Shelby County v. Holder Brief Amici Curiae

    No. 12-96

In  The

Shelby County, Alabama,
Petitioner,

v.

Eric H. Holder, Jr., Attorney General, et al.,
Respondents.

ON WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR AMICI CURIAE MARCIA L. FUDGE, 
MEMBER OF CONGRESS AND CHAIR OF THE 

CONGRESSIONAL BLACK CAUCUS, RUB^N 
HINOJOSA, MEMBER OF CONGRESS AND CHAIR 

OF THE CONGRESSIONAL HISPANIC CAUCUS, AND 
JUDY CHU, MEMBER OF CONGRESS AND CHAIR OF 
THE CONGRESSIONAL ASIAN PACIFIC AMERICAN 
CAUCUS, ET AL., IN SUPPORT OF RESPONDENTS

Danielle Spinelli 
Counsel of Record 

Danielle Conley 
Kelly P. Dunbar 
Sonya L. Lebsack 
Wilmer Cutler Pickering 

Hale and Dorr llp 
1875 Pennsylvania Ave., NW 
Washington, DC 20006 
(202) 663-6000
danielle.spinelli@wilmerhale.com

mailto:danielle.spinelli@wilmerhale.com


TABLE OF CONTENTS

TABLE OF AUTHORITIES.........................................iii
INTEREST OF AMICI CURIAE.................................. 1
INTRODUCTION AND SUMMARY OF

ARGUMENT...............................................................4
ARGUMENT......................................................................6
I. A Deferential Standard Governs Ju­

dicial Review Of Congress’s Decision 
To Reauthorize Section 5 In The Cov­
ered Jurisdictions............................................... 6

II. In 2006, Congress Made A Considered
And Well-Supported Judgment That 
Section 5 Remains Necessary To Pro­
tect Minority Voting Rights..............................8
A. The Record Before Congress Demon­

strated The Continuing Need For Sec­
tion 5.......................................................................9
1. Turnout and registration............................ 9
2. Minority elected officials............................ 10
3. Section 5 objections.................................... 12
4. Other categories of evidence......................14

B. Congress Properly Determined That
Bailout And Bail-in Mechanisms Would 
Ensure That Section 5 Applied Only To 
Jurisdictions Where It Was Needed................16

Page

(i)



11

TABLE OF CONTENTS— Continued

Page
III. Developments Since 2006 Confirm The 

Reasonableness Of Congress’s Judg­
ment That There Is A Continuing 
Need For Section 5 In The Covered 
Jurisdictions........................................................ 19
A. The Court May Consider Post-

Enactment Evidence......................................... 19
B. Post-Enactment Objections Confirm

The Continuing Need For Section 5................20
C. Post-2006 Litigation Over Texas’s Re­

districting Underscores The Ongoing
Importance Of The Section 5 Preclear­
ance Process........................................................25

D. Post-2006 Evidence Confirms That The 
Bailout Mechanism Continues To Ad­
vance The Requirement Of Propor­
tionality................................................................27

IV. Congress Properly Determined That 
Section 2 A lone Is A n “Inadequate 
Remedy” ....................................................................29

CONCLUSION................................................................34
ADDENDUM



Ill

TABLE OF AUTHORITIES 

CASES
Page(s)

Bartlett v. Strickland, 556 U.S. 1 (2009)...................3,19
Board of Trustees of the University of Ala­

bama v. Garrett, 531 U.S. 356 (2001)........................8
City ofBoeme v. Flores, 521 U.S. 507 (1997)..... 8,17,29
City of Mobile v. Bolden, 446 U.S. 55 (1980)................30
City of Rome v. United States, 446 U.S. 156

(1980)................................................................. passim
Coleman v. Court of Appeals of Maryland, 132

S. Ct. 1327(2012).......................................................5
Favors v. Cuomo, 2012 WL 1802073 (E.D.N.Y.

May 16,2012)..............................................................31
Fullilove v. Klutznick, 448 U.S. 448 (1980)....................7
Georgia v. United States, 411 U.S. 526 (1973)................4
Gonzalez v. Raich, 545 U.S. 1 (2005).............................20
Jackson v. Perry, 124 S. Ct. 1143 (2004).......................31
Johnson v. California, 543 U.S. 499 (2005)....................8
Katzenbach v. Morgan, 384 U.S. 641 (1966)...................8
Lopez v. Monterey County, 525 U.S. 266 (1999)..............4
LULAC v. Perry, 548 U.S. 399 (2006)................... 27,31
Nevada Department of Human Resources v.

Hibbs, 538 U.S. 721 (2003)........................................ 19
Northwest Austin Municipal Utility District

Number One v. Holder, 557 U.S. 193 (2009).... passim



TABLE OF AUTHORITIES— Continued

Page(s)
Northwest Austin Municipal Utility District 

Number One Austin v. Mukasey, 573 F.
Supp. 2d 221 (D.D.C. 2008).......................................13

Perry v. Perez, 132 S. Ct. 934 (2012)..............................31
Reynolds v. Sims, 377 U.S. 533 (1964)..........................31
Rogers v. Lodge, 458 U.S. 613 (1982)............................ 12
Rostker v. Goldberg, 453 U.S. 57 (1981)........................6
South Carolina v. Katzenbach, 383 U.S. 301

(1966).................................................................. 4, 9,29
South Carolina v. United States, 2012 WL

4814094 (D.D.C. Oct. 10, 2012)...........................24,25
Tennessee v. Lane, 541 U.S. 509 (2004).....................8,19
Texas v. Holder, 2012 WL 3743676 (D.D.C.

Aug. 30,2012)................................................22,23, 24
Texas v. United States, 2012 WL 3671924 

(D.D.C. Aug. 28, 2012), jurisdictional 
statement filed, No. 12-496 (U.S. Oct. 19,
2012).............................................................. 25, 26, 27

Turner Broadcasting System, Inc. v. FCC, 512
U.S. 622(1994)...................................................... 7, 33

Village of Arlington Heights v. Metropolitan 
Housing Development Corporation, 429 U.S. 
252(1977)....................................................... 21, 26,27

Wold Communications, Inc. v. FCC, 735 F.2d 
1465 (D.C. Cir. 1984)..........................

Yick Wo v. Hopkins, 118 U.S. 356 (1886)
20
..8



V

DOCKETED CASES

TABLE OF AUTHORITIES— Continued

Page(s)

Texas v. Holder, No. 12-cv-128 (D.D.C.).........................24

CONSTITUTIONAL PROVISIONS, STATUTES, AND 
REGULATIONS

U.S. Const.
amend. XIV, § 5 ..........................................................4
amend. XV, § 2............................................................4

Voting Rights Act of 1965,42 U.S.C.
§§ 1973 et seq................................................................ 2
§ 1973a(c)....................................................................18
§ 1973b(a)....................................................................17
§ 1973Z(e).....................................................................32

Fannie Lou Hamer, Rosa Parks, Coretta Scott 
King, Cesar E. Chavez, Barbara C. Jordan, 
William C. Velasquez, and Dr. Hector P. 
Garcia Voting Rights Act Reauthorization 
and Amendments Act of 2006, Pub. L. No. 
109-246, 120 Stat. 577, as amended by Pub. 
L. No. 110-258, 122 Stat. 2428 (2008)
§ 2(a).............................................................................4
§ 2(b)(3)............................................................11,12, 27
§ 2(b)(4).......................................................................14
§ 2(b)(4)(A).................................................................12
§ 2(b)(5).......................................................................14
§ 2(b)(7)................................................................... 3, 18
§ 2(b)(9)................................................................... 3, 18
§ 3(c)............................................................................17
§ 6................................................................................ 32

28 C.F.R. §51.37..............................................................16



VI

LEGISLATIVE MATERIALS

An Introduction to the Expiring Provisions of

TABLE OF AUTHORITIES— Continued

Page(s)

the Voting Rights Act and Legal Issues Re­
lating to Reauthorization, Hearing Before 
the S. Comm, on the Judiciary, 109th Cong.
(2006)..........................................................................31

Continuing Need for Section 203’s Provisions 
for Limited English Proficient Voters, 
Hearing Before the S. Comm, on the Judi­
ciary, 109th Cong. (2006)......................................... 16

Modem Enforcement of the Voting Rights Act, 
Hearing Before the S. Committee on the 
Judiciary, 109th Congress (2006).....................30, 33

Reauthorizing the Voting Rights Act’s Tempo­
rary Provisions: Policy Perspectives and 
Views from the Field, Hearing Before the 
Subcomm. on the Constitution, Civil 
Rights, and Property Rights of the S.
Comm, on the Judiciary, 109th Cong.
(2006).............................................................. 29, 30, 32

The Continuing Need for Section 5 Pre­
clearance, Hearing Before the S. Comm, on 
the Judiciary, 109th Cong. (2006)...........................13

To Examine the Impact and Effectiveness of 
the Voting Rights Act, Hearing before the 
Subcomm. on the Constitution of the H. 
Judiciary Comm., 109th Cong. (2005)...................32



Vll

Understanding the Benefits and Costs of Sec­
tion 5 Preclearance, Hearing Before the S.
Comm, on the Judiciary, 109th Cong.
(2006)....................................................................29, 32

Voting Rights Act: An Examination of the 
Scope and Criteria for Coverage under the 
Special Provisions o f the Act, Hearing Be­
fore the Subcomm. on the Constitution of 
the H. Comm, on the Judiciary, 109th 
Cong. (2005)...............................................................17

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

Voting Rights Act: Section 5—History, Scope, 
and Purpose, Hearing Before the Sub­
comm. on the Constitution of the H.
Comm, on the Judiciary, 109th Cong.
(2005)........................................................ 13, 30,31,32

Voting Rights Act: Section 5 of the Act— 
Preclearance Standards, Hearing Before 
the Subcomm. on the Constitution of the H.
Comm, on the Judiciary, 109th Cong.
(2005)....................................................................13, 21

Voting Rights Act: Sections 6 and 8—The Fed­
eral Examiner and Observer Program, 
Hearing before the Subcomm. on the Con­
stitution of the H. Comm, on the Judiciary,

TABLE OF AUTHORITIES— Continued

Page(s)

109th Cong. (2005).................................................... 15
H.R. Rep. No. 109-478 (2006)................................passim



Vlll

TABLE OF AUTHORITIES— Continued

Page(s)

S. Rep. No. 109-295 (2006)...........................5, 9,12,13,15

S. Rep. No. 94-295 (1975)................................................ 10

OTHER AUTHORITIES

DOJ Objection Letter 2006-3856 (Sept. 12,
2006) (Randolph County, Georgia), 
available at http://www.justice.gov/crt/ 
about/vot/sec_5/ltr/l_091206.php............................. 21

DOJ Objection Letter 2009-3078 (Mar. 12, 2010) 
(Gonzales County, Texas), available at 
http://www.justice.gov/crt/about/vot/sec_5/ 
ltr/l_031210.php.........................................................22

DOJ Objection Letter 2011-2495 (Dec. 23, 2011)
(South Carolina), available at 
http://www.justice.gov/crt/about/vot/sec_5/ 
ltr/l_122311.php.........................................................24

DOJ Objection Letter 2011-2775 (Mar. 12. 2012)
(Texas), available at http://www.justice. 
gov/crt/about/vot/sec_5/ltr/l_031212.php.........22, 23

DOJ Objection Letter 2011-4317/4374 (Mar. 5,
2012) (Galveston County, Texas), available 
at http://www.justice.gov/crt/about/vot/ 
sec_5/ltr/l_030512.php............................................... 21

DOJ Objection Letter 2012-3120 (Dec. 3, 2012) 
(Clinton, Mississippi), available at 
http://www.justice.gov/crt/about/vot/sec_5/ 
ltr/l_120312.php.........................................................22

http://www.justice.gov/crt/
http://www.justice.gov/crt/about/vot/sec_5/
http://www.justice.gov/crt/about/vot/sec_5/
http://www.justice
http://www.justice.gov/crt/about/vot/
http://www.justice.gov/crt/about/vot/sec_5/


IX

TABLE OF AUTHORITIES— Continued

Page(s)
DOJ, Section U of the Voting Rights Act, 

http://www.justice.gov/crt/about/vot/misc/ 
sec_4.php (last visited Jan. 31,2013)......................28

DOJ, Section 5 Objection Determinations, 
http://www.justice.gov/crt/about/vot/sec_5/ 
obj_activ.php (last visited Jan. 31, 2013)..................20

Katz, Ellen, et al., Documenting Discrimina­
tion in Voting, 39 U. Mich. J.L. Reform 643 
(2006)...........................................................................14

McCrary, Peyton, et al., The End of 
Preclearance As We Knew It, 11 Mich. J.
Race & L. 275 (2006)................................................. 21

National Commission on the Voting Rights 
Act, Protecting Minority Voters: The 
Voting Rights Act at Work 1982-2005 (Feb.
2006)............................................................................16

Pitts, Michael J., Let’s Not Call the Whole 
Thing Off Just Yet, 84 Neb. L. Rev. 605 
(2005).......................................................................... 30



INTEREST OF AMICI CURIAE1

Amici curiae are elected members of the United 
States House of Representatives and members of the 
Congressional Black Caucus (CBC), the Congressional 
Hispanic Caucus (CHC), or the Congressional Asian 
Pacific American Caucus (CAPAC).2 Amici collectively 
serve millions of Americans from communities whose 
experiences with racial discrimination in voting are the 
core concern of the Voting Rights Act (VRA).

1. Each of the three caucuses was established to 
provide representation and constituency services for 
communities that have experienced racial discrimina­
tion and political exclusion firsthand. The CBC was 
formed more than forty years ago to promote racial 
equality in the design and content of domestic and in­
ternational policies, programs, and services. The CBC 
has been at the forefront of issues affecting African 
Americans and has garnered international acclaim for 
advancing agendas aimed at protecting human rights 
and civil rights for all people. Today, the CBC is com­
prised of 42 Members of Congress.

The CHC was formed in 1976 with the mission of 
voicing and advancing, through the legislative process, 
issues affecting Hispanic Americans in the United 
States and the insular areas. The CHC actively ad­
dresses national issues that impact the Hispanic com­

1 Pursuant to Rule 37.3(a), letters of consent to the filing of 
this brief are on file with the Clerk of the Court. No counsel for a 
party authored this brief in whole or in part, and no person, other 
than amici curiae, their members, or their counsel made any mone­
tary contribution to the preparation or submission of this brief.

2
A complete list of amici is attached as an addendum to this

brief.



2

munity and serves as a forum for Hispanic Members of 
Congress to coalesce around a collective legislative 
agenda. Today, the CHC is comprised of 27 Members 
of Congress.

