboeuf.com


CERTIFICATE OF COMPLIANCE

This brief complies with the type-volume limitation of Fed. R. App. P. 

32(a)(7)(B) because this brief contains 17,403 words, excluding the parts of the 

brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).

This brief also complies with the typeface requirements of Fed. R. App. P. 

32(a)(5)and the type style requirements of Fed. R. App. P. 32(a)(6) because this 

brief has been prepared in a proportionally spaced typeface using Microsoft Office 

Word 2003 in 14-point Times New Roman font.

December 9, 2011

s/ Debo P. Adegbile 
Debo P. Adegbile

78



CERTIFICATE OF SERVICE

I hereby certify that on December 9, 2011, I electronically filed the 

foregoing Corrected Brief o f Intervenors-Appellees Earl Cunningham, Harry 

Jones, Albert Jones, Ernest Montgomery, Anthony Vines, William Walker, Bobby 

Pierson, Willie Goldsmith, Sr., Mary Paxton-Lee, Kenneth Dukes, The Alabama 

State Conference o f the National Association for the Advancement Of Colored 

People, Inc., and Bobby Lee Harris with the Clerk of Court by using the CM/ECF 

system, which will serve a copy of the foregoing to the following counsel of record 

who are registered participants of the Court’s CM/ECF system. I certify that a copy 

of the foregoing was served by first class mail to all counsel who are not registered 

participants of the Court’s CM/ECF system, as indicated in the Notice of 

Electronic Filing.

BERT W. REIN 
THOMAS MCCARTHY 
WILLIAM SPENCER CONSOVOY 
BRENDAN JOHN MORRISEY 
Wiley Rein LLP 
1776 K Street, NW 
Washington, D.C. 20006

FRANK C. ELLIS 
Wallace, Ellis, Fowler &Head 
113 North Main Street 
Columbiana, AL 35051

THOMAS E. PEREZ 
RONALD C. MACHEN, JR. 
DIANA K. FLYNN 
LINDA F. THOME 
SARAH E. HARRINGTON 
Civil Rights Division 
U.S. Department of Justice 
Appellate Section 
P.O. Box 14403 
Ben Franklin Station 
Washington, D.C. 20044-4403 
(202) 514-4706

79



DEBORAH NICOLE ARCHER 
ADERSON B. FRANCOIS 
CHARLENE A. BARKER 
New York Law School 
185 West Broadway 
New York, NY 10013

JOHN C. NEIMAN, JR. 
ROBERT TAMBLING 
O f f i c e  o f  t h e  A t t o r n e y  

G e n e r a l  o f  A l a b a m a  

501 Washington Avenue 
Montgomery, AL 36130

ELIZABETH B. WYDRA 
DOUGLAS T. KENDALL 
DAVID H. GANS 
NEIL WEARE
Constitutional Accountability Center 
1200 18th Street, NW, Suite 1002 
Washington, D.C. 20036

THOMAS C. HORNE 
DAVID R. COLE 
MICHELE L. FORNEY 
JAMES E. BARTON II 
1275 W. Washington 
Phoenix, Arizona 85007-2997

STEPHEN J. LECHNER 
Mountain States Legal Foundation 
2596 South Lewis Way 
Lakewood, CO 80227-2705

SAMUEL S. OLENS 
132 Judicial Building 
40 Capitol Square SW 
Atlanta, GA 30334-1300

I further certify that I caused eight paper copies of the brief to be delivered 

by UPS next-day service to the Clerk of the Court on December 12, 2011.

s/ Debo P. Adegbile 
Debo P. Adegbile

80