Defense Fund Asks U.S. Supreme Court to Reverse Freedom Rider Convictions

    No. 12-96

In  T h e

Supreme Court of tfje Unttetr i§>tate£

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

Petitioner,
v.

E r ic  H . H o l d e r , J r . A t t o r n e y  G e n e r a l , et al.,
Respondents.

On Writ of Certiorari to the 
United States Court of Appeals 

for the District of Columbia Circuit

BRIEF OF AMICUS CURIAE THE STATE 
OF ALASKA IN SUPPORT OF PETITIONER 

SHELBY COUNTY, ALABAMA

Michael C. Geraghty 
Attorney General 

Margaret Paton Walsh 
Counsel o f  Record  

Joanne M. Grace 
Ruth Botstein 
The State of Alaska 
1031 W. 4th Avenue, Suite 200 
Anchorage, AK 99501 
(907) 269-6612
margaret.paton-walsh@alaska.gov
Counsel for Am icus 

The State o f  Alaska

W ilson-Epes Printing Co., Inc. -  (202)789-0096 -  Washington, D. C. 20002

mailto:margaret.paton-walsh@alaska.gov


TABLE OF CONTENTS

TABLE OF AUTHORITIES..................................  iv
INTEREST OF AMICUS CURIAE......................  1
INTRODUCTION........................................................  2
ARGUMENT.................................................................  4

I. The VRA’s Current Bailout Standards 
are Hopelessly Difficult for States to 
Meet....................................................................  4
A. Bailout Is Blocked by the DOJ’s Uni­

lateral Decision to Dispatch Federal 
Observers.....................................................  6

B. Bailout Is Blocked By a Single DOJ 
Objection to a Preclearance Sub­
mission, Which May Not be Evidence
of Discriminatory Effect or Intent......  9

C. The Bailout Requirements Hold
States Responsible for the Acts and 
Omissions of Sub-Jurisdictions They 
Cannot Control.......................................  12

D. In Practice, the DOJ has Complete
Control Over the Bailout Process.......  13

E. The DOJ’s Discretion to Consent
to Bailout Includes Application of 
Subjective Standards............................  22

II. The VRA’s Bail-In Provision Does Not 
Effectively Address the Underinclusive­
ness of the Coverage Formula...................  23

Page

(i)



11

III. Alaska’s Experience with the VBA 
Demonstrates Both the Overreach of § 5 
Coverage and the Near-Impossibility of 
Bailout for a State.......................................  26
A. Alaska’s § 5 Coverage is Not Now,

and Never Was, Justified as a Con­
gruent and Proportional Response to 
Voting Discrimination..........................  26

B. Bailout Under the 1982 Standards is
a Mirage for Alaska............................... 29

CONCLUSION.......................................................  34
APPENDIX A: Certification of the Bethel 

Census Area for Federal Observers (October
10, 2009)............................................................ la

APPENDIX B: Letter from James P. Turner,
Acting Assistant Attorney General, Civil 
Rights Division, DOJ, to Virginia Ragle, 
Alaska Assistant Attorney General 
(September 28, 1993)......................................  2a

APPENDIX C: Letter from Senator Ted 
Stevens to Governor Bill Sheffield (March 
9, 1983).............................................................. 7a

APPENDIX D: Letter from Paul F. Hancock, 
Assistant for Litigation, Voting Section,
Civil Rights Division, DOJ, to Norman 
Gorsuch, Alaska Attorney General (June
11, 1984)............................................................ 10a

TABLE OF CONTENTS—Continued
Page



Ill

Page
APPENDIX E: Letter from Lora Tredway, 

Attorney, Voting Section, Civil Rights 
Division, DOJ, to Virginia Ragle, Alaska 
Assistant Attorney General (May 23,1985).. 21a

APPENDIX F: Letter from Virginia Ragle, 
Alaska Assistant Attorney General, to 
Maggie Moran, Legislative Assistant to 
Senator Ted Stevens (March 14, 1985)........ 23a

TABLE OF CONTENTS—Continued



IV

TABLE OF AUTHORITIES 
REPORTED CASES Page

Chevron, U.S.A., Inc. v. Natural Resources 
Defense Council, Inc., 467 U.S. 837 (1984).. 21

City ofBoerne v. Flores, 521 U.S. 507 (1997).. 4, 28
Egan v. Hammond, 502 P.2d 856 (Alaska 

1972)...........................................................  27
In re 2011 Redistricting Cases, No. S-14721,

2012 WL 6721059 (Alaska Dec. 28, 2012)... 11
Jeffers v. Clinton, 740 F. Supp. 585 (D.N.M.

1990)...........................................................  25
Luper v. Municipality o f Anchorage, 268

F. Supp. 2d 1110 (D. Alaska 2003)....... 33
MCI Telecommunications Corp. v. American 

Telephone & Telegraph Co., 512 U.S. 218 
(1994).........................................................  21-22

Northwest Austin Municipal Utility District 
No. One v. Holder, 557 U.S. 193 (2009)....... 3, 5

Shelby County, Alabama v. Holder, 679 F.3d 
848 (D.C. Cir. 2012), cert, granted, 133 S.
Ct. 594 (2012).................... ............................ passim

South Carolina v. Katzenbach, 383 U.S. 301 
(1966)........................................................ 3, 4, 29, 31

Tobeluk v. Lind, 589 P.2d 873 (Alaska 1979)... 28
United States v. Louisiana, 265 F. Supp. 703 

(E.D. La. 1966), affd, 386 U.S. 270 (1967).. 7
United States v. City o f  Philadelphia, No. 

2:06cv4592, 2006 WL 3922115 (E.D. Pa.
Nov. 7, 2006) 8



V

PENDING CASES AND CASES DISMISSED 
WITHOUT OPINION

TABLE OF AUTHORITIES—Continued
Page

Alaska v. Holder, No. l:12-cv-01376-RLW 
(D.D.C.).............................................................  2

Alaska v. United States, No. 84-1362
(D.D.C.).............................................................. 30,32

Alta Irrigation District v. Holder, No. 1:11-
cv-00758-RJL-DAG-PLF (D.D.C.)................  16

Augusta County v. Gonzales, No. l:05-cv-
01885-TFH (D.D.C.)...................................   16

City o f Kings Mountain v. Holder, No. 1:11- 
cv-01153-PLF-DST-TFH (D.D.C.)................  16

City o f  Pinson v. Holder, No. l:12-cv-00255- 
CKK-KLH-RBW (D.D.C.)............................... 15

City o f Sandy Springs v. Holder, No. l:10-cv- 
01502-ESH-JRB-EGS (D.D.C.)..................... 17

City o f Winchester, Virginia v. Ashcroft, No.
l:00-cv-03071-ESH-RCL (D.D.C.)................  17

Culpeper County, Virginia v. Holder, No.
l:ll-cv-01477-JEB-JWR-RLW (D.D.C.).....  15

Frederick Couty, Virginia v. Reno, No. 1:99-
cv-00941 (D.D.C.)............................................. 17

Greene County, Virginia v. Ashcroft, No.
l:03-cv-01877-HHK (D.D.C.)........................  16

Hootch v. State Operated School System,
Civil No. 72-2450 (Super. Ct. Alaska 1973)... 28



VI

Jefferson County Drainage District No. Seven 
v. Holder, No. l:ll-cv-00461-DST-RWR- 
RJL (D.D.C.)....................................................  16

King George County, Virginia v. Holder, No.
l:ll-cv-02164-BAH-KLH-ESH (D.D.C.)......  15,19

Merced County v. Holder, No. l:12-cv-00354- 
TFH-DST-ABJ (D.D.C.).........................................15, 19

New Hampshire v. Holder, No. l:12-cv-01854- 
EGS-TBG-RMC (D.D.C.).................................17-18, 21

Nick v. Bethel, No. 3:07-cv-0098-TMB
(D. Alaska).......................................................  7, 8

Nix v. Holder, No. 12-81 (U.S. 2012 term).....  11
Northwest Austin Municipal Utility Disrict 

No. One v. Holder, No. l:06-cv-10384-PLF- 
EGS-DST (D.D.C.)..........................................  13-14

Prince William County v. Holder, No. 1:12- 
cv-00014-ESH-TBG-JEB (D.D.C.)...............  15

Pulaski County, Virginia v. Gonzales, No.
l:05-ev-1265-RBW (D.D.C.)...........................  16

Roanoke County, Virginia v. Reno, No. 1:00- 
cv-01949-RMU-JR (D.D.C.).................................. 17, 18

Rockingham County, Virginia v. Ashcroft,
No. l:02-cv-00391-ESH-EG (D.D.C.)........   16

Samuelsen v. Treadwell, No. 3:12-cv-0018- 
RRB-AK-JKS (D. Alaska)............................... 33

Sanchez v. Anaya, No. 82-0067M (D.N.M.)....  24
Shenandoah County, Virginia v. Reno, No. 

l:99-cv-00992-PLF (D.D.C.)..........................  17

TABLE OF AUTHORITIES—Continued
Page



Warren County, Virginia v. Ashcroft, No.
l:02-cv-01736-EGS (D.D.C.)..........................  16

UNITED STATES CONSTITUTION
U.S. Const, amend. XIV.................................... passim

U.S. Const, amend. X V ..................................... passim

CURRENT STATUTES
Voting Rights Act of 1965, Pub. L. No. 89- 

110, 79 Stat. 437 (codified as amended at 
42 U.S.C. §§ 1971,1973 to 1973bb-l (2006)):
42 U.S.C. § 1973a......................................... passim

42 U.S.C. § 1973a(a)...................................... 6
42 U.S.C. § 1973a(c)....................................1, 24, 25
42 U.S.C. § 1973b......................................... passim

42 U.S.C. § 1973b(a)(l).................................. 1
42 U.S.C. § 1973b(a)(l)(A).......................... 5, 12, 22
42 U.S.C. § 1973b(a)(l)(B).......................... 5, 12, 22
42 U.S.C. § 1973b(a)(l)(C).......................... 5, 12, 22
42 U.S.C. § 1973b(a)(l)(D)............5, 12, 18, 19, 22
42 U.S.C. § 1973b(a)(l)(E)......................5, 9, 12, 22
42 U.S.C. § 1973b(a)(l)(F).......................... 5, 12, 22
42 U.S.C. § 1973b(a)(l)(F)(ii)-(iii)................  23
42 U.S.C. § 1973b(a)(3).................................  21
42 U.S.C. § 1973b(a)(5).................................  5

V ll

TABLE OF AUTHORITIES—Continued
Page



V lll

TABLE OF AUTHORITIES—Continued
Page

42 U.S.C. § 1973b(b)................   1
42 U.S.C. § 1973b(f)(3)................................... 27
42 U.S.C. § 1973c............................................passim
42 U.S.C. § 1973fta)(2)................................... 6, 7

FORMER STATUTES
Voting Rights Act of 1965, Pub. L. No. 89- 

110, § 4(a), 79 Stat. 437 (amended 1970, 
1975,1982,2006)........................................  4

Voting Rights Amendments of 1975, Pub.
L. No. 94-73, tit. II, § 201, 89 Stat. 400 
(amended 1982, 2006)..................................... 29

REGULATIONS
28 C.F.R. § 51.52(a) (2011)............................  9
28 C.F.R. § 51.52(c) (2011)............................  9
28 C.F.R. § 51.64 (1987)................................. 19
28 C.F.R. § 55.5(a) (1976)..............................  27

ALASKA CONSTITUTION

Article V, § 1 (amended 1970)...........................  27

LEGISLATIVE HISTORY

H.R. Rep. No. 109-478 (2006)............................  13
S. Rep. No. 94-295 (1975)................................. 28
S. Rep. No. 417 reprinted in S. Rep. 97- 

417, 1982 U.S.C.C.A.N. 177 ................ 19-20, 21



TABLE OF AUTHORITIES—Continued

Hearings on H.R. 6400 Before Subcom­
mittee No. 5 o f the House Comm, on the 
Judiciary, U.S. Congress, 89th Cong. 12 
(1965).............................................................

OTHER AUTHORITIES
About Federal Observers and Election 

Monitoring, UNITED STATES DEPART­
MENT of Justice, Civil Rights Division,
http://www.justice.gov/crt/about/vot/exam 
ine/activ_exam.php.....................................

AML Municipal Members, ALASKA 
Municipal League, http://www.akml.org/ 
Members.html..............................................

Certification of the Bethel Census Area for 
Federal Observers (October 10, 2009)....

J. Gerald Hebert, Process o f Obtaining 
a Bailout, in Am . Votes! Guide 
To Modern Election L. & Voting 
(Benjamin E. Griffith ed. 2008).................

John Boucher and Kristen Trombley, 
Federal Agencies Prominent Despite 
Downsizing, A l a s k a  ECONOMIC TRENDS, 
Sept. 1996.....................................................

Letter from James P. Turner, Acting 
Assistant Attorney General, DOJ, to 
Virginia Ragle, Alaska Assistant 
Attorney General (September 28, 1993)..

http://www.justice.gov/crt/about/vot/exam
http://www.akml.org/


X

TABLE OF AUTHORITIES—Continued

Page
Letter from Lora Tredway, Attorney, Civil 

Rights Division, DOJ, to Virginia Ragle, 
Alaska Assistant Attorney General (May 
23,1985).......................................................  32

Letter from Paul F. Hancock, Assistant for 
Litigation, DOJ, to Norman Gorsuch,
Alaska Attorney General (June 11,
1984)..............................................................  30-31

Letter from Senator Ted Stevens to 
Governor Bill Sheffield (March 9, 1983).. 29-30

Letter from Virginia Ragle, Alaska 
Assistant Attorney General, to Maggie 
Moran, Legislative Assistant to Senator 
Ted Stevens (March 14, 1985)..................  32

Lisa Handley, A  Voting Rights Analysis o f  
the Alaska Amended Proclamation State 
Legislative Plan (May 25, 2012), avail­
able at http://www.akredistricting.org/ 
dojsubmission/May%2025,%202012%20 
Submission/Volume%2010/Folder%2004 
%20-%20Report%20of%20Dr.%20Lisa% 
20Handley/Dr.%20Handley’s%20Report.
Pdf...................................................................... 10

Michael Krauss, Alaska Native Languages:
Past, Present, and Future, Alaska NATIVE 
Language Center Research Papers 
NO. 4 (1980)..................................................  28

Section 4 o f the Voting Rights Act, UNITED 
States Department of Justice, Civil 
Rights Division, http://www.justice.gov/ 
crt/about/vot/misc/sec_4.php......................12, 13

http://www.akredistricting.org/
http://www.justice.gov/


XI

Page
Travis Crum, The Voting Rights Act’s Secret 

Weapon: Pocket Trigger Litigation and 
Dynamic Preclearance, 119 YALE L.J.
1992 (2010)...................................................... 24

TABLE OF AUTHORITIES—Continued



INTEREST OF AMICUS CURIAE

The State of Alaska is a covered jurisdiction under 
the formula described in § 4 of the Voting Rights Act 
(VRA). 42 U.S.C. § 1973b(b). As a result, § 5 of the 
VRA prohibits the State from implementing any 
changes to its election practices and procedures with­
out prior permission of the Department of Justice 
(DOJ) or the federal district court in Washington, 
D.C. § 1973c. Alaska is also the only state ever to 
bail out of § 5 coverage. Indeed, it has bailed out 
twice—after it was captured by the original coverage 
formula of the 1965 VRA, and again after it was 
recaptured by the Act’s 1970 renewal. But since 
it was captured for the third time by the 1975 
amendments—because it failed to provide written 
election materials in languages that almost no one 
could read—it has been ineligible to bail out. Thus, 
although Alaska has no history of voting discrimina­
tion, it nevertheless bears § 5’s scarlet letter.

In its opinion below, the D.C. Circuit upheld 
the constitutionality of § 4’s coverage formula by 
relying on the twin saviors of bailout and bail-in, 
§§ 1973b(a)(l), 1973a(c). Shelby Cnty., Alabama v. 
Holder, 679 F.3d 848 (D.C. Cir. 2012), cert, granted, 
133 S. Ct. 594 (2012). The court believed that al­
though the original conditions that justified § 5’s 
intrusions have changed, Congress’ “liberalizfation]” 
of bailout in 1982 preserves § 5’s constitutionality 
today, stating that “ [t] he importance of this signifi­
cantly liberalized bailout mechanism cannot be over­
stated.” Id. at 882. But even with no history of voting 
discrimination, Alaska cannot bail out under the 
supposedly liberalized standard enacted in 1982. The 
D.C. Circuit dismissed such concerns, advising that 
“ [i]f something about the bailout criteria themselves



or how the Attorney General is applying them 
is preventing jurisdictions with clean records from 
escaping section 5 preclearance, those criteria can 
be challenged in a separate action brought by any 
adversely affected jurisdiction.” Shelby Cnty., 679 
F.3d at 882. Alaska has recently brought such an 
action, challenging the constitutionality of §§ 4 and 5. 
Alaska v. Holder, No. l:12-cv-01376-RLW (D.D.C.).

Alaska has repeatedly suffered the “extraordinary 
federalism costs” of §§ 4 and 5. Shelby Cnty., 679 F.3d 
at 884. These provisions nearly derailed Alaska’s 
2012 elections, when the State was sued to stop 
election preparations under an interim redistricting 
plan ordered by the Alaska Supreme Court and 
submitted to the DOJ for preclearance. Although 
DOJ’s eventual preclearance mooted the lawsuit, the 
damage to the state’s sovereignty was done. Because 
Alaska has a strong interest in ending the extraordi­
nary and unwarranted infringement of its sover­
eignty imposed by §§ 4 and 5 of the VBA, it submits 
this amicus brief in support of the petitioner, Shelby 
County, Alabama.

INTRODUCTION

Alaska exists at the margin of § 5 coverage. The 
State twice bailed out under the original bailout pro­
vision, but now stands unable to bail out because the 
amended standards are nearly impossible for states 
to meet. The D.C. Circuit’s heavy reliance on the 
bailout and bail-in provisions to correct the imperfec­
tions of the basic formula reflects a serious misun­
derstanding about the operation of those provisions. 
Upholding the 2006 reauthorization of the VBA’s 
coverage formula, the D.C. Circuit was satisfied that 
the covered jurisdictions deserved § 5’s extraordinary

2



burden because (1) jurisdictions covered by § 4 would 
bail out if  they had “a clean voting record as defined 
in section 4(a),” and (2) jurisdictions not covered 
by § 4 “but which nonetheless have serious, recent 
records of voting discrimination, may be ‘bailed in’— 
i.e., subjected to section 5 preclearance—pursuant to 
section 3(c).” Shelby Cnty., 679 F.3d at 873-74.

While the D.C. Circuit noted that Congress had 
before it “little or no evidence of current problems” 
in Alaska, id. at 881, it nevertheless upheld the 
statute’s current reach, presumably relying on bail­
out to cure the overbreadth. But although Alaska’s 
history does not justify § 5 coverage, bailout cannot 
save it; the State exemplifies what Justice Thomas 
observed in Northwest Austin Municipal Utility 
District No. One u. Holder—that bailout is little more 
than a “mirage.” 557 U.S. 193, 215 (2009) (Thomas, 
J., concurring in part and dissenting in part). Nor 
does bail-in combat the fundamental inequality of 
sovereigns created by the coverage formula, because 
it does not impose upon guilty jurisdictions the same 
burdens endured by those covered under § 5.

The D.C. Circuit also relied on the analysis in 
South Carolina v. Katzenbach, 383 U.S. 301, 332 
(1966) to justify the formula’s inaccuracies, explain­
ing that while “the coverage formula’s fit is not per­
fect [,] . . . the fit was hardly perfect in 1965.” Shelby 
Cnty., 679 F.3d at 880. But in 1965— and 1966 when 
this Court upheld the coverage formula—the Act 
imposed only a five-year sentence on the covered 
jurisdictions and bailout functioned as an effective 
error-correction device. As the Court noted in 
Katzenbach, “an area need not disprove each isolated 
instance of voting discrimination in order to obtain 
relief in the termination proceedings.” Katzenbach,

3



4
383 U.S. at 332. In contrast, the 2006 reauthoriza­
tion imposed a twenty-five-year sentence with an 
arbitrary and punitive bailout provision, in which a 
single “isolated instance” that may not even reflect 
voting discrimination bars escape for an additional 
decade.

Enough is enough. The Court should hold that § 5, 
applied to what is now a haphazard assortment of 
jurisdictions, is neither congruent nor proportional 
to the problems of voting discrimination in the 21st 
century. See City o f Boerne v. Flores, 521 U.S. 507, 
520 (1997).

ARGUMENT

I. The VRA’s Current Bailout Standards are 
Hopelessly Difficult for States to Meet.

Congress originally designed the VRA’s bailout 
provision to correct errors in the reach of the cover­
age formula. In 1965, bailout required only a showing 
that the formula had wrongly captured the jurisdic­
tion, meaning that it had not used a test or device 
with the purpose or effect of discriminating against 
voters on the basis of race or color. Voting Rights Act 
of 1965, Pub. L. No. 89-110, § 4(a), 79 Stat. 437, 438 
(amended 1970, 1975, 1982, 2006). In contrast, the 
current standard, introduced in the 1982 VRA reau­
thorization, takes a more remedial approach, offering 
bailout to jurisdictions that can demonstrate the 
requisite improvement in their records on voting dis­
crimination. In theory this new standard offers an 
incentive to eliminate discrimination and enhance 
minority access to the electoral process. Indeed, the 
D.C. Circuit noted that “ [s]ignificantly for the issue 
before us, the 1982 version of the Voting Rights Act



made bailout substantially more permissive.” Shelby 
Cnty., 679 F.3d at 856. But the current bailout 
standard is only "more permissive” in the sense that 
it theoretically allows jurisdictions to earn release. In 
practice, it set the bar unreasonably high—at least 
for states—and it thus severed any meaningful con­
nection between the conduct of the jurisdiction and 
the severity of the penalty, § 5’s “strong medicine.” 
Id. at 873.

The new standard requires a jurisdiction both to 
achieve perfection and to cross its fingers that factors 
beyond its control will not frustrate bailout. To qual­
ify, a jurisdiction now must show that during the 
previous ten years: (A) it has not used a test or device 
with the purpose or effect of denying or curtailing the 
right to vote because of race, color, or minority lan­
guage status; (B) no federal court has found that the 
right to vote has been denied or curtailed anywhere 
in the jurisdiction because of race, color, or minority 
language status; (C) federal examiners have not been 
certified to the jurisdiction; (D) the jurisdiction has 
complied with § 5, including submitting all voting 
changes for preclearance; and (E) the DOJ has not 
objected to any preclearance submission. 42 U.S.C. 
§§ 1973b(a)(l)(A)-(E). In addition, a covered jurisdic­
tion must meet “subjective criteria,” Nw. Austin, 
557 U.S. at 215 (Thomas, J., concurring in part and 
dissenting in part), requiring a showing that it has 
“eliminated voting procedures and methods of elec­
tion which inhibit or dilute equal access to the elec­
toral process” and has “engaged in constructive efforts” 
to expand voting opportunities. § 1973b(a)(l)(F). Even 
after meeting this standard, the jurisdiction must 
maintain a record free of voting discrimination for an 
additional ten years under a “clawback” provision to 
secure permanent bailed-out status. § 1973b(a)(5).

5



6

Two aspects of this test render it ineffective to cure 
the coverage formula’s overreach. First, on its face 
the statute requires a perfect record over twenty 
years—with not a single court finding of voting dis­
crimination; not a single federal examiner; every 
voting change submitted for preclearance; and not a 
single DOJ objection to a preclearance submission. 
The severity of § 5’s treatment is strikingly dispro­
portionate to the slight imperfection that will frus­
trate bailout. Second, even a state’s best possible 
efforts to achieve this perfection may not succeed 
because some of the criteria rely on unreviewable 
decisions of the DOJ and attribute to the State the 
behavior of others it cannot control.

A. Bailout Is Blocked by the DOJ’s 
Unilateral Decision to Dispatch Federal 
Observers.

The DOJ’s decision to dispatch federal observers is 
an example of an unreviewable decision that will 
prevent bailout. Federal observers may be sent to 
monitor elections either by order of a federal court, 
42 U .S .C . § 1973a(a), or upon certification by the 
Attorney General, § 1973f(a)(2). According to the 
DOJ, courts have ordered federal observers only 
twelve times in the VRA’s history. See About Federal 
Observers and Election Monitoring, UNITED STATES 
D e p a r t m e n t  o f  J u s t i c e , C iv il  R ig h t s  D iv is io n , 
http ://www .j ustice.gov/crt/about/vot/examine/ activ_ex 
am.php (last viewed December 27, 2012). By contrast, 
the Attorney General has certified 152 jurisdictions 
for observers. Id. To justify dispatching federal 
observers to a § 5 jurisdiction, the Attorney General 
must certify that he “has received written meritori­
ous complaints from residents, elected officials, or 
civic participation organizations that efforts to deny



or abridge the right to vote under the color of law on 
account of race or color, or in contravention of the 
[language assistance] guarantees . . . are likely to 
occur”; or that in his judgment, “the assignment of 
observers is otherwise necessary to enforce the guar­
antees of the 14th or 15th amendment.” 42 U.S.C. 
§ 1973fla)(2).

This standard for certification of observers means 
little, because the Attorney General’s decision is un- 
reviewable and therefore his discretion is unchecked. 
See United States v. Louisiana, 265 F. Supp. 703, 
715 (E.D. La. 1966), affd, 386 U.S. 270 (1967) (“ [T]he 
appointment of observers is a matter o f executive 
discretion and is not subject to judicial review.”). 
With no oversight or review to guide the exercise of 
the Attorney General’s judgment, the assignment of 
federal observers may not accurately measure a 
jurisdiction’s voting record. In fact, Alaska’s example 
demonstrates that a covered jurisdiction hoping to 
maintain a perfect record for bailout may have that 
record blemished without explanation.

The Attorney General certified Alaska’s Bethel 
Census Area for federal observers in October 2009. 
He justified his decision by reciting the statutory 
standard, explaining only that “in my judgment the 
appointment of federal observers is necessary to 
enforce the guarantees of the Fourteenth and Fif­
teenth Amendments of the Constitution of the United 
States.” See Certification of the Bethel Census Area 
for Federal Observers (October 1, 2009) (attached as 
Appendix A). This certification was apparently in 
response to allegations made by opposing counsel in 
litigation then pending against the State and Bethel. 
See Nick u. Bethel, No. 3:07-cv-0098-TMB (D. Alaska) 
(challenging the State’s voter language assistance

7



program). The Attorney General made his certifi­
cation without informing the State that he had 
received a complaint or allowing the State to respond. 
Thus, it is difficult to understand how he could have 
determined that the complaint was “meritorious” or 
that observers were “necessary to enforce the guar­
antees of the Fourteenth or Fifteenth amendment.”

Even more troubling, the Nick plaintiffs had tried 
and failed to obtain a court order for federal observ­
ers just a year before. Order re: Plaintiffs’ Motion for 
a Preliminary Injunction Against the State Defend­
ants at 11, Nick v. Bethel, No. 3:07-cv-0098-TMB (D. 
Alaska July 30, 2008), ECF No. 327. Unlike the DOJ, 
courts place an “onerous burden” on plaintiffs seeking 
appointment of federal observers. United States 
v. City o f  Philadelphia, No. 2:06-cv-4592, 2006 WL 
3922115, at *6 (E.D. Pa. Nov. 7, 2006) (holding that 
plaintiff had “not met its onerous burden to demon­
strate that it is entitled to extraordinary relief in the 
form of federal observers”). Because the DOJ could 
easily give the Nick plaintiffs what the federal court 
would not, plaintiffs complained to the DOJ instead 
of renewing their request with the court, and federal 
observers were sent to Bethel for local elections 
in 2009 without any opportunity for the State to 
respond or appeal. This restarted Alaska’s bailout 
clock. In 2010, the Attorney General notified the 
State that federal observers would again be dis­
patched to Bethel, again at the request of opposing 
counsel in the Nick litigation and before the State 
knew of any complaint. The DOJ has never given the 
State any feedback from the observers or notified it 
that any observed practices were improper.

8



Because the process by which the DOJ decides to 
dispatch observers is secret and unreviewable, their 
presence is a poor gauge of whether § 5 oversight is 
justified. As Alaska’s experience shows, the presence 
of election observers demonstrates only that someone 
has contacted the DOJ and made allegations of 
improper election practices. Because bailout can be 
so easily and arbitrarily blocked, it cannot save the 
coverage formula.

B. Bailout Is Blocked By a Single DOJ 
Objection to a Preclearance Submis­
sion, Which May Not be Evidence of 
Discriminatory Effect or Intent.

To achieve the perfect record needed for bailout, 
a jurisdiction also must have received no DOJ 
objections to any preclearance submission by the 
jurisdiction or “any governmental unit within its 
territory” for ten years prior to the bailout request. 
42 U.S.C. § 1973b(a)(l)(E). Because a DOJ objection 
does not demonstrate actual discrimination sufficient 
to justify continued § 5 coverage, this requirement 
also keeps bailout from functioning as a meaningful 
cure for the overreach of the coverage formula.

A DOJ objection to preclearance is not a finding 
of discriminatory effect or intent. The DOJ must 
object to a proposed change whenever “the Attorney 
General is unable to determine that the change is 
free of discriminatory purpose and effect,” 28 C.F.R. 
§ 51.52(c) (2011), and the burden of proving otherwise 
lies with the submitting jurisdiction, § 1973c; 
28 C.F.R. § 51.52(a) (2011). The D.C. Circuit recog­
nized that a DOJ objection did not necessarily 
signal intentional voting discrimination, and that “to

9



10
sustain [the 2006 reauthorization of] section 5, the 
record [before Congress] must contain ‘evidence of a 
pattern of constitutional violations.”’ Shelby Cnty., 
679 F.3d at 866. But the court failed to recognize the 
impact of this insight on the effectiveness of the 
bailout as a savings clause. Because a DOJ objection 
is at best only circumstantial evidence even of 
discriminatory effect, much less intent, a rule that 
bars a jurisdiction from bailout for another ten years 
due to a single objection cannot rationalize the 
coverage formula.

Nor is it apparent that the DOJ applies a uniform, 
predictable standard to preclearance submissions. 
The only objection that the DOJ has ever made to a 
preclearance submission by Alaska was to a 1993 
redistricting plan, on the ground that it reduced the 
Alaska Native voting age population in a house dis­
trict from 55.7 percent to 50.6 percent. See Letter 
from James P. Turner, Acting Assistant Attorney 
General, Civil Rights Division, DOJ, to Virginia 
Ragle, Alaska Assistant Attorney General (September 
28, 1993) (attached as Appendix B). But a jurisdiction 
that is covered by § 5 only because of the minority 
language assistance formula should be not forced to 
engage in race-conscious redistricting to comply with 
the VRA. Moreover, in later rounds of redistricting, 
the DOJ has precleared plans with effective Alaska 
Native districts with less than 50 percent Native 
voting age population.1 Without clear guidance as to

1 Lisa Handley, A  Voting Rights Analysis of the Alaska 
Amended Proclamation State Legislative Plan 8 (May 25, 2012), 
available at http://www.akredistricting.org/dojsubmission/May% 
2025,%202012%20SubmissionA'rolume%2010/Folder%2004%20-% 
20Report%20of%20Dr.%20Lisa%20Handley/Dr.%20Handley’s%20 
Report.pdf.

http://www.akredistricting.org/dojsubmission/May%25


how the DOJ will apply the retrogression standard, 
jurisdictions attempting to redistrict are flying blind. 
Cf. In re 2011 Redistricting Cases, No. S-14721, 
2012 WL 6721059, at *17 n.44 (Alaska Dec. 28, 2012) 
(Matthews, J. dissenting) (“Underlying this uncer­
tainty [whether redistricting plan would be pre­
cleared] is the fact that it is difficult to determine 
just what is forbidden by section 5 of the Voting 
Rights Act.”). And the failure of jurisdictions to intuit 
what might be acceptable to the DOJ is not a useful 
signal of discriminatory intent.

Similarly, the recent preclearance of a voting 
change in the City of Kinston, North Carolina, 
described in the Brief for Respondents Holder et 
al. in Opposition at 4-12, Nix v. Holder, No. 12-81 
(Sept. 24, 2012) also demonstrates that DOJ objec­
tions often reflect only a failure of proof on the part 
of the jurisdiction. In the Kinston example, the 
DOJ unilaterally reversed course and precleared a 
proposal to which it had objected two years before, 
purportedly based on additional information it 
received from another source. Whatever its reasons 
for doing this, the DOJ’s change of heart demon­
strates that its earlier objection did not actually 
indicate that the city would have instituted a 
discriminatory change absent § 5. Nevertheless that 
objection alone would have barred Kinston from 
bailing out for ten years.

Because the bailout provision is based on such 
unreliable indicators of discrimination, it cannot 
ensure the congruence and proportionality of the 
coverage formula.

11



12
C. The Bailout Requirements Hold States 

Responsible for the Acts and Omissions 
of Sub-Jurisdictions They Cannot 
Control.

The impossibility of the bailout standard is aggra­
vated for states and other larger jurisdictions because 
it attributes to them the conduct of political subdivi­
sions and governmental units within their territories. 
42 U.S.C. §§ 1973b(a)(l)(A)-(F). The larger the juris­
diction seeking bailout, the more devastating this 
requirement is. In Alaska, for example, the munici­
pal league alone has approximately 160 members.2 
The State’s eligibility for bailout depends on each 
subdivision maintaining a perfect record for ten 
years; none, facing litigation over a voting change, 
can decide to settle without jeopardizing the State’s 
bailout prospects. § 1973b(a)(l)(B). And yet the 
State has no control over the actions of these 
subdivisions—either over their election practices or 
their litigation decisions. Moreover, the subjective 
criteria in § 1973b(a)(l)(F) demand that a jurisdiction 
seeking bailout compile an extensive documentary 
record over a ten-year period, for itself and “all 
governmental units within its territory.” To imagine 
that a state could organize and maintain that kind of 
recordkeeping for all sub-jurisdictions within its 
territory for ten years is little more than a fantasy. 
Indeed, of the thirty-eight jurisdictions that have 
bailed out under the 1982 standard, none is larger 
than a County.3

2 The list of Alaska Municipal League members is available at 
AML Municipal Members, ALASKA MUNICIPAL LEAGUE, http:// 
www.akml.org/members.html (last visited Dec. 30, 2012).

3 The list of bailouts is available at Section 4 of the Voting 
Rights Act, United States Department of Justice, Civil

http://www.akml.org/members.html


D. In Practice, the DOJ has Complete 
Control Over the Bailout Process.

Given these onerous bailout standards, it is unsur­
prising that few jurisdictions have been able to take 
advantage of the bailout opportunity. And a close 
look at those that have raises further questions. The 
D.C. Circuit believed that § 5 was constitutional in 
large part because the bailout mechanism operated to 
ensure that the statute’s reach was congruent and 
proportional. This view assumed that bailout was a 
workable mechanism to allow covered jurisdictions 
with clean records to escape the reach of § 5, as it 
placed “covered status . . . within the control of the 
jurisdiction.” Shelby Cnty., 679 F.3d at 882 (citing 
H.R. Rep. No. 109-478, at 25 (2006)). Instead, the 
process is so permeated by the DOJ’s exercise of 
unfettered discretion that it neither functions con­
sistently as an escape hatch for worthy jurisdictions 
nor prevents the bailout of jurisdictions that are not 
legally entitled to it.

In practice, bailout cannot be achieved without 
the DOJ’s consent. Since the effective date of the 
1982 bailout revisions, thirty-eight jurisdictions have 
bailed out. See Bailout List, supra note 3. All of these 
bailouts were accomplished by consent decree, and 
in none of them was the bailout criteria actually 
litigated. Instead, in all but one, the parties filed a 
proposed consent decree very shortly after the initia­
tion of the litigation. (In the sole exception, North­
west Austin, the consent decree was entered shortly 
after this Court’s remand. Consent Judgment and 
Decree, Northwest Austin Municipal Utility District

13

Rights Division, http://www.justice.gov/crt/about/vot/misc/sec_4. 
php (last visited December 23, 2012) [hereinafter Bailout List],

http://www.justice.gov/crt/about/vot/misc/sec_4


No. One v. Holder, No. l:06-cv-10384-PLF-EGS-DST 
(D.D.C. Nov. 3, 2009), ECF No. 171. On remand, as in 
the other thirty-seven bailouts, the meaning, scope, 
and interpretation of the bailout criteria were never 
litigated.) Accordingly, these actions have generated 
neither judicial interpretations of the bailout criteria 
nor any published judicial opinions addressing their 
meaning or application. Nor has the DOJ promul­
gated any regulations elaborating on the bailout 
standards.

Thus, in practice, jurisdictions that obtain the 
DOJ’s consent can bail out; those who do not are 
likely to be barred, even if their claims might have 
merit. Indeed, a bailout guide written by J. Gerald 
Hebert—an expert bailout attorney formerly with the 
DOJ’s Voting Rights Section who has represented 
thirty of the thirty-eight bailed-out jurisdictions in 
their bailout actions—advises that jurisdictions 
interested in bailout should obtain the DOJ’s blessing 
before filing suit because it would be expensive and 
likely impossible to obtain bailout without it:

[T]he best course of action is to first seek the 
Attorney General’s consent to bailout before peti­
tioning the court. If a bailout lawsuit is filed 
before consulting with DOJ, and DOJ raises 
objections, the two choices available at that point 
for the jurisdiction are not good: either take on 
DOJ in contested litigation (costly and what is 
perhaps a losing cause), or withdraw the suit 
while the jurisdiction attempts to work out its 
differences with DOJ.

J. Gerald Hebert, Process o f Obtaining a Bailout, 
§ 16.Ill, in Am . Votes! Guide to Modern Election 
L. & VOTING (Benjamin E. Griffith ed. 2008). Thus, 
the DOJ, not the courts, effectively controls bailout.

14



The practical result of the DOJ’s discretion is 
remarkable: its power stretches so far that it com­
monly agrees to bailouts for jurisdictions that are not 
legally entitled to receive them. In eighteen of the 
thirty-eight bailouts that have been granted under 
the post-1982 bailout standards, the consent decrees 
expressly indicate that the jurisdictions did not 
actually meet the statutory standards for bailout 
because they did not have perfect preclearance 
records for ten years preceding the bailout applic­
ation. See Consent Judgment and Decree at 9, Mer­
ced Cnty. v. Holder, No. l:12-cv-00354-TFH-DST-ABJ 
(D.D.C. Aug. 31, 2012), ECF No. 11 (noting that 
“several potential voting changes had not previously 
been submitted to the Attorney General over the 
preceding ten years”); Consent Judgment and Decree 
at 15, City o f Pinson v. Holder, No. l:12-cv-00255- 
CKK-KLH-RBW (D.D.C. April 20, 2012), ECF No. 11 
(noting that city “failed to submit three 2008 unpop­
ulated annexations to the Attorney General for 
review under Section 5 prior to implementation”); 
Consent Judgment and Decree at 12, Prince William 
Cnty. v. Holder, No. l:12-cv-00014-ESH-TBG-JEB 
(D.D.C. April 10, 2012), ECF No. 9 (describing six 
changes enforced without preclearance, including 
salary increases, a special election, and the use of 
paper ballots); Consent Judgment and Decree at 9, 
King George Cnty., Virginia v. Holder, No. l:l l-cv - 
02164-BAH-KLH-ESH (D.D.C. April 5, 2012), ECF 
No. 10 (describing un-precleared changes involving 
an appointment to fill a vacancy and a change of 
boundary lines between counties); Consent Judgment 
and Decree at 8, Culpeper Cnty., Virginia v. Holder, 
No. 1:1 l-cv-01477-JEB-JWR-RLW (D.D.C. Oct. 3, 
2011), ECF No. 5 (describing county’s failure to 
submit for preclearance for a special election, an

15



appointment to fill a vacancy, and tax referenda); 
Consent Judgment and Decree at 10, City o f Kings 
Mountain v. Holder, No. l:ll-cv-01153-PLF-DST- 
TFH (D.D.C. Oct. 22, 2011), ECF No. 7 (noting that 
city failed to submit for preclearance two annexa­
tions); Consent Judgment and Decree at 8, Alta Irri­
gation Dist. v. Holder, No. l:ll-cv-00758-RJL-DAG- 
PLF (D.D.C. July 15, 2011), ECF No. 9 (noting that 
three proceedings were carried out without preclear­
ance); Consent Judgment and Decree at 12, Jefferson 
Cnty. Drainage Dist. No. Seven v. Holder, No. 1:11- 
cv-00461-DST-RWR-RJL (D.D.C. June 6, 2011), ECF 
No. 7 (noting existence of two un-precleared decisions 
to cancel elections); Consent Judgment and Decree 
at 5, Augusta Cnty. v. Gonzales, No. l:05-cv-01885- 
TFH (D.D.C. Nov. 30, 2005), ECF No. 7 (noting that 
county seeking bailout had enforced three voting 
changes prior to preclearance); Consent Judgment 
and Decree at 6, Pulaski Cnty., Virginia v. Gonzales, 
No. l:05-cv-1265-RBW (D.D.C. Sept. 27, 2005), ECF 
No. 8 (noting that county enforced fourteen voting 
changes without preclearance); Consent Judgment 
and Decree at 4, Greene Cnty., Virginia v. Ashcroft, 
No. l:03-cv-01877-HHK (D.D.C. Jan. 19, 2004), ECF 
No. 10 (noting enforcement of one voting change 
without preclearance); Consent Judgment and Decree 
at 6, Warren Cnty., Virginia v. Ashcroft, No. 1:02- 
cv-01736-EGS (D.D.C. Nov. 26, 2002), ECF No. 9 
(noting seven un-precleared changes, including a 
special election, several annexations and boundary 
changes, and alterations to the methods for selecting 
school board members); Consent Judgment and 
Decree at 6, Rockingham Cnty., Virginia v. Ashcroft, 
No. l:02-cv-00391-ESH-EGS (D.D.C. May 21, 2002), 
ECF No. 6 (noting enforcement of one voting change 
without preclearance); Consent Judgment and Decree

16



at 5, City o f Winchester, Virginia v. Ashcroft, No. 
l:00-cv-03071-ESH-RCL (D.D.C. May 31, 2000), ECF 
No. 14 (describing an un-precleared agreement to 
suspend all annexations); Consent Judgment and 
Decree at 8-9, Roanoke Cnty., Virginia v. Reno, No. 
1:OO-cv-01949-RMU-JR (D.D.C. Jan. 24, 2001), ECF 
No. 6 (describing numerous voting changes for which 
preclearance was not obtained, including six annex­
ations and boundary changes, and two amendments 
to the town charter regarding filling vacant seats for 
elected officials); Consent Judgment and Decree at 
5, Shenandoah Cnty., Virginia v. Reno, No. l:99-cv- 
00992-PLF (D.D.C. Oct. 15, 1999), ECF No. 12 (des­
cribing un-precleared changes including a special 
election and “various” annexations); cf. Consent 
Judgment and Decree at 5, Frederick Cnty., Virginia 
v. Reno, No. l:99-cv-00941 (D.D.C. Sept. 9, 1999), ECF 
No. 13 (noting the parties’ disagreement as to whether 
voting changes were enforced without preclearance). 
One recently-incorporated city lacked a ten-year 
history of any VRA compliance. Consent Judgment 
and Decree at 10, City o f Sandy Springs v. Holder, 
No. l:10-cv-01502-ESH-JRB-EGS (D.D.C. Oct. 26, 
2010), ECF No. 8. And the DOJ recently consented to 
a bailout action by ten covered towns and townships 
in New Hampshire despite its acknowledgement that 
“several potential voting changes had not previously 
been submitted to the Attorney General over the pre­
ceding ten years,” [Proposed] Consent Judgment and 
Decree at 14, New Hampshire v. Holder, No. l:12-cv- 
01854-EGS-TBG-RMC (D.D.C. Dec. 21, 2012), ECF 
No. 10-1, even in the face of opposition from New 
Hampshire voters concerned about the jurisdictions’ 
obvious ineligibility for preclearance, Memorandum 
of Points and Authorities in Support of Motion to

17



18
Intervene at 4-9, New Hampshire v. Holder, No. 1:12- 
cv-01854-EGS-TBG-RMC (D.D.C. Dec. 5, 2012), ECF 
No. 6.

Thus, even though a ten-year compliance record is 
a specific requirement of 42 U.S.C. § 1973b(a)(l)(D), 
the DOJ has nevertheless approved bailouts to 
numerous jurisdictions that did not meet this 
requirement. Indeed, had the law been followed, only 
twenty jurisdictions would have bailed out in the past 
three decades, demonstrating that the bailout provi­
sions are unreasonably strict. Under these circum­
stances, the bailout criteria are not functioning as 
the escape hatch for jurisdictions with clean records 
that the D.C. Circuit postulated and that Congress 
intended. Instead, bailout has often occurred in spite 
of the law, not because of it.

Nor can the Act be saved by the willingness of the 
DOJ and courts to overlook the rules. The consent 
decrees of the eighteen ineligible jurisdictions cited 
above suggest that the DOJ is attempting to make 
bailout more widely available by bending the rules. 
For example, the decrees identify un-precleared 
changes that were implemented in violation of § 5, 
but then note that the DOJ later—apparently in 
anticipation of the bailout litigation—approved the 
changes as non-discriminatory. E.g., Consent Judg­
ment and Decree at 9, Roanoke Cnty., Virginia u. 
Reno, No. l:00-cv-01949-RMU-JR (D.D.C. Jan. 24, 
2001), ECF No. 6 (explaining that numerous un- 
precleared changes, at least one eight years old, were 
submitted for preclearance “immediately before the 
present action was filed”). The decrees therefore craft 
a “post-clearance” exception to § 5’s preclearance 
requirement, under which some lucky jurisdictions 
can receive the DOJ’s blessing for bailout despite



preclearance violations. The consent decrees also 
often note that the jurisdictions’ § 5 failures were 
“inadvertent,” or cite the jurisdictions’ good-faith, but 
incorrect, belief that a change did not require pre­
clearance. See, e.g., Consent Judgment and Decree at 
9, Merced Cnty. v. Holder, No. l:12-cv-00354-TFH-DST- 
ABJ (D.D.C. Aug. 31, 2012), ECF No. 11 (explaining 
that failure to seek preclearance “was inadvertent or 
based on a good faith belief that the changes were not 
covered by Section 5”); Consent Judgment and Decree 
at 9, King George Cnty., Virginia v. Holder, No. 1:11- 
cv-02164-BAH-KLH-ESH (D.D.C. April 5, 2012), ECF 
No. 10 (explaining that county’s failure to comply 
with § 5 was “inadvertent”).

But the VRA does not permit relaxation of the 
bailout standards. It unambiguously provides that 
bailout is available only if  a requesting jurisdiction 
has completely “complied with section 1973c of this 
title, including compliance with the requirement that 
no change covered by section 1973c of this title has 
been enforced without preclearance under section 
1973c.” 42 U.S.C. § 1973b(a)(l)(D) (emphasis added). 
The DOJ’s regulations are in accord, lacking any 
exceptions to the full-compliance requirement. 28 
C.F.R. § 51.64 (1987) (“Among the requirements for 
bailout is compliance with Section 5, as described in 
Section 4(a), during the ten years preceding the filing 
of the bailout action and during its pendency.”).

Congress carefully crafted the bailout standards, 
intending that each of its provisions be strictly 
enforced: “Each and every requirement of the bailout 
is minimally necessary to measure a jurisdiction’s 
record of non-discrimination in voting.” S. Rep. No. 
97-417, at 59, reprinted in 1982 U.S.C.C.A.N. 177, 
238; see also id. at 222 (“This bailout was carefully

19



crafted to preserve the essential protections of section 
5. The provisions work as an integrated complement­
ary whole; removing any element would seriously un­
dermine the entire structure.”).

Congress could have allowed “post-clearance” to 
substitute for preclearance, but it did not. Instead, 
as the language of the statute conveys, Congress 
intended that absolute and complete compliance with 
the preclearance requirement was a prerequisite to 
any jurisdiction’s ability to bail out:

Timely submission of proposed changes before 
their implementation is the crucial threshold 
element of compliance with the law . . . .  Prospec­
tively, if bail-out were not made dependent on a 
record of timely submissions, there would be no 
incentive for jurisdictions to take seriously that 
requirement. This would further undermine the 
justice department’s ability to enforce the act in 
the future.

Id. at 225-26. In fact, Congress specifically rejected 
the idea that “post-clearance” could ever substitute 
for preclearance, explaining that “ [t]he rights of vot­
ers under the Voting Rights Act are violated not only 
when the voting change is first enforced without 
preclearance, but thereafter while it remains in force 
without having been precleared. Therefore, this 
requirement applies even if the voting change, when 
ultimately submitted, was not found objectionable.” 
Id. at 226.

Similarly, the statutory language does not support 
the idea that inadvertent failure to comply with 
the preclearance requirement is excusable. And 
again, Congress expressly rejected the argument that 
“bailout should not be denied for ‘inadvertence’” in 
failing to comply with the preclearance mandate,

20



explaining that “ [f] or many years the submission 
requirements of section 5 have been well understood” 
and that any jurisdiction unclear as to its obligations 
should seek advice from its “state attorney general’s 
office.” Id.

The DOJ recently asserted that it has authority to 
excuse preclearance failures. It argued in the New 
Hampshire township bailout action that 42 U.S.C. 
§ 1973b(a)(3) grants it discretion to waive the bailout 
requirements. See Attorney General’s Opposition to 
Motion to Intervene at 15-17, New Hampshire v. 
Holder, No. l:12-cv-01854-EGS-TBG-RMC (D.D.C. Dec. 
19, 2012), ECF No. 9. This argument is unsupported by 
the language of the Act. Subsection (a)(3) prohibits 
bailout to a jurisdiction that does not possess a clean 
ten-year record of compliance with other federal, 
state, and local laws regarding voting discrimination, 
but softens that requirement with an exception if the 
jurisdiction shows that its violations of other voting 
discrimination laws were “trivial, were promptly 
corrected, and were not repeated.” § 1973b(a)(3). 
On its face, this exception does not reach back to 
apply to subsection (a)(l)’s requirements for bailout. 
If anything, the existence of this exception in 
subsection (3) highlights the absence of any similar 
leniency in subsection (1).

In light of this unambiguous statutory language 
and legislative history, the DOJ may not simply 
decline to enforce portions of the VRA to help favored 
jurisdictions bail out. Rather, the DOJ must “give 
effect to the unambiguously expressed intent of 
Congress.” Chevron, U.S.A., Inc. v. Natural Res. Def. 
Council, Inc., 467 U.S. 837, 842-43 (1984). The DOJ 
is entitled to no deference when it makes “radical or 
fundamental change [s] ” to the VRA, MCI Telecomms.

21



22
Corp. v. Am. Tel. & Tel. Co., 512 U.S. 218, 229 (1994), 
by creating exceptions, loopholes, and leniency where 
Congress intended none to exist.

Rather than applying the law that Congress 
enacted, the DOJ bestows indulgences, applying 
its own, unwritten criteria in the form of negotiated 
consent decrees that forgive prior improprieties. 
Other jurisdictions, however, are not the recipients 
of this largesse. How the DOJ decides which jur­
isdictions can bail out despite their disqualifying 
records is unclear. Nor is it known how many 
jurisdictions, unaware of this option, have not sought 
bailout because their internal investigations revealed 
that the plain terms of the statute made them 
ineligible.

The Court should therefore reject any suggestion 
that the DOJ’s actions can save the constitutionality 
of § 5. Congress did not intend that non-qualifying 
jurisdictions could bail out, or that the DOJ would 
have discretion to decide which non-qualifying juris­
dictions to pardon. And even if it did, such a discre­
tionary bailout standard would not make § 5 into a 
congruent and proportional response to modern 
problems of voting discrimination. A “standard” this 
arbitrary and unknowable is by definition neither 
congruent nor proportional, whatever the problem 
might be.

E. The DOJ’s Discretion to Consent 
to Bailout Includes Application of 
Subjective Standards.

In addition to the objective criteria set forth in 42 
U.S.C. §§ 1973b(a)(l)(A)-(E), the bailout statute also 
contains subjective criteria that a jurisdiction must 
satisfy before it may bail out. § 1973b(a)(l)(F). A



state must show that it and all governmental bodies 
within its borders “have engaged in constructive 
efforts to eliminate intimidation and harassment” 
of voters, and “have engaged in other constructive 
efforts, such as expanded opportunity for convenient 
registration and voting for every person of voting 
age and the appointment of minority persons as 
election officials throughout the jurisdiction and at 
all stages of the election and registration process.” 
§§ 1973b(a)(l)(F)(ii)-(iii). No regulations elucidate the 
meaning and extent of the “constructive efforts” or 
the “expanded opportunity” that might qualify.

Especially in an area of law where decisions are 
made by consent decree, these subjective criteria 
increase the potential for inequities between jurisdic­
tions that the DOJ favors and those it does not. As 
with the DOJ’s practice of waiving the “objective” 
statutory criteria for certain jurisdictions, the sub­
jective criteria allow the DOJ to exercise expansive 
discretion, determining for unexplained reasons 
whether a particular jurisdiction has made sufficient 
efforts. This again suggests that bailout is not a fair 
escape hatch that any meritorious jurisdiction can 
access, but rather is a favor that the DOJ can give or 
withhold as it chooses.

II. The VRA’s Bail-In Provision Does Not 
Effectively Address the Underinclusive­
ness of the Coverage Formula.

Just as bailout does not tailor § 5’s coverage to only 
the jurisdictions that deserve its extraordinary bur­
dens, bail-in does little to cure the coverage formula’s 
underinclusiveness. The D.C. Circuit discusses bail-in 
as if it worked in tandem with the bailout provisions 
to correct the inaccuracies of the coverage formula,

23



but that is not so. Bail-in is extremely rare, suggest­
ing that non-covered jurisdictions are likely to escape 
it, regardless of how unfavorably their election 
practices compare to covered jurisdictions. And even 
when bail-in does happen, it is markedly different 
than § 5 coverage. It has a short lifespan, and it 
neither subjects a jurisdiction to § 5’s requirements 
nor imposes the difficult standards for bailing out.

In the forty-seven year history of the VRA, federal 
courts have applied the bail-in provision a mere 
eighteen times. And on sixteen of those occasions, 
the bailed-in jurisdiction signed a consent decree 
submitting to coverage, often to avoid the cost of 
extended litigation. Travis Crum, The Voting Rights 
Act’s Secret Weapon: Pocket Trigger Litigation and 
Dynamic Preclearance, 119 YALE L. J. 1992, 2015-16 
(2010).

More importantly, “bail-in” is a misnomer. The 
statute does not give courts authority to turn a non- 
covered jurisdiction into a covered one. Instead, the 
bail-in provision creates a third category of juris­
dictions, subject to shorter, gentler hybrid coverage. 
Section 4 coverage lasts indefinitely, but bail-in 
coverage lasts only “for such period as [the court] 
may deem appropriate.” § 1973a(c). Thus, a bailed-in 
jurisdiction need not meet the VRA’s standards for 
bailout in order to escape coverage; bail-in coverage 
expires naturally, when the court-imposed period ends. 
See, e.g., Consent Decree at 8, Sanchez v. Anaya, No. 
82-0067M (D.N.M. Dec. 17, 1984) (requiring preclear­
ance of redistricting plans for ten years).

And although the statute appears to require bailed- 
in jurisdictions to preclear changes to any “voting 
qualification or prerequisite to voting or standard, 
practice, or procedure with respect to voting,” in prac­

24



tice courts have limited the bail-in preclearance obli­
gation to changes related to the triggering litigation. 
See, e.g., Jeffers v. Clinton, 740 F. Supp. 585, 601 
(D.N.M. 1990) (holding that “any further statutes, 
ordinances, regulations, practices, or standards im­
posing or relating to a majority-vote requirement in 
general elections in this State must be subjected 
to the preclearance process”). Moreover, while § 4 
coverage demands that a jurisdiction go hat in hand 
either to the DOJ or to the district court in Washing­
ton, D.C., a bailed-in jurisdiction can seek preclear­
ance from the local district court, familiar with local 
conditions and realities. § 1973a(c).

Finally, bail-in fails to address the unequal sover­
eignty of the states under the VRA because it is 
triggered only by a finding that “violations of the 
fourteenth or fifteenth amendment justifying equita­
ble relief have occurred.” § 1973a(c) (emphasis added). 
While § 4 coverage is imposed by a formula that 
uses broad presumptions as a proxy for voting 
discrimination—encompassing jurisdictions like Alaska 
with no history of constitutional or statutory vio­
lations of voting rights—bail-in requires a court to 
find that the jurisdiction has actually violated the 
guarantees of the Fourteenth or Fifteenth Amend - 
ments. And indeed, in the only decision to discuss 
the bail-in provision in detail, the court held that 
multiple violations were required to trigger bail-in. 
Jeffers, 740 F. Supp. at 600. In so holding, that 
court noted that “it would be strange if  a single 
infringement could subject a State to such strong 
medicine.” Id. Yet a single misstep—even one pro­
viding no evidence of discriminatory effect, much less 
intent—subjects a State covered under § 4 to at least 
ten more years of § 5’s “strong medicine.”

25



Bail-in, therefore, is a temporary, narrowly-tailored 
remedy to rectify identified, repeated constitutional 
violations. It lacks the symmetry with § 5 coverage 
necessary to function as a meaningful equalizer of 
the coverage formula.

III. Alaska’s Experience with the VRA 
Demonstrates Both the Overreach of § 5 
Coverage and the Near-Impossibility of 
Bailout for a State.

Alaska’s experience demonstrates both the over­
inclusiveness of § 4’s coverage formula and the 
ineffectiveness of bailout to cure the unconstitution­
ality of the preclearance regime. Alaska has never 
been found in violation of either constitutional 
guarantees of voting rights or statutory prohibitions 
against voting discrimination, yet it has carried the 
stigma of § 5 coverage and labored under the yoke of 
federal oversight of its election laws and procedures 
for more than thirty-five years. And Alaska still has 
no realistic prospect of bailout.

A. Alaska’s § 5 Coverage is Not Now, and 
Never Was, Justified as a Congruent 
and Proportional Response to Voting 
Discrimination.

Alaska was swept up by the coverage formula 
despite having no history of voting discrimination, let 
alone the kind of history necessary to justify § 5’s 
extraordinary burden. The 1965 formula presumed 
that a jurisdiction had discriminatory election prac­
tices if it used a test or device as a prerequisite for 
voting and had low voter turnout. Hearings on H.R. 
6400 Before Subcommittee No. 5 o f the House Comm, 
on the Judiciary, U.S. Congress, 89th Cong. 12 (1965) 
(Testimony of Nicholas Katzenbach). Bailout was

26



intended to release from § 5 coverage jurisdictions 
such as Alaska: in 1966 and 1972 when the State 
sought bailout, the DOJ agreed that Alaska had not 
discriminated based on race or color.

Alaska was covered in 1965 and 1970 because 
its constitution required that a voter speak or read 
English, Alaska Constitution, article V, section 1 
(amended 1970), and because a third of its labor force 
was uniformed military personnel who generally did 
not vote in Alaska, pushing voter participation rates 
below the 50% threshold. See John Boucher and Kris­
ten Trombley, Federal Agencies Prominent Despite 
Downsizing, ALASKA ECONOMIC TRENDS, September 
1996, at 8; Egan v. Hammond, 502 P.2d 856, 862 
(Alaska 1972) (Boochever, J., dissenting). Because 
Alaska’s constitutional provision did not actually 
have the purpose or effect of denying the right to vote 
on account of race or color, the Attorney General 
consented to its bailout in 1966 and 1972. At that 
time, the bailout system worked.

But the 1975 amendments again ensnared Alaska. 
Although in 1970 Alaskans had repealed the Alaska 
Constitution’s requirement that voters read or speak 
English, Alaska was covered in 1975 because the 
formula was expanded to include jurisdictions that 
provided “registration and election materials . . . 
only in English,” on November 1, 1972, see 28 C.F.R. 
§ 55.5(a) (1976) (interpreting 42 U.S.C. § 1973b(f)(3)), 
and that had a sufficient population of a “single 
language minority.” § 1973b(f)(3).

This was an absurd basis for pulling Alaska back 
into § 5 coverage. The “single language minority 
group” that made up more than five percent of 
Alaska’s voting age citizens was not a single group at

27



all; instead, approximately twenty distinct Alaska 
Native languages were spoken by different Alaska 
Native groups spread across Alaska’s vast territory. 
See Michael Krauss, Alaska Native Languages: Past, 
Present, and Future, ALASKA NATIVE LANGUAGE C t r . 
R e s . Pa p e r s  No. 4 at 33-52 (1980). Until recently, 
these languages had no widely-read orthographies, 
and few, if  any, Alaska Natives were able to read 
them but unable also to read English. Section 5 
therefore covered Alaska because it failed to print 
election materials in languages that no one would 
have been able to read, except a handful of people 
who also could read English.

The type of evidence that justified § 5 coverage for 
racial discrimination in the South in 1965 and 1970 
simply did not exist for voting discrimination against 
Alaska Natives in 1975. Congress’ apparent basis 
for including Alaska as a covered jurisdiction was a 
1972 lawsuit alleging that the State violated the 
equal protection rights of Native teens by failing to 
provide local high schools in remote villages (it 
provided boarding school education). See Hootch v. 
State Operated School System, Civil No. 72-2450 
(Super. Ct. Alaska 1973) (cited in S. Rep. No. 94-295 
at 29 (1975)). The state entered into a consent decree 
in 1976, agreeing to build 126 high schools in 
small villages. See Tobeluk v. Lind, 589 P.2d 873, 875 
(Alaska 1979). But long-distance schooling had noth­
ing to do with voting discrimination, and even if 
it had, § 5 was not a congruent and proportional 
response to the targeted discrimination. See City o f  
Boerne v. Flores, 521 U.S. 507, 520 (1997). Indeed, 
§ 5’s preclearance requirement does not impact a 
state’s educational spending at all.

28



English-only elections in certain areas were not the 
same kind of “exceptional conditions” that initially 
made § 5’s extraordinary burden constitutionally 
permissible. Congress had no evidence in 1975 that 
Alaska Natives in general were denied the right to 
vote; unlike the jurisdictions covered in 1965 and 
1970, Alaska’s voting practices had never violated 
voters’ constitutional rights. And Alaska was covered 
despite never even violating voters’ statutory rights, 
because it repealed its English-speaking requirement 
five years before language-based voting laws became 
illegal in 1975. Congress had no reason to believe 
that without § 5, Alaska or other states would 
repeatedly devise “unremitting and ingenious” new 
ways to make voting difficult for non-English- 
speaking citizens. Katzenbach, 383 U.S. at 309.

And the 1975 revisions to the bailout provision 
ensured that Alaska would be burdened by § 5 
coverage for at least ten years. Alaska’s repeal of its 
English-speaking requirement went into effect in 
1972, so Alaska could not demonstrate until 1982 
that it had not used this test or device for ten years. 
See Voting Rights Amendments of 1975, Pub. L. No. 
94-73, tit. II, § 201, 89 Stat. 400, 401 (amended 1982, 
2006).

B. Bailout Under the 1982 Standards is a 
Mirage for Alaska.

Even though § 5 coverage for Alaska was not 
constitutionally warranted in 1975, at least Alaska 
had the expectation that it would be able to bail out 
ten years later. But just as the ten-year period 
expired in 1982, Congress changed the bailout crite­
ria so that, in the words of Alaska’s Senator Ted 
Stevens, bailout became “difficult, if  not impossible” 
for Alaska. See Letter from Senator Ted Stevens to

29



Governor Bill Sheffield 8a (March 9, 1983) (attached 
as Appendix C). The new bailout standard was 
touted as a liberalization because it allowed juris­
dictions with histories of discrimination to redeem 
themselves with ten years of compliance, instead of 
tying bailout to a fixed calendar date that was 
pushed further into the future with each amendment 
to the VRA. But the new bailout standards had the 
reverse impact for states; they “require[d] states 
subject to the Act’s special provisions to meet a 
more difficult standard for termination of the Act’s 
coverage.” Memorandum of Three-Judge Panel at 2, 
Alaska v. United States, No. 84-1362 (D.D.C. June 4, 
1985). As Senator Stevens pointed out, for a 
state like Alaska, which “should have never been 
recaptured by the Voting Rights Act’s preclearance 
provisions,” bailout would be forever blocked by 
“technical violations, especially those in Alaska’s 
small second class municipalities.” See App. C at 8a. 
Senator Stevens urged Alaska to attempt to bail out 
before the 1982 amendments became effective on 
August 5, 1984. Id.

Alaska tried. It filed suit on May 1, 1984, 
requesting bailout under the 1975 Act’s standards. 
But the DOJ asked the State for a volume and scope 
of specific information that was mostly unavailable 
and would have taken years to compile. Letter from 
Paul F. Hancock, Assistant for Litigation, Voting 
Section, Civil Rights Division, DOJ, to Norman 
Gorsuch, Alaska Attorney General (June 11, 1984) 
(attached as Appendix D). For example, it requested 
that the State break into four levels of English 
proficiency all the speakers in Alaska for each of 
eleven “primary” Native languages, and provide the 
number of persons of voting age and the number of 
registered voters who spoke each of these eleven

30



languages. Id. at 11a. This was not information col­
lected by the United States Census—nor did Alaska 
conduct its own census—and the speakers of these 
languages lived almost exclusively in remote villages 
spread across a state nearly as wide and high as the 
lower forty-eight states combined.

The DOJ also asked Alaska to demonstrate how 
it informed voting age members who spoke each of 
these languages about every aspect of elections, 
listing seventeen separate categories of information, 
including the requirements and procedures of con­
ducting voter registration drives; the location of 
election district boundaries and changes in locations 
or realignment of districts; the requirements and 
procedures for designating and regulating candidates’ 
poll watchers; and rules applicable to candidates’ 
financial disclosure and campaign finance state­
ments. And because the bailout standards applied to 
all of the subdivisions within the state, the DOJ 
further requested that the State “identify every 
jurisdiction in the state that independently conducts 
elections” and for “each such jurisdiction . . . obtain 
and provide the information that is requested . . . 
above.” Id. at 19a.

This request was a far cry from the DOJ’s repre­
sentation to this Court in 1966 that bailing out would 
be a simple matter of submitting affidavits from 
voting officials and refuting any evidence of discrimi­
nation adduced by the DOJ. Katzenbach, 383 U.S. at 
332. Nevertheless, with the assistance of a number 
of Alaska Native organizations, the State gave the 
DOJ a lengthy report, attempting to provide the 
requested information. Despite the State’s efforts, the 
DOJ alleged to the court that Alaska had applied a 
test or device with the purpose or effect of denying or

31



abridging language minorities’ right to vote during 
the previous ten years. Without giving Alaska a 
chance to litigate the issue, the DOJ moved to 
dismiss the bailout complaint because Alaska had not 
successfully obtained a judgment before the August 
5, 1984 effective date of the amendments. The three- 
judge panel agreed that Alaska could proceed with 
bailout only under the new standards. Memorandum 
of Three-Judge Panel at 7, Alaska v. United States, 
No. 84-1362 (D.D.C. June 4, 1985). The DOJ then 
propounded ninety-seven interrogatories spanning 
fifty-four pages and asked that the State provide 
answers pertaining not only to the State, but also to 
each municipality and educational system subdivi­
sion in Alaska. Letter from Lora Tredway, Attorney, 
Voting Section, Civil Rights Division, DOJ, to 
Virginia Ragle, Alaska Assistant Attorney General 
(May 23, 1985) (attached as Appendix E). Faced 
with this oppressive discovery burden—a clear signal 
that the DOJ would not consent to bailout—Alaska 
dismissed its case.

Alaska has never again been eligible for bailout 
because it has not maintained the ten-year perfect 
record required under the 1982 amendments. Bailout 
was unavailable for a decade because Alaska 
“enforced” the repeal of its statute providing for a 
presidential primary election before receiving DOJ’s 
preclearance letter. See Letter from Virginia Ragle, 
Alaska Assistant Attorney General, to Maggie 
Moran, Legislative Assistant to Senator Ted Stevens 
24a (March 14, 1985) (attached as Appendix F). 
Bailout was then precluded by the DOJ’s 1993 
objection to the state’s redistricting plan after the 
1990 census. See supra, p. 10. Not quite ten years 
later, the clock was reset again by the failure of the 
Municipality of Anchorage, which is not under the

32



State’s control, to preclear a change to its mayoral 
election rules. See generally Luper v. Municipality 
o f Anchorage, 268 F. Supp. 2d 1110 (D. Alaska 2003). 
In 2009 and 2010, the DOJ assigned federal obser­
vers to Bethel, restarting the clock yet again. Then, 
as the State attempted to prepare for the 2012 
elections using an interim redistricting plan ordered 
by the Alaska Supreme Court—the only way it could 
hold the 2012 election on time—it was sued for 
violating § 5 because the plan had not yet been 
precleared. See Samuelsen v. Treadwell, No. 3:12-cv- 
0018-RRB-AK-JKS (D. Alaska). Although that law­
suit was mooted by the DOJ’s preclearance of the 
plan, if  the state of the law remains unchanged, it 
is an open question whether this disqualifies Alaska 
from bailing out until 2022.

If it does, by the time Alaska becomes eligible for 
bailout again, the State will have been subject to 
the extraordinary and intrusive federal oversight 
imposed by § 5 for forty-seven years, despite the fact 
that no federal court has ever issued a judgment 
finding that Alaska has violated either the guaran­
tees of voting rights in the federal constitution or the 
VRA.

As this history shows, as a result of overreaching 
by Congress and the DOJ, Alaska is now indefinitely 
locked into § 5 coverage. Congress applied § 5 to 
Alaska by virtue of the Fourteenth Amendment with­
out any finding that it was engaging in voting 
discrimination, and the perfection required to bail out 
has left the State without any real hope that this will 
change.

33

*  *  *



For these reasons, this Court should reverse the 
judgment of the Circuit Court and should find that 
Congress’ 2006 reauthorization of § 5 of the VRA 
under the pre-existing coverage formula exceeded 
its authority under the Fourteenth and Fifteenth 
Amendments and thus violated the United States 
Constitution.

34

Respectfully submitted,

M ic h a e l  C. G e r a g h t y  
Attorney General 

M a r g a r e t  Pa t o n  W a l s h  
Counsel of Record 

Jo a n n e  M . Grace  
Ru t h  B o t st e in  
Th e  Sta t e  o f  A l a s k a  
1031 W. 4th Avenue, Suite 200 
Anchorage, AK 99501 
(907) 269-6612
margaret.paton-walsh@alaska.gov
Counsel for Amicus 

The State of Alaska

mailto:margaret.paton-walsh@alaska.gov


APPENDIX



la
APPENDIX A

[Seal omitted]

Office of the Attorney General 
Washington, D.C. 20530

Billing Code 4410-13

UNITED STATES DEPARTMENT OF JUSTICE 
Attorney General

CERTIFICATION OF THE ATTORNEY GENERAL 
BETHEL CENSUS AREA, ALASKA

In accordance with Section 8 of the Voting Rights 
Act, as amended, 42 U.S.C. § 1973f, I hereby certify 
that in my judgment the appointment of federal 
observers is necessary to enforce the guarantees of 
the Fourteenth and Fifteenth Amendments of the 
Constitution of the United States in the Bethel 
Census Area, Alaska. This area is included within 
the scope of the determinations of the Attorney 
General and the Director of the Census made under 
Section 4(b) of the Voting Rights Act, 42 U.S.C. 
§ 1973b(b), and published in the Federal Register on 
October 22, 1975 (40 Fed. Reg. 49,422).

/s/ Eric H. Holder 
ERIC H. HOLDER JR.
Attorney General of the United States

Dated: 10-1-09



2a
APPENDIX B

[Seal omitted] U.S. Department of Justice
Civil Rights Division

Office o f the Assistant Washington, D.C. 20035 
Attorney General

September 28, 1993

Virginia B. Ragle, Esq.
Assistant Attorney General 
State of Alaska
P.O. Box 110300 -  State Capitol 
Juneau, Alaska 99811-0300

Dear Ms. Ragle:

This refers to the 1993 redistricting plans for the 
state House and Senate in Alaska, submitted to the 
Attorney General pursuant to Section 5 of the Voting 
Rights Act of 1965, as amended, 42 U.S.C. 1973c. We 
received your initial submission on June 4, 1993; on 
August 3, 1993, we informed you that our receipt on 
July 30, 1993 of material supplemental information 
extended our deadline for making a determination to 
September 28, 1993. Additional supplemental infor­
mation was received on September 21 and 27, 1993.

We have considered carefully the information you 
have provided, as well as comments and information 
from other persons. The Interim Plan ordered 
into effect by the Alaska state courts and precleared 
on July 8, 1992 serves as the benchmark for our 
analysis. State o f Texas v. United States, 785 F.Supp. 
201, 205 (D.D.C. 1992); see the Procedures for the 
Administration of Section 5 (28 C.F.R. 51.54(b)).



The proposed plan reduces the Alaskan Native 
share of the voting age population in House District 
36 from 55.7 percent to 50.6 percent. It moves ap­
proximately 700 residents of the Lake and Peninsula 
Borough (among whom 70 percent are Alaskan 
Native) from District 36 to District 40, and moves 
approximately 1,080 residents (among whom over 90 
percent are white) from the Copper River Valley 
into District 36 from District 35. Senate District R, 
which includes House District 36, declines from 33.5 
percent to 30.5 percent in Alaskan Native voting age 
population, due to the removal of the majority-Native 
areas in the Lake and Peninsula Borough and 
the addition of approximately 2,150 persons (among 
whom over 90 percent are white) from the Palmer 
area. Athabascan Indians are the predominant 
minority language group in House District 36 and 
Senate District R.

Although the state courts do not appear specifically 
to have identified any changes to House District 36 or 
Senate District R that are required as a matter of 
state law, we have considered the state’s contention 
that unification of the Lake and Peninsula Borough 
is a primary consideration under state law. Our 
analysis indicates that even if removal of the Lake 
and Peninsula Borough population from District 36 is 
required as a matter of state law, such a change does 
not require the reduction in Alaskan Native percent­
age occasioned by the proposed addition of population 
to District 36 from the Copper River Valley area.

Several areas with significantly greater Alaskan 
Native populations than the Copper River area, 
including the Nenana area and two villages in the 
Kuskokwim River area, were included in District 36

3a



in one or more alternative plans considered by the 
Board. Indeed, the Nenana area had been included 
in Native-majority Interior districts under prior state 
redistricting plans. The information available to us 
indicates that the inclusion of one or more of these 
areas in House District 36 could have lessened or 
eliminated the reduction in the Alaskan Native share 
of the population in that district. Although your 
submission has provided evidence of opposition to 
placing Nenana into District 36, there appears to 
have been significant support for such a change, par­
ticularly within the Athabascan Indian community.

The state also contends that it has a significant 
interest in placing all residents of the Copper 
River Valley into District 36. Unlike the Lake 
and Peninsula Borough, however, the Copper River 
Valley is not an organized political subdivision. Nor 
does it appear that the objective of uniting specific 
communities along the length of the Copper River 
Valley required the addition of the entire region to 
House District 36.

In addition, the state contends that the proposed 
reductions in the Alaskan Native percentage in 
House District 36 and Senate District R are not 
significant because the 1992 election results show 
that voting in not radically polarized in the areas 
encompassed by those districts. However, our analysis 
indicates that although Alaskan Native candidates 
who were the preferred candidates among Alaskan 
Native voters were elected in 1992 to both House 
District 36 and Senate District R, there appears to 
have been a pattern of racially polarized voting in 
elections involving these districts, in which white 
voters’ preferences differed from those of Alaskan

4a



Native voters. In these circumstances, the proposed 
reduction in the Alaskan Native voting strength 
would appear to diminish the ability of Alaskan 
Native voters to elect candidates of their choice.

Under Section 5 of the Voting Rights Act, the 
submitting authority has the burden of showing that 
a submitted change has neither a discriminatory 
purpose nor a discriminatory effect. See Georgia v. 
United States, 411 U.S. 526 (1973); 28 C.F.R. 51.52. 
In light of the considerations discussed above, I 
cannot conclude, as I must under the Voting Rights 
Act, that your burden has been sustained in this 
instance. Therefore, on behalf of the Attorney 
General, I must object to the proposed redistricting 
plans for the state Senate and House to the extent 
that each incorporates the proposed configuration for 
House District 36 discussed above.

We note that under Section 5 you have the right to 
seek a declaratory judgment from the United States 
District Court for the District of Columbia that the 
proposed changes have neither the purpose nor will 
have the effect of denying or abridging the right to 
vote on account of race, color, or membership in a 
language minority group. In addition, you may 
request that the Attorney General reconsider the 
objection. However, until the objection is withdrawn 
or a judgment from the District of Columbia Court is 
obtained, the 1993 redistricting plans continue to be 
legally unenforceable. Clark v. Roemer, 111 S.Ct. 
2096 (1991); 28 C.F.R. 51.10, 51.11, and 51.45.

To enable us to meet our responsibility to enforce 
the Voting Rights Act, please inform us of the action 
the state plans to take concerning this matter. If you

5a



have any questions, you should call Robert A. Kengle 
(202-514-6196), an attorney in the Voting Section.

Sincerely,
/s/ James P. Turner 
James P. Turner
Acting Assistant Attorney General 
Civil Rights Division

6a



7a
APPENDIX C

United States Senate 
Committee on Appropriations 

Washington, D.C. 20510

March 9, 1983

The Honorable Bill Sheffield
Governor
State of Alaska
Pouch A
Juneau, AK 99811 

Dear Bill:

Last summer you may recall that Congress 
extended and revised the Voting Rights Act of 1965.

Alaska has been covered by the Act several times, 
mostly for technical reasons. The State has managed 
to bring actions which removed Alaska from the Act’s 
coverage, particularly its election law pre-clearance 
provisions. See Alaska v. United States, C.A. No. 101- 
66 (D.D.C. Aug. 17, 1966); Alaska v. United States,
C.A. No. 2122-21 (D.D.C. Mar. 10, 1972).

Alaska is still under the Act, and has been since 
the U.S. Attorney General and Director of Census 
determined that Alaska was recaptured under the 
1975 Voting Rights Amendments. The State again 
filed another bail-out suit after the 1975 amendments 
were enacted, but abandoned the action. The U.S. 
Attorney General would not consent to an entry of 
judgment in favor of the state, since the Attorney 
General denied that “no test or device has been used 
anywhere in the state of Alaska during the ten years 
preceding the filing of this action for the purpose or



8a
with the effect of denying or abridging the right of 
citizens of the United States to vote because they 
were members of language minority groups.” See 
Alaska u. United States, C.A. No. 78-0484 (D.D.C. 
May 14, 1979) (stipulated dismissal of action).

In my judgment, the state should seriously con­
sider renewing a bail-out action before the 1982 
Voting Rights Act Amendments take effect on August 
5, 1984. It has been over ten years since the State 
had an English language speaking requirement in its 
Constitution, and I believe that the state now has its 
best opportunity to prove that no other test or devices 
have been used in the last ten years to deny language 
minorities the right to vote. Alaska is still eligible to 
bail out from under the Act’s pre-clearance provisions 
as the law presently stands. If the State waits to bail 
out under the new criteria after August of 1984, it 
will be very difficult, if  not impossible, to do so.

When the 1982 Voting Rights Act Amendments 
were considered on the Senate floor, I attempted to 
offer my own amendments which would have made 
the bail-out criteria fairer to states like Alaska. The 
amendments would have prevented technical viola­
tions, especially those in Alaska’s small second class 
municipalities, from disallowing the State to bail out. 
Unfortunately, the bail-out criterion was not modi­
fied, and if Alaska chooses to attempt its fourth bail­
out action after August 5, 1984, it will in all like­
lihood be unsuccessful. Therefore, you and the 
Attorney General may want to consider commencing 
an action before that date. It’s my firm belief that 
Alaska should have never been recaptured by the 
Voting Rights Act’s pre-clearance provisions. We are 
the only state to even successfully bail out of this



Act, not just once, but twice. If a bail-out suit is 
commenced, it is my hope that it will be our last one.

If you should have any further questions, please do 
not hesitate to contact me or Mark Barnes of my 
staff.

Thanks again, Bill, for your attention to this 
matter.

With best wishes,

9a

Cordially,

/s/ Ted Stevens 
TED STEVENS



10a
APPENDIX D

[Seal omitted] U.S. Department of Justice

PFH:RSB:LLT:sw 
DJ 166-6-4

Washington, D.C. 20530
June 11, 1984

Honorable Norman C. Gorsuch 
Attorney General, State of Alaska 
Department of Law 
Pouch K - State Capitol 
Juneau, Alaska 99811

Re: Alaska v. United States, No. 84-1362 
(D.D.C.)

Dear Mr. Attorney General:

We have been informed by Assistant Attorney 
General Virginia Ragle that your office is willing to 
provide, on an informal basis, factual information 
concerning elections in the State of Alaska to assist 
us in determining whether to consent to judgment in 
the above-referenced action. We appreciate your 
efforts to provide the information, and I write this 
letter to describe the factual information that we 
believe to be necessary.

As you will note from the inquiries below, we are 
attempting to obtain a complete description of the 
election structure and practices of the State of 
Alaska, and also are attempting to learn the precise 
steps taken by the state to enable members of 
the state’s language minority groups to participate



effectively in the electoral process. Although the 
“language minority” groups of the State of Alaska are 
classified broadly in the Voting Rights Act as Alas­
kan Natives, we are aware that this broad category 
includes groups of persons who speak distinct lan­
guages. Thus, it would be helpful to our investigation 
if you would subdivide the responses for, or include 
information relevant to, each language spoken. To 
the best of our knowledge, the primary languages 
spoken are the following:

Aleut, Inupiaq, Central Yupik, Siberian Yupik,
Sugcestun Aleut, Tlingit, Upper Kuskokwim,
Upper Tanana, Koyukon, Kutchin, and Ingalik.

It also would be helpful if  you would provide the 
source of your response to each inquiry so that we 
may know who to contact for any necessary addi­
tional information.

The information we request is the following:

1. Describe the geographic boundaries of the areas 
into which the state has been divided for the conduct 
of elections (statewide and local). If the state’s elec­
tion districts are coterminous with the boroughs and 
census areas designated in the 1980 Census, please 
so indicate.

2. For the state as a whole and for each area 
described in the response to item 1, please list:

a) the total population and the number of per­
sons who are members of each language 
minority group;

b) the total voting age population and the num­
ber of persons of voting age who are mem­
bers of each language minority group; and

11a



c) the total number of registered voters and the 
number of registered voters who are mem­
bers of each language minority group.

If exact figures are unavailable, please estimate 
and state the basis for any estimated figures.

3. For each language minority group identified 
in response to items 2(a) and 2(b), please list the 
approximate number of persons who speak the par­
ticular language:

a) as a primary language and have little or no 
ability in English;

b) as a primary language and have difficulty 
with English;

c) as a primary language and are bilingual in 
English; and

d) as a secondary language with English as a 
primary language.

If exact figures are unavailable, please estimate 
and state the basis for any estimated figures. Please 
also identify the Native Alaskan languages that have 
been reduced to a written form, and indicate the 
extent to which the written form is used by the appli­
cable language minority groups listed in response to 
items 2(a) and 2(b).

4. During previous litigation with the state in 
Alaska v. United States, No. 78-0484 (D.D.C. 1979), 
the United States deposed Dr. Michael Krause, Chief 
Linguist of the Alaskan Native Language Center. In 
his testimony, a copy of which is attached, Dr. Krause 
described the literacy in the English language of 
Alaskan Natives in various areas of the state. We

12a



would appreciate your reviewing the deposition 
and indicating whether you believe that Dr. 
Krause’s description accurately portrays the English- 
comprehension ability of Alaskan Natives during the 
past ten years.

If you disagree with Dr. Krause’s conclusions, please 
provide the basis for your belief and your source(s) of 
authority. Also, if you believe Dr. Krause’s views are 
incorrect, please describe the English-comprehension 
ability for each language minority group by age 
groups 18-24, 25-39, 40-55, and over 55, and indicate 
the source(s) of authority. Indicate how, if at all, the 
English-comprehension ability of each group has 
changed during the past ten years.

5. Describe any publicity that the state initiated 
after 1970 to inform the electorate that the English- 
only voting provision had been repealed. Indicate 
whether announcements of this change in the law 
were made to language minority groups. Please 
provide a copy of any such announcement and an 
English translation, and describe the method by 
which the announcement was conveyed to each 
language minority group.

6. Please provide an explanation of state programs 
or procedures to enable members of applicable lan­
guage minority groups to participate effectively in all 
aspects of the electoral process. At a minimum, 
please include information for each area of voting- 
connected activity listed below, and indicate how far 
in advance of any relevant deadline or scheduled 
election the information is provided both in English 
and in the applicable minority languages. Where 
appropriate, please distinguish between primary and 
general elections. Also indicate the date that any

13a



bilingual program or procedure was initially insti­
tuted or implemented, and, if relevant, the date when 
any program or procedure was discontinued, along 
with the rationale for such discontinuance.

a) Describe the manner in which both English- 
speaking and non-English-speaking persons 
are informed of the requirements and pro­
cedures for registering to vote and for 
conducting voter registration drives, and 
describe how such persons are informed of 
the location and hours of operation at regis­
tration locations.

b) Describe the bilingual assistance that is 
offered in the voter registration process.

c) Describe the manner in which both English- 
speaking and non-English-speaking electors 
are informed of the location of polling places 
and of election district boundaries, as well as 
of any changes in locations or realignment of 
districts.

d) Describe the manner in which both English- 
speaking and non-English-speaking electors 
are informed of the requirements and proce­
dures to qualify as a candidate for public 
office, both by political party and as an 
independent.

e) Describe the manner in which, prior to an 
election, both English-speaking and non- 
English-speaking electors are provided 
information regarding the contents of the 
ballot, including the content of referenda or 
other special provisions or matters.

14a



f) Describe what bilingual announcements are 
made of election dates and hours of polling.

g) Both prior to an election and at the polls, 
describe the manner in which both English- 
speaking and non-English-speaking electors 
are informed of the procedure for balloting.

h) Describe the manner in which both English- 
speaking and non-English-speaking electors 
are informed of the requirements and proce­
dures for designating candidates’ poll watch­
ers and the restrictions placed on the use of 
such watchers.

i) Describe the manner in which both English- 
speaking and non-English-speaking electors 
are informed of the procedure for obtaining 
and casting an absentee ballot.

j) Describe the manner in which both English- 
speaking and non-English-speaking electors 
are informed of the qualifications and proce­
dure for receiving assistance in voting, 
especially bilingual assistance.

k) Describe what bilingual assistance is offered 
to non-English-speaking voters in the bal­
loting process.

l) Describe the manner in which both English- 
speaking and non-English-speaking electors 
are informed of the requirements and proce­
dures for contesting or challenging an elec­
tion.

7. Please indicate whether the state disseminates 
information to the electorate regarding the following:

15a



a) requirements and criteria for establishing 
political parties and any standards such new 
parties must satisfy in order to place a can­
didate on the election ballot;

b) requirements for filing candidates’ personal 
financial disclosure statements, campaign 
financing statements, or similar documents, 
and the sanctions for non-compliance;

c) regulations regarding paid political adver­
tisements and of restrictions on the use of 
campaign materials generally or on cam­
paign activities within the vicinity of a poll­
ing place, including the use of sample ballots 
by electors.

If so, please describe the manner in which both Eng­
lish-speaking and non-English-speaking electors are 
provided such information.

8. Please provide a copy of the English and minor­
ity language electoral publications or forms that are 
provided to the electorate, including (but not limited 
to) the state’s official election handbook or pamphlet 
containing pictures and statements by candidates 
regarding their qualifications; voter registration 
forms; ballots; absentee voting materials, including 
applications and ballots; and any notices or instruc­
tions. Also, please include a tape, along with 
an English translation, of the oral dissemination of 
that electoral information in the applicable minority 
languages.

9. In connection with the Section 4 declaratory 
judgment action of 1978-79, the United States 
deposed Margaret Sirilo, an Eskimo and resident of 
Bethel who had served several years as an election

16a



judge. In her testimony, a copy of which is attached, 
Mrs. Sirilo stated that her first language was English 
and that she also spoke Yupik (Upik). Mrs. Sirilo 
testified that she had provided bilingual assistance -  
without benefit of any translation supplied by the 
state — to voters who had difficulty comprehending 
the English-only ballot. She indicated that translat­
ing the ballot into Yupik was difficult even for those 
election officials who spoke both languages.

We would appreciate your reviewing the deposition 
and indicating whether you believe that Mrs. Sirilo’s 
account accurately describes the activities and expe­
rience of an election judge in providing bilingual 
assistance. If you disagree with Mrs. Sirilo’s state­
ments and observations, please provide the basis for 
your belief and your source(s) of authority. Please 
describe the manner in which the state ensures that 
bilingual voter registrars and election officials are 
capable of providing appropriate and adequate bilin­
gual assistance in the applicable minority languages.

10. If not provided in your response to item 9 
above, please describe any program that the state 
conducts to train or educate voter registrars, election 
officials, and other persons regarding bilingual assis­
tance to electors or to persons desiring to participate 
in the electoral process.

11. It is our understanding that the state has 
access to the broadcast media or to telecommunica­
tions systems for public service programming. Please 
describe in detail such media or systems, including 
area of the state that can be reached. If not provided 
in your response to item number 6, describe what 
uses the state has made of such media or systems, 
including use in the electoral process.

17a



18a
12. Indicate whether the state has conducted any 

studies or surveys regarding the following:

a) the need for providing bilingual information 
or procedures to electors or persons desiring 
to participate in the electoral process;

b) the availability of bilingual information or 
procedures to electors or person desiring to 
participate in the electoral process; and

c) the use and effectiveness of any bilingual 
procedures that have been provided.

Please provide a copy of each such study or survey 
that is identified, along with the following infor­
mation, if it is not included in the actual publication: 
the dates, sponsor, and methodology; the portion of 
the electoral process that was the subject matter; and 
recommendations made and actions undertaken, as a 
result of the findings.

13. Other than electoral information, indicate 
whether the state has provided information to state 
residents in any Native Alaskan language. Describe 
the information that is provided in the Native 
Alaskan languages and explain the reasons for using 
the language.

14. Describe any persons and groups, whether 
formally or informally organized, that the state con­
siders to be representative of the interests and con­
cerns of language minority groups, or any of them, 
especially in electoral matters. Please provide the 
name of an officer of any group so identified, along 
with a current address and telephone number.

15. Describe in detail what contact the state has 
had or maintained with each person or group identi­



fied in item 14 concerning the dissemination of elec­
toral information in the applicable minority lan­
guages or concerning the effective participation of 
such persons in the electoral process.

16. Please describe in detail any constructive 
efforts by the state to achieve the following:

a) the elimination of voting procedures, includ­
ing English-only elections, that inhibit equal 
access by Alaskan Natives to the electoral 
process;

b) the expansion of opportunities for convenient 
registration and voting for electors who are 
Alaskan Natives;

c) the appointment of Alaskan Natives as elec­
tion officials at every level in the state and 
at all stages of the registration and election 
processes.

17. As you are aware, the standards for the state 
to bailout from coverage under Section 4 apply not 
only to the state as an entity, but also to all of the 
subdivisions within the state. Therefore, please iden­
tify every jurisdiction in the state that independently 
conducts elections. For each such jurisdiction, please 
obtain and provide the information that is requested 
in items 1-16 above.

18. Please feel free to provide any additional 
information that you believe to be relevant to this 
litigation.

As mentioned previously, these inquiries are 
designed to obtain a complete understanding of the 
bilingual election program that the state offers. In 
asking these questions, we have attempted to avoid

19a



being too general and, at the same time, being so spe­
cific that you are limited in your responses. We are 
prepared to discuss these matters with you so that 
the factual development may proceed promptly. If 
you have any questions, please contact either Robert 
S. Berman at 202-724-3100 or Lora L. Tredway at 
202-724-3113.

20a

Sincerely,
/s/ Paul F. Hancock 
Paul F. Hancock 
Assistant for Litigation 
Voting Section 
Civil Rights Division

Attach.



21a
APPENDIX E

[Seal omitted] U.S. Department of Justice
Civil Rights Division

LLT:sw 
DJ 166-6-4

Washington, D.C. 20530
May 23, 1985

Virginia Ragle, Esq.
Assistant Attorney General 
State of Alaska
Department of Law, State Capitol 
Pouch “K”
Juneau, Alaska 99811 

Dear Ms. Ragle:

Enclosed please find the United States’s first set 
of interrogatories directed to the State of Alaska pur­
suant to Rule 33 of the Federal Rules of Civil Proce­
dure. As you will note, the interrogatories are struc­
tured into three parts in order to obtain certain basic 
information concerning, first, the state; second, each 
of the state’s municipalities; and, finally, each of the 
state’s educational system subdivisions. In each of 
the three parts, we in essence have repeated the 
same questions, merely directing them to a different 
level of government.

The interrogatories request a substantial amount 
of information, but we believe that all of the infor­
mation sought is relevant to the factors that must be 
established to obtain bailout. We recognize that it 
may be difficult for the state to complete its res­
ponses within the thirty-day period provided under



22a
the Federal Rules of Civil Procedure. Therefore, we 
will agree to a reasonable extension of time in which 
to complete the answers; any objections should be 
filed within the thirty-day period. Also, we recognize 
that it will be necessary to obtain information from 
the individual municipalities and school districts, and 
we would have no objection to each such jurisdiction 
completing a separate response. We do request, 
however, that a state-level official review any such 
responses to assure uniformity and completeness.

We would appreciate your reviewing the interroga­
tories at your earliest convenience and telling us 
whether such initial review reveals any particular 
problems. We are willing to cooperate with state offi­
cials in obtaining the information, and, if you believe 
that any interrogatory is unduly burdensome, we will 
consider suggestions of alternate means of obtaining 
the information. In sum, we are willing to seek a 
voluntary resolution of any problems that may arise 
in answering the interrogatories.

If you have any questions, please feel free to 
contact me at (202) 724-3113.

Sincerely,
/s/ Lora L. Tredway 
Lora L. Tredway 
Attorney, Voting Section 
Civil Rights Division

cc: Martha Fox, Esq.



23a
APPENDIX F

March 14, 1985

Ms. Maggie Moran 
Legislative Assistant to 

Senator Ted Stevens 
522 Hart Building 
Washington, D.C. 20510

Re: Alaska v. United States,
No. 84-1362 (D.D.C.)
Voting Rights Act preclearance bailout

Dear Ms. Moran:

You have requested further information concerning 
the state’s action for declaratory judgment to “bail­
out” of the preclearance requirements of the Voting 
Rights Act. That action was filed on May 1, 1984. 
Every possible effort was made, with the cooperation 
of Senator Stevens’ office and a number of Native 
organizations throughout the state, to provide the 
U.S. Department of Justice with the information it 
needed to consent to judgment. Nevertheless, in its 
answer filed on July 24, 1984, the department denied 
that the state had applied no test or device for the 
purpose or with the effect of denying or abridging the 
right to vote on account of membership in a language 
minority group during the 10 years preceding the 
filing of the action.

On August 5, 1984, new provisions of the Voting 
Rights Act became effective, which greatly increased 
the burden that must be met by the state in a bailout 
action. One of the additional requirements is that



the state must prove that, for the past 10 years, no 
change in any voting practice or procedure by the 
state or any of its political subdivisions has been 
enforced without having first been precleared.

The state has amended its complaint to allege, in 
one count, compliance with the bailout standards in 
effect before August 5, 1984, and in a second count, 
compliance with the bailout standards in effect on 
and after August 5, 1984. The Department of Justice 
has moved to dismiss Count I of the complaint. In 
opposition to that motion we have cited legislative 
history that indicates that Congress did not intend 
the new standards to apply to pending actions (see 
United States u. Marengo County Commission, 731 
F.2d 1546, 1554 (11th Cir. 1984)), and have argued 
that application of the new standards to this action 
would be manifestly unjust.

If the court grants the Department of Justice’s 
motion to dismiss, the state will have to prove the 
facts necessary to entitle it to bailout under the new 
standards. This we cannot do. The Department of 
Justice is well aware that, last year, the state 
“enforced” the repeal of the statute providing for a 
presidential primary election before receiving the 
preclearance letter from the Department of Justice.

When the Department of Justice refused to consent 
to judgment last year, we requested that Senator 
Stevens explore the possibility of a legislative solu­
tion. The solution that seemed least disruptive of the 
Voting Rights Act was an amendment clarifying that 
the standards in effect on the date of filing would 
be applied in determining a bailout action. This 
amendment would affect only the State of Alaska, 
since no other bailout action was pending on August

24a



5, 1984. The governor has renewed the request for 
this amendment.

In July, we sent Senator Stevens a copy of the 
three volume report and appendices we provided to 
the Department of Justice in support of the action. 
Enclosed for your further information, are copies of 
the state’s second amended complaint, the Depart­
ment of Justice’s motion to dismiss Count I and the 
state’s opposition to the motion to dismiss.

Please do not hesitate to call if we can provide you 
with any further information concerning this action.

Very truly yours,

NORMAN C. GORSUCH 
ATTORNEY GENERAL
By:

Virginia B. Ragle 
Assistant Attorney General

25a

VBR/pjg