The CAP AC was founded in 1994 to enhance the 
ability of Members of Congress and their allies to rep­
resent the Asian American and Pacific Islander com­
munity’s concerns effectively in policy debates. Today, 
the CAP AC is comprised of 38 Members of Congress.

2. Amici—many of whom voted in favor of reau­
thorizing Section 5 of the VRA in 2006— write to offer 
their perspective on why this Court should affirm the 
constitutionality of one of the most important pieces of 
civil rights legislation in the nation’s history. Since its 
enactment in 1965, the Section 5 preclearance mecha­
nism of the VRA, 42 U.S.C. §§ 1973 et seq., has pre­
vented state and local jurisdictions from implementing 
thousands of discriminatory voting procedures and 
practices. Congress’s reauthorization of that provision 
in 2006 is a landmark accomplishment that serves the 
fundamental purpose of guaranteeing the right of all 
citizens to cast meaningful and unfettered votes and to 
be represented by candidates of their choice.

The extensive legislative record Congress compiled 
in reauthorizing Section 5 of the VRA revealed that ra­
cial discrimination remains an enduring problem for 
minority voters in the covered jurisdictions. Based on 
that record—among the most substantial ever 
amassed— Congress made the quintessential^ legisla­
tive judgment that “40 years has not been a sufficient 
amount of time to eliminate the vestiges of discrimina­
tion following nearly 100 years of disregard for the dic­
tates of the 15th amendment.” Fannie Lou Hamer, Ro­
sa Parks, Coretta Scott King, Cesar E. Chavez, Barba­



3

ra C. Jordan, William C. Velasquez, and Dr. Hector P. 
Garcia Voting Rights Act Reauthorization and 
Amendments Act of 2006, Pub. L. No. 109-246, § 2(b)(7), 
120 Stat. 577, 578 (VRARAA), as amended by Pub. L. 
No. 110-258, 122 Stat. 2428 (2008). Congress concluded 
that “without the continuation of the [VRA’s] protec­
tions” in the covered jurisdictions, “racial and language 
minority citizens will be deprived of the opportunity to 
exercise their right to vote, or will have their votes di­
luted, undermining the significant gains made by mi­
norities in the last 40 years.” Id. § 2(b)(9).

This Court should not second-guess those determi­
nations. Amici, who represent voters in both covered 
and non-covered jurisdictions, are uniquely positioned 
to attest that Section 5 remains an essential tool in the 
nation’s ongoing struggle to guarantee an equal right to 
vote regardless of race, and that Section 5’s work of 
remedying unconstitutional exclusion from the political 
process in certain jurisdictions is not yet done.

Amici acknowledge—indeed, celebrate—that the 
VRA has led to measurable progress since 1965 in com­
batting racial discrimination in voting. The increasing 
diversity of Congress—including amici themselves—is 
evidence of the VRA ’s effect. These gains, however, 
are incomplete and only recently won. Continued pro­
tection is critical to ensuring that the nation’s long his­
tory of backsliding and retrenchment in the area of vot­
ing rights is not repeated.

As this Court has recently noted, “racial discrimi­
nation and racially polarized voting are not ancient his­
tory.” Bartlett v. Strickland, 556 U.S. 1, 25 (2009). 
Amici thus have a profound interest in ensuring that 
Congress’s considered judgment with respect to the 
necessity of Section 5 is implemented. Amici urge this



4

Court to uphold the reauthorization of Section 5 under 
the existing coverage scope of Section 4(b) as a proper 
exercise of congressional power under the enforcement 
provisions of the Fourteenth and Fifteenth Amend­
ments. See U.S. Const, amend. XIV, § 5; U.S. Const, 
amend. XV, § 2.

INTRODUCTION AND SUMMARY OF ARGUMENT

Since 1965, Congress and five Presidents have act­
ed to create or preserve the VRA—the nation’s land­
mark commitment “to ensuring] that the right of all 
citizens to vote, including the right to register to vote 
and cast meaningful votes, is preserved and protected 
as guaranteed by the Constitution.” VRARAA § 2(a). 
And on four occasions, this Court has upheld the consti­
tutionality of the political branches’ informed judgment 
that the VRA and its preclearance requirement are 
necessary to safeguard that right. See Lopez v. Monte­
rey County, 525 U.S. 266, 282-285 (1999); City of Rome 
v. United States, 446 U.S. 156, 177-178 (1980); Georgia 
v. United States, 411 U.S. 526, 534-535 (1973); South 
Carolina v. Katzenbach, 383 U.S. 301,337 (1966).

In 2006, Congress again reauthorized the VRA, ex­
ercising the broad power granted to it by the Recon­
struction Amendments. Just as with prior reauthoriza­
tions, Congress acted in 2006 on the basis of a “sizable 
record.” Northwest Austin Mun. Util. Dist. No. One v. 
Holder, 557 U.S. 193, 205 (2009). Both courts below 
held that the record Congress compiled sufficiently 
demonstrated a continuing need for Section 5 that justi­
fied the continuing burden on covered jurisdictions. 
See Pet. App. 48a, 269a-270a.

The decisions below are correct. The massive legis­
lative record includes 21 hearings before the House and



5

Senate Judiciary Committees; the testimony of more 
than 90 witnesses—including state and federal officials, 
litigators, and scholars—both for and against reauthor­
ization; and 15,000 pages of supporting materials. That 
record leaves no doubt that “ ‘conduct transgressing the 
Fourteenth Amendment’s substantive provisions,” ’ 
Coleman v. Court of Appeals of Md., 132 S. Ct. 1327, 
1333 (2012), persists in covered jurisdictions. See H.R. 
Rep. No. 109-478, at 5 (2006); S. Rep. No. 109-295, at 2- 
4, 10 (2006). Congress found substantial evidence of 
voting discrimination in these jurisdictions, including 
intentional discrimination, as documented by continued 
disparities in registration and turnout; low levels of mi­
nority elected officials; the number of Section 5 en­
forcement actions since 1982; the volume of Section 2 
litigation; and evidence of racially polarized voting. 
Congress also determined that the VRA’s bailout and 
bail-in mechanisms would work hand-in-hand to ensure 
that Section 5 remains targeted only where it is needed.

Developments since 2006 have proven that Con­
gress’s judgments were well-founded. The number of 
Section 5 objections since the reauthorization of the 
VRA, by itself, is powerful evidence of the continuing 
need for Section 5 to deter core violations of the Four­
teenth and Fifteenth Amendments in the covered ju­
risdictions. Indeed, Section 5 recently blocked a bur­
densome Texas photo ID law that would have had a 
retrogressive effect on minority voters’ access to the 
ballot, and it led South Carolina officials to reinterpret 
a photo ID law to ameliorate its discriminatory effect. 
Recent litigation involving Texas redistricting further 
validates Congress’s concern that intentional racial dis­
crimination in voting continues to pose a concrete 
threat to the rights of minority voters. Moreover, the 
post-2006 record shows that Congress rightly deter­



6

mined that the VRA’s bailout and bail-in mechanisms 
would ensure that Section 5 remains geographically tai­
lored.

Finally, Congress’s decision in 2006 that Section 2 
remains an inadequate remedy in covered jurisdic­
tions—a fact-based, predictive judgment that deserves 
special judicial deference—was well-founded. In reach­
ing its conclusion, Congress credited evidence that Sec­
tion 2 claims are ineffective substitutes for Section 5 
because they shift the burden of proof to minority vot­
ers, occur after the fact, and require complex litigation 
that is costly and time-consuming. That, together with 
the magnitude and persistence of discrimination in cov­
ered jurisdictions, provided convincing support for 
Congress’s judgment that case-by-case litigation would 
be ineffective to protect the rights of minority voters in 
those jurisdictions. H.R. Rep. No. 109-478, at 57.

ARGUMENT

I. A Deferential Standard Governs Judicial Re­
view Of Congress’s Decision To Reauthorize 
Section 5 In The Covered Jurisdictions

Congress is “a coequal branch of government 
whose Members take the same oath ... to uphold the 
Constitution” as the Justices of this Court. Rostker v. 
Goldberg, 453 U.S. 57, 64 (1981). In part for that rea­
son, when this Court is “called upon to judge the consti­
tutionality of an Act of Congress—‘the gravest and 
most delicate duty that [it] is called upon to perform’— 
the Court accords ‘great weight to the decisions of 
Congress.’” Id. (citations omitted); accord Northwest 
Austin, 557 U.S. at 204-205.

In reviewing any legislation, this Court defers to 
Congress’s fact-finding, and it “accord[s] substantial



7

deference” to Congress’s “predictive judgments.” 
Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 665 
(1994) (plurality opinion). That deference is accorded 
not simply because Congress is a co-equal branch of 
government, but also because “ [a]s an institution, ... 
Congress is far better equipped than the judiciary to 
‘amass and evaluate the vast amounts of data’ bearing 
upon a[] ... complex and dynamic [issue].” Id. at 665- 
666; see Fullilove v. Klutznick, 448 U.S. 448, 502-503 
(1980) (Powell, J., concurring) (noting “special attrib­
ute^]” of Congress as a fact-finding body). Therefore, 
in reviewing Congress’s findings, the proper inquiry is 
not whether this Court would reach the same decision, 
but whether there is sufficient evidence showing Con­
gress’s decision was reasonable. Turner Broad., 512 
U.S. at 666. Although this Court must “exercise inde­
pendent judgment when [constitutional] rights are im­
plicated,” that “is not a license [for the Court] to re­
weigh the evidence de novo, or to replace Congress’ 
factual predictions” with its own. Id.

In the context of the VRA, the necessity of defer­
ence to Congress’s judgments is especially strong for 
two reasons. First, members of Congress are intimate­
ly involved with and knowledgeable about the electoral 
process, voting problems, and the operation of the 
VRA. Members of Congress bring to bear local 
knowledge of the effects of racial discrimination on 
their district’s electoral systems and are well- 
positioned to assess what measures are necessary to 
ensure the right of all citizens to vote is guaranteed.

Second, in reauthorizing Section 5, Congress exer­
cised the unique constitutional authority textually 
committed to it by the Reconstruction Amendments. 
The Amendments’ enforcement provisions embody ‘“a 
positive grant of legislative power’ to Congress” that



8

this Court has consistently described in “broad terms.” 
City of Boerne v. Flores, 521 U.S. 507, 517 (1997); 
Northwest Austin, 557 U.S. at 205. Congress is accord­
ingly “entitled to much deference” in ‘“determin[ing] 
whether and what legislation is needed to secure 
th[ose] guarantees.’” City of Boerne, 521 U.S. at 536 
(quoting Katzenbach v. Morgan, 384 U.S. 641, 651 
(1966)). Indeed, in reauthorizing the VRA, Congress 
was acting within the heartland of the Reconstruction 
Amendments: The VRA combats an evil lying at the
crossroads of the ‘“immediately suspect’” classification 
of race, Johnson v. California, 543 U.S. 499, 509 (2005), 
and the “fundamental political right” to vote, Yick Wo 
v. Hopkins, 118 U.S. 356, 370 (1886). See Tennessee v. 
Lane, 541 U.S. 509, 561-562 (2004) (Scalia, J., dissent­
ing). Congress’s considered judgment in favor of reau­
thorizing Section 5 is therefore entitled to great re­
spect.

n. In 2006, Congress Made A Considered And Well-
Supported Judgment That Section 5 Remains
Necessary To Protect Minority Voting Rights

In 2006, Congress determined that the record doc­
umenting the continuing need for Section 5 in the cov­
ered jurisdictions “resemble[d] the evidence before [it] 
in 1965 and the evidence that was present again in 1970, 
1975, 1982, and 1992.” H.R. Rep. No. 109-478, at 6; see 
id. at 11-12. This Court in each instance approved the 
sufficiency of those records—both directly in Katzen­
bach and City of Rome, and indirectly as examples of 
how to “document^ a marked pattern of unconstitu­
tional action,” Board ofTrs. of the Univ. of Ala. v. Gar­
rett, 531 U.S. 356, 373 (2001). The expansive record be­
fore Congress in 2006 made clear that our nation’s 
struggle to overcome a century of state-sanctioned vot­



9

ing discrimination in the covered jurisdictions was not 
yet complete and thus that there remained a “current 
need[]” for Section 5, Northwest Austin, 557 U.S. at 
203.

A. The Record Before Congress Demonstrated 
The Continuing Need For Section 5

In exercising its authority under the Reconstruc­
tion Amendments to redress the “evil[]” of race dis­
crimination in voting, “ Congress ... may avail itself of 
information from any probative source.” South Caroli­
na, 383 U.S. at 330. In 2006, Congress was not writing 
on a blank slate. Instead, operating against a backdrop 
of several reauthorizations, each upheld by this Court 
against a constitutional challenge, Congress looked to 
the same categories of evidence this Court approved in 
South Carolina and City of Rome—namely, disparities 
in turnout and registration, disproportionately low 
numbers of minority elected officials, and the nature 
and number of Section 5 objections in the covered ju­
risdictions. In each of these categories, and in several 
others, Congress confronted probative, unassailable ev­
idence of a continuing need for Section 5.

1. Turnout and registration

As it had in prior reauthorizations of the VRA, 
Congress found that, despite progress, “ [significant 
disparities] persisted ... in at least several of the cov­
ered jurisdictions” with respect to registration and 
turnout. City of Rome, 446 U.S. at 180. Congress 
learned, for example, that in Texas in 2004 white voter 
registration exceeded Hispanic registration by 20 per­
centage points. S. Rep. No. 109-295, at 11. In Virginia, 
white voter registration exceeded black voter registra­



10

tion by 11 percentage points, and white turnout ex­
ceeded black turnout by 13 percentage points. Id.

In fact, these disparities were even more pro­
nounced than Congress realized. The figures before 
Congress included Hispanics in the registration and 
turnout rates for whites, “reducing the true disparity 
between black and white voter registration and turnout 
(as well as [masking] the disparity between Hispanic 
and white voter registration and turnout).” Pet. App. 
200a. When the statistics are adjusted, black registra­
tion rates in 2004 trail those of non-Hispanic whites in 
all but one covered state. Id. 201a; see id. 200a-203a.

Congress also reviewed testimony and other evi­
dence demonstrating that “there remains an enormous 
gap in political participation” for language minority cit­
izens in many of the covered jurisdictions. Voting 
Rights Act: Evidence of Continued Need, Hearing Be­
fore the Subcomm. on the Constitution of the H. Comm, 
on the Judiciary, 109th Cong. 13 (2006); see, e.g., id. 68- 
69 (Florida); id. 309 (Texas); id. 1313 (Alaska); id. 1379 
(Arizona). Together, Congress reasonably concluded 
that these disparities were comparable to those this 
Court found sufficient in City of Rome when it upheld a 
past reauthorization of Section 5. 446 U.S. at 180; Pet. 
App. 199a (citing S. Rep. No. 94-295, at 779 (1975)).

2. Minority elected officials

In deciding whether to reauthorize Section 5, Con­
gress also considered evidence of the disproportionate­
ly low numbers of minority elected officials in covered 
jurisdictions. As in City of Rome, Congress recognized 
that “ ‘undeniable’” progress had been made, see 446 
U.S. at 181, but it found that troubling disparities per­
sisted.



11

Congress found, for example, that in Alabama, 
Georgia, Louisiana, Mississippi, South Carolina, and 
North Carolina, African Americans comprised 35% of 
the population, but only 20.7% of the state legislators. 
H.R. Rep. No. 109-478, at 33. Latino and Asian- 
American elected officials similarly “failed to keep pace 
with [the relevant] population growth,” id. at 33, 
demonstrating on the whole that the “number [of mi­
nority elected officials] ... in the state legislatures” 
again “fell ... short of being representative of the num­
ber of [minority voters] residing in the covered juris­
dictions,” City o f Rome, 446 U.S. at 180-181.

Moreover, as of 2000, only 35 African Americans 
held a statewide office in the covered jurisdictions, and 
some of these officials had initially been appointed, ra­
ther than elected, to those positions. H.R. Rep. No. 
109-478, at 33. In three of the nine covered states— 
Mississippi, Louisiana, and South Carolina—no African 
American had been elected to statewide office despite 
substantial African-American voting populations. Id. 
(quoting 2005 statement from Governor of South Caro­
lina indicating that he “did not expect to see such an 
election in the foreseeable future”); see City of Rome, 
446 U.S. at 180 (noting that minority elected officials 
“held only relatively minor positions, none held 
statewide office”). And language minority candidates 
fared no better, “rarely garner[ing] the support of 
white voters, resulting in a disparity [in office- 
holding].” Id. at 34.3 When confronted with similar ev­

2
Congress found that racially polarized voting in the covered 

jurisdictions “demonstrates that [minority voters] remain political­
ly vulnerable” and undermined their ability to elect candidates of 
their choice. See VRARAA § 2(b)(3); H.R. Rep. No. 109-478, at 34. 
That finding is relevant because, as this Court has recognized, ra­
cially polarized voting provides facially neutral voting changes



12

idence in City of Rome, this Court found that an exten­
sion of Section 5 was warranted. See 446 U.S. at 181.

3. Section 5 objections

Finally, in 2006, Congress carefully considered Sec­
tion 5 objections, a category of evidence that ‘“clearly 
bespeak[s] the continuing need for this preclearance 
mechanism.’” City of Rome, 446 U.S. at 181; VRARAA 
§ 2(b)(4)(A). From 1982 to 2006, the Attorney General 
interposed more than 700 objections—more than were 
lodged between 1965 and 1982. H.R. Rep. No. 109-478, 
at 21-22, 36; see S. Rep. No. 109-295, at 13; Evidence of 
Continued Need 177-178 (noting a similar pattern for 
judicial denials of preclearance). Each fully covered 
state drew at least two statewide objections, with most 
fully covered states drawing many more. See Evidence 
of Continued Need 260. Notably, a single objection 
may encompass more than one voting change, and a 
single voting change may affect thousands of voters. 
Between 2000 and 2006, objections interposed by the 
Attorney General affected some 660,000 minority vot­
ers. The Continuing Need for Section 5 Pre-clearance, 
Hearing Before the S. Comm, on the Judiciary, 109th 
Cong. 58 (2006).

Petitioner (Br. 29-30) discounts the significance of 
Section 5 objections, arguing that “the objection rate 
has been declining steadily.” But the decline in the rate 
of objections is “a product of submissions becoming ...

with their retrogressive force. See City of Rome, 446 U.S. at 183- 
184; Rogers v. Lodge, 458 U.S. 613, 623 (1982). Congress’s deter­
mination that racially polarized voting persists—and was increas­
ing, see H.R. Rep. No. 109-295, at 34-35—in the covered jurisdic­
tions thus supported its judgment that minority voters remain 
“vulnerable” to discriminatory voting schemes, VRARAA 
§ 2(b)(3).



13

more frequent.” Continuing Need 58. In any event, 
any decline in the “rate” of objections in no way dimin­
ishes the significance this Court—and Congress—has 
attributed to the “number and nature” of Section 5 ob­
jections, City of Rome, 446 U.S. at 181, which remain 
significant and serious.

Of the Attorney General objections interposed be­
tween 1980 and 2000, nearly two-thirds related to vot­
ing changes enacted with racial animus. See Voting 
Rights Act: Section 5 of the Act—Preclearance Stand­
ards, Hearing Before the Subcomm. on the Constitu­
tion of the H. Comm, on the Judiciary, 109th Cong. 180 
tbl.2 (2005) (McCrary Study). The record Congress ex­
amined was replete with such examples. See S. Rep. 
No. 109-295, at 14-15; Pet. App. 212a-220a (reciting rec­
ord evidence); Northwest Austin Mun. Util. Dist. No. 
One v. Mukasey, 573 F. Supp. 2d 221, 289-301 (D.D.C. 
2008) (same). To recount just a few: Objections pre­
vented the Mayor and Board of Aldermen in 
Kilmichael, Mississippi from cancelling an election after 
Census data revealed that African Americans had be­
come a majority in the town, and an unprecedented 
number of African Americans were running for office, 
H.R. Rep. No. 109-478, at 36-37; thwarted threats by 
the Waller County, Texas district attorney to prosecute 
students from Prairie View A&M, a local historically 
black university, for illegal voting if they voted in the 
2004 election for County Commissioners’ Court and 
frustrated the county’s subsequent attempt to limit 
early voting to reduce student participation in the same 
election, Evidence of Continued Need 185-186; and 
blocked a majority vote requirement for a city council 
election in Freeport, Texas after the first Latino- 
preferred candidate was elected, Voting Rights Act: 
Section 5—History, Scope, and Purpose, Hearing Be­



14

fore the Subcomm. on the Constitution of the H. Comm, 
on the Judiciary, 109th Cong. 2291-2292, 2528-2530 
(2005).

4. Other categories of evidence

In addition to the categories of evidence on which 
this Court relied in City of Rome, Congress reviewed 
other probative evidence of discrimination against mi­
nority voters. Congress found, for example, that 
“ [evidence of continued discrimination includes ... the 
continued filing of section 2 cases ... in covered jurisdic­
tions.” VRARAA § 2(b)(4); see H.R. Rep. No. 109-478, 
at 52-53. More than 600 successful Section 2 cases were 
filed in covered jurisdictions between 1982 and 2005, 
affecting 825 counties. Evidence of Continued Need 
205-208, 251. Among successful Section 2 suits that 
ended in a published decision, more than half involved a 
covered jurisdiction, even though covered jurisdictions 
account for less than a quarter of the country’s popula­
tion. See Pet. App. 49a; Katz et al., Documenting Dis­
crimination in Voting, 39 U. Mich. J.L. Reform 643, 
655-656 (2006). And a significant number of successful 
Section 2 suits involved intentional discrimination. See 
Pet. App. 232a.

Congress also found “indicia of discrimination” in 
the ongoing need for federal observers to monitor and 
report “harassment and intimidation inside polling loca­
tions” in covered jurisdictions. H.R. Rep. No. 109-478, 
at 44; VRARAA § 2(b)(5). Two-thirds of observers dis­
patched between 1982 and 2005 on the basis of merito­
rious threats of misconduct were dispatched to covered 
jurisdictions. H.R. Rep. No. 109-478, at 44. Congress 
learned, for example, that observers had been “recently



15

assigned to ... Georgia, Alabama, and Texas, to protect 
Latino and Asian American voters.” Id. at 45.4

Furthermore, Congress logically concluded that 
any assessment of the continuing need for Section 5 
must account for those discriminatory voting changes 
“that have never gone forward as a result of Section 5.” 
H.R. Rep. No. 109-478, at 24; S. Rep. No. 109-295, at 11 
(“without the Voting Rights Act’s deterrent effect,” 
evidence of discrimination in the covered jurisdictions 
“might be considerably worse”). This determination 
was not guesswork, but was informed by expert testi­
mony about and specific examples of Section 5’s deter­
rent effect. For example, when Georgia redrew its 
congressional districts in 2005, it began by adopting 
resolutions that required compliance with Section 5 and 
proceeded to draw non-retrogressive plans that main­
tained the black voting age population in majority black 
districts. H.R. Rep. No. 109-478, at 24. As Congress 
explained, ‘“officials in covered jurisdictions ... under­
stand that submitting discriminatory changes is a 
waste of taxpayer time and money and interferes with

4 Notwithstanding petitioner’s effort (Br. 31) to cast observ­
ers and the events they witness as mere hypotheticals or conjec­
ture, the record before Congress demonstrated that once dis­
patched, federal observers witnessed harassment and racial ani­
mus. One particularly disturbing incident occurred in Alabama, 
where observers witnessed a white poll worker asking a black vot­
er whether he “want[edj to vote for white or niggers,” and re­
marking “niggers don’t have principle enough to vote and they 
shouldn’t be allowed.” Voting Rights Act: Sections 6 and 8— The 
Federal Examiner and Observer Program, Hearing before the 
Subcomm. on the Constitution o f the H. Comm, on the Judiciary, 
109th Cong. 30 (2005). The legislative record documented addi­
tional incidents in covered jurisdictions affecting Hispanic and 
Asian-American voters. See id. 34-35; Pet. App. 242a-245a (citing 
examples).



16

their own timetables[] because the chances are good 
that an objection will result.” ’ Id. (quoting National 
Commission on the Voting Rights Act, Protecting Mi­
nority Voters: The Voting Rights Act at Work 1982- 
2005, at 57 (Feb. 2006)); see Pet. App. 252a-255a.

In addition, Congress observed that between 1982 
and 2003 covered jurisdictions withdrew more than 205 
Section 5 submissions after receiving a request for 
more information (MIR) from the Attorney General—a 
reaction Congress reasonably determined is “illustra­
tive of a jurisdiction’s motives.” H.R. Rep. No. 109-478, 
at 40, 41; see 28 C.F.R. § 51.37; Evidence of Continued 
Need 124 (“a withdrawal suggests ... officials in the ju­
risdiction concluded that the change would [occasion an 
objection]”). Combining withdrawals with the number 
of material alterations made to proposed voting chang­
es after receipt of an MIR, Congress learned that MIRs 
deterred more than 800 potentially discriminatory vot­
ing changes. H.R. Rep. No. 109-478, at 40; Continuing 
Need for Section 203’s Provisions for Limited English 
Proficient Voters, Hearing Before the S. Comm, on the 
Judiciary, 109th Cong. 213, 223 (2006).

B. Congress Properly Determined That Bailout 
And Bail-in Mechanisms Would Ensure That 
Section 5 Applied Only To Jurisdictions 
Where It Was Needed

In addition to the record demonstrating the contin­
uing need for a preclearance remedy in the covered ju­
risdictions, Congress took into account the bailout and 
bail-in mechanisms in ensuring that the VRA would 
remain appropriately targeted. Although petitioner



17

suggests (Br. 54) that bailout is a minor provision of the 
VRA, in 2006 Congress understood things differently.5

Under the statutory bailout mechanism, which 
Congress expanded in 1982, any covered jurisdiction 
may terminate its Section 5 coverage by demonstrating 
a 10-year record of nondiscriminatory practices and a 
current effort to eliminate intimidation and harassment 
of voters. See 42 U.S.C. § 1973b(a). This Court has ob­
served the importance of the bailout procedure to the 
constitutionality of Section 5. See City of Boeme, 521 
U.S. at 533 (availability of bailout “reduce[s] the possi­
bility of overbreadth” and helps “ensure Congress’ 
means are proportionate to [its] ends”).

In 2006, Congress again determined that the 
bailout mechanism helped to ensure geographic tailor­
ing of Section 5. See H.R. Rep. No. 109-478, at 25. 
Congress considered testimony from legal scholars, 
voting rights practitioners, and DOJ officials to this ef­
fect. See, e.g., Voting Rights Act: An Examination of 
the Scope and Criteria for Coverage under the Special 
Provisions of the Act, Hearing Before the Subcomm. on 
the Constitution of the H. Comm, on the Judiciary, 
109th Cong. (2005). Congress also learned that be­
tween August 1984—when the 1982 amendments took 
effect—and the 2006 reauthorization, 10 jurisdictions 
successfully bailed out. Evidence of Continued Need 
2677, 2691. No jurisdiction seeking a bailout was de­
nied one. Id. at 2683. Based on this evidence, Congress 
reasonably concluded that: “ (1) covered status is nei­

5 By contrast, where the record before Congress required it 
to amend the Act, it did not hesitate to ensure that the VRA im­
plemented only “relevant and ... effective remedies].” H.R. Rep. 
No. 109-478, at 61; see id. at 61-62 (allowing the federal examiner 
program to expire); VRARAA § 3(c).



18

ther permanent nor over-broad; and (2) covered status 
has been and continues to be within the control of the 
jurisdiction such that those jurisdictions that have a 
genuinely clean record and want to terminate coverage 
have the ability to do so.” H.R. Rep. No. 109-478, at 25. 
“Bailout ... has proven to be achievable [by] those ju­
risdictions that can demonstrate an end to their dis­
criminatory histories.” Id. at 61.

While the bailout process guards against over­
inclusiveness, the bail-in procedure guards against un- 
der-inclusiveness. Under the VRA, federal courts may 
place states and political subdivisions under the pre­
clearance requirement upon a finding of a Fourteenth 
or Fifteenth Amendment violation. See 42 U.S.C. 
§ 1973a(c). Congress had before it evidence that this 
provision, too, was working: From 1982 to 2006, courts 
bailed-in two states (Arkansas and New Mexico), three 
counties (including Los Angeles County), and one city 
(Chattanooga, Tennessee). See Evidence of Continued 
Need 154; U.S. Br. App. A.

* * *

In short, the record before Congress in 2006 amply 
supported Congress’s judgment that “ [fjorty years” of 
Section 5 in the covered jurisdictions had been “an in­
sufficient amount of time to address the century during 
which racial minorities were denied the full rights of 
citizenship.” H.R. Rep. No. 109-478, at 56; VRARAA 
§ 2(b)(7), (9). Against a voluminous record of pervasive 
discrimination and a tragic history of backsliding and 
retrenchment, Congress made an informed judgment 
that Section 5 reauthorization was “appropriate legisla­
tion” to protect the fundamental rights guaranteed by 
the Reconstruction Amendments.



19

III. Developments Since 2006 Confirm The Reasona­
bleness Of Congress’s Judgment That There Is A 
Continuing Need For Section 5 In The Covered 
Jurisdictions

Congress reauthorized Section 5 in 2006 based on a 
robust record of discrimination in the covered jurisdic­
tions. Congress’s conclusion—that the work of this 
monumental civil rights legislation was not done—was 
compelled by historical facts and reflected reasonable 
predictive judgments. Indeed, developments since 
2006 confirm the wisdom of Congress’s determinations 
that “ [m]uch remains to be done to ensure that citizens 
of all races have equal opportunity to share and partici­
pate in our democratic processes and traditions,” 
Strickland, 556 U.S. at 25, and that Section 5 remains 
critical to achieving those goals.

A. The Court May Consider Post-Enactment Ev­
idence

The court of appeals correctly held that “post­
enactment” evidence may bear on whether Congress 
properly exercised its authority under the Reconstruc­
tion Amendments in reauthorizing Section 5. Pet. App. 
54a. In Lane, for example, this Court concluded, in part 
based on post-enactment evidence, that Title II of the 
Americans with Disabilities Act was a valid exercise of 
Congress’s enforcement power under the Fourteenth 
Amendment. 541 U.S. at 524-525 & nn.6-8, 11, 13-14. 
Indeed, as the court of appeals noted, this Court relied 
in Lane on “articles and cases published ten or more 
years after the Americans with Disabilities Act was 
enacted.” Pet. App. 54a; see Nevada Dep’t of Human 
Res. v. Hibbs, 538 U.S. 721, 733-734 & nn.6-9 (2003) (cit­
ing discriminatory state laws from 1997-2003 in reject­
ing constitutional challenge to FMLA, enacted in 1993);



20

see also Gonzalez v. Raich, 545 U.S. 1, 21 & n.31 (2005) 
(considering post-enactment evidence in reviewing ex­
ercise of Congress’s Commerce Clause authority).

Consideration of post-enactment evidence is espe­
cially relevant here in assessing the reasonableness of 
Congress’s predictive judgments: “Subsequent events 
have borne [them] out[.]” Wold Commons, Inc. v. 
FCC, 735 F.2d 1465, 1478 n.29 (D.C. Cir. 1984) (Gins- 
burg, R.B., J.) (considering after-the-fact evidence in 
assessing challenged agency decision).

B. Post-Enactment Objections Confirm The 
Continuing Need For Section 5

Objections interposed through administrative and 
judicial preclearance are, of course, probative evidence 
of the need for Section 5. See City of Rome, 446 U.S. at 
181; Pet. App. 206a. And the record of objections since 
the 2006 reauthorization strongly supports Congress’s 
judgment that Section 5 remains necessary to protect 
minority voting rights.

The sheer number of objections is telling. By ami­
ci’s count, covered jurisdictions have proposed 42 vot­
ing changes since 2006 that have occasioned objections. 
Of those, the Attorney General blocked 37 and the Dis­
trict Court for the District of Columbia prevented five 
from taking effect. Fourteen objections reflected evi­
dence of a discriminatory purpose, as did two of the five 
changes blocked by the district court.6

6 This analysis is based on reported Attorney General ob­
jections since 2006, see DOJ, Section 5 Objection Determina­
tions, http://www.justice.gov/crt/about/vot/sec_5/obj_activ.php
(last visited Jan. 31, 2013), and follows the methodology of an 
academic study of Section 5 objection letters by a historian of 
the Civil Rights Division, which was considered by Congress.

http://www.justice.gov/crt/about/vot/sec_5/obj_activ.php


21

Amici offer only a few examples of voting changes 
blocked by the Attorney General on the basis of pur­
poseful discrimination. Since 2006, Section 5 has pre­
vented the Board of Registrars of Randolph County, 
Georgia from reassigning (in contravention of two court 
decisions) a black county official from the majority- 
black district he had long represented to a majority- 
white district, where the County could not show that 
the change did not have the “purpose ... of denying or 
abridging the right to vote on account of race.” DOJ 
Objection Letter 2006-3856, at 3 (Sept. 12, 2006). It has 
blocked a redistricting plan in Galveston County, Texas 
where, on the day before the final vote on the plan, the 
county judge and several county commissioners redrew 
the district of the sole minority commissioner without 
informing him, resulting in a “loss of the ability of mi­
nority voters to elect a candidate of choice.” DOJ Ob­
jection Letter 2011-4317/4374, at 3 (Mar. 5, 2012). Sec­
tion 5 also prevented the implementation of Gonzales 
County, Texas’s inadequate and retrogressive plan for 
assigning bilingual poll workers, noting that, in addition 
to the county’s history of refusing to provide bilingual 
election materials and turning away bilingual citizens

See Preclearance Standards 126-130, 180 tbl.2; see also McCrary 
et al., The End o f Preclearance As We Knew It, 11 Mich. J. Race & 
L. 275 (2006). Objections were coded as involving discriminatory 
purpose where “the letter cited at least some specific evidence of 
the sort set forth by the Supreme Court in Village o f Arlington 
Heights v. Metropolitan Housing Corporation [429 U.S. 252 
(1977)].” Preclearance Standards 129. Those factors include the 
impact on minority groups, the historical background of the action, 
the sequence of events leading up to the action, the legislative or 
administrative history regarding the action, departures from nor­
mal procedures, and evidence that the decision-maker ignored fac­
tors it had otherwise considered important or controlling in similar 
decisions. See Arlington Heights, 429 U.S. at 265-266.



22

who volunteered as poll workers, “ [c]ounty officials 
have openly expressed hostility toward complying with 
the [ V R A ] D O J  Objection Letter 2009-3078, at 5 
(Mar. 12, 2010). And it has blocked a redistricting plan 
for Clinton, Mississippi that “unnecessarily frag­
ment) ed|” black minority populations and was rushed 
through to avoid consideration of an alternative plan by 
the NAACP that would have allowed black voters the 
ability to elect a candidate of choice. DOJ Objection 
Letter 2012-3120, at 2 (Dec. 3,2012).

Although the significant number of Attorney Gen­
eral objections and the intentionally discriminatory na­
ture of many of the blocked changes are compelling ev­
idence of continuing need for a prophylactic remedy, 
two objections—pertaining to photo ID laws in Texas 
and South Carolina—warrant further discussion. 
These cases illustrate Section 5’s central role in pre­
venting and deterring discriminatory electoral changes 
and highlight that preclearance continues to block not 
only tactics that undermine the strength of minority 
votes, but also laws that block minority ballot access.

We begin with Texas. In 2011, Texas passed one of 
the “most stringent” voter ID laws in the nation. Texas 
v. Holder, 2012 WL 3743676, at *33 (D.D.C. Aug. 30, 
2012). The law would have required all voters to have 
one of five forms of photo ID and barred the use of non- 
photographic IDs or voter registration cards (permissi­
ble under preexisting state law). See id. at *1. After 
carefully studying the law and calling for additional in­
formation from the State, the Attorney General denied 
preclearance. See DOJ Objection Letter 2011-2775, at 3 
(Mar. 12. 2012) (noting that “a Hispanic registered vot­
er is at least 46.5 percent, and potentially 120.0 percent, 
more likely than a non-Hispanic registered voter to 
lack this identification” and that the State had provided



23

“no data” on African-American or Asian registered 
voters).

Texas also sought judicial preclearance before the 
District Court for the District of Columbia. After a 
week-long trial, the three-judge court declined pre­
clearance, concluding that the law, if implemented, 
“would in fact have a retrogressive effect on Hispanic 
and African American voters.” Texas, 2012 WL 
3743676, at *26. That finding rested on “three basic 
facts: (1) a substantial subgroup of Texas voters, many 
of whom are African American or Hispanic, lack photo 
ID; (2) the burdens associated with obtaining ID will 
weigh most heavily on the poor; and (3) racial minori­
ties in Texas are disproportionately likely to live in 
poverty.” Id. The court concluded that “many Hispan- 
ics and African Americans who voted in the last elec­
tion will, because of the burdens imposed by [the new 
law], likely be unable to vote in the next election.” Id. 
at *29.

Although neither the Attorney General nor the dis­
trict court needed to decide whether the law was en­
acted with a discriminatory purpose—because the dis­
criminatory effect was palpable, see DOJ Objection 
Letter 2011-2775, at 2-3; Texas, 2012 WL 3743676, at 
*32—the example nonetheless underscores that Section 
5 remains vital to preventing changes in voting laws 
that suppress minority turnout.7 It also highlights the 
substantial risk of backsliding absent Section 5.

7 Had the court reached the purpose prong of Section 5, there 
was ample evidence demonstrating that the law was enacted with 
discriminatory intent. In addition to the “strict, unforgiving bur­
dens” the law would impose on minorities, the court stated that 
the legislature “ignor[edj warnings that [the law] would disenfran­
chise minorities and the poor” and tabled or defeated amendments



24

The South Carolina case illustrates an equally es­
sential attribute of continued Section 5 enforcement. In 
that case, the Attorney General objected to a South 
Carolina law imposing new photo ID requirements be­
cause “the state’s data demonstrate that non-white 
voters are both significantly burdened by [the photo ID 
requirement] in absolute terms, and also disproportion­
ately unlikely to possess the most common types of 
photo identification ... that would be necessary for in- 
person voting under the proposed law.” DOJ Objection 
Letter 2011-2495, at 3 (Dec. 23,2011).

The District Court for the District of Columbia 
later precleared the law, but only after South Carolina 
officials offered an interpretation of the law that signif­
icantly ameliorated the burden on minority voters. See 
South Carolina v. United States, 2012 WL 4814094 
(D.D.C. Oct. 10, 2012). As the litigation unfolded, South 
Carolina officials expansively construed the law’s “rea­
sonable impediment” provision to “allow[] registered 
voters with non-photo voter registration cards to vote 
without photo IDs,” so long as the voters took minor 
administrative steps at the polling place. Id. at *5. Be­
cause that interpretation would “deny no voters the 
ability to vote and have their votes counted,” id., the 
court was able to determine that the law lacked retro­
gressive effect, id. at *12. The court took pains to em­
phasize, however, that the State’s “extremely broad 
interpretation” was “central to [its] resolution of the

to alleviate these burdens. Texas, 2012 WL 3743676, at *33. 
Moreover, DOJ and intervenors presented substantial evidence of 
discriminatory intent. See Attorney General’s Proposed Findings 
of Fact 24-40, 58-71, Dkt. No. 223, Texas v. Holder, No. 12-cv-128 
(D.D.C. June 25, 2012); Def.-Intervenors’ Proposed Supplemental 
Findings of Fact 28-40, Dkt. No. 241, Texas v. Holder, No. 12-cv- 
128 (D.D.C. June 27,2012).



25

case,” id. at *6, and cautioned that “ [i]f South Carolina 
were to alter its interpretation of the reasonable im­
pediment provision ... the State would have to obtain 
pre-clearance ... before applying that new interpreta­
tion,” id. at *19.

Although South Carolina’s law was ultimately pre­
cleared, the example illustrates the “continuing utility” 
of Section 5. South Carolina, 2012 WL 4814094 at *21- 
22 (Bates, J., concurring) (“ [0]ne cannot doubt the vi­
tal function that Section 5 of the Voting Rights Act 
has played here.” ). Absent the preclearance process, 
South Carolina almost certainly would have imple­
mented a law with a substantial—and unnecessary— 
retrogressive effect.

C. Post-2006 Litigation Over Texas’s Redistrict­
ing Underscores The Ongoing Importance Of 
The Section 5 Preclearance Process

The ongoing Texas redistricting litigation also 
speaks to the wisdom of Congress’s predictive judg­
ment that intentional voting discrimination in covered 
jurisdictions persists and that Section 5 plays a central 
role in preventing it.

In 2011, after experiencing a surge in population 
growth (two-thirds of which occurred among Hispan- 
ics), Texas redrew and sought judicial preclearance of 
its redistricting plans for the U.S. House of Represent­
atives, the Texas House of Representatives, and the 
Texas Senate. See Texas v. United States, 2012 WL 
3671924, at *1, *17 (D.D.C. Aug. 28, 2012), jurisdiction­
al statement filed, No. 12-496 (U.S. Oct. 19, 2012). Fol­
lowing an eight-day trial and after review of a “volumi­
nous” record, the three-judge court, in an opinion by 
Judge Griffith, unanimously denied preclearance for all 
three plans. Id. at *2. Importantly, the court detailed



26

substantial circumstantial evidence of intentional race- 
based discrimination with respect to each of the plans.

The most damning evidence of intentional discrimi­
nation, however, related to the U.S. congressional dis­
tricts. On that score, the court made specific findings of 
“discriminatory purpose.” Texas, 2012 WL 3671924, at 
*18. The court, for example, credited evidence that 
substantial “ ‘surgery’” was performed on each of the 
state’s three districts where blacks had an ability to 
elect a candidate of their choice even though the dis­
tricts were already of ideal size. Id. at *19. The court 
cited “unchallenged evidence” that the districts repre­
sented by the only three black members of Texas’s con­
gressional delegation had both the key economic en­
gines of their districts (e.g., convention centers, sports 
arenas, and universities) and the representative’s dis­
trict offices moved into other districts. Id. at *19-20. 
Map-drawers also removed the district office and eco­
nomic engines from a Hispanic ability district. Id. at 
*19.

“No such surgery,” however, was performed on the 
districts of Anglo incumbents. Texas, 2012 WL 
3671924, at *20. “ In fact, every Anglo member of Con­
gress retained his or her district office.” Id. The court 
concluded that these changes, even apart from the oth­
er Arlington Heights factors, were no mere coincidence 8

8 See id. at *23-26 (evidence of intentional cracking—i.e., 
spreading out minority voters among many districts in order to 
deny them a voting bloc anywhere—in the State Senate plan); id. 
at *36, *37 (not reaching intent issue with respect to State House 
plan, but detailing “record evidence that causes concern,” includ­
ing a pattern of swapping precincts with high Hispanic turnout for 
those with low turnout, suggesting “a deliberate, race-conscious 
method to manipulate not simply the Democratic vote, but more 
specifically the Hispanic vote”).



27

and reflected a pattern ‘“unexplainable on grounds oth­
er than race.’” Id. (quoting Arlington Heights, 429 U.S. 
at 266); see id. at *21 (making findings with respect to 
other Arlington Heights factors). The court explained 
that “the totality of the evidence” demonstrated that 
the plan “was motivated, at least in part, by discrimina­
tory intent.” Id. at *21.9

The Texas redistricting litigation demonstrates 
that, despite gains effected by the VRA, Congress was 
prescient in its judgment that “racial and language mi­
norities remain politically vulnerable, warranting the 
continued protection” of Section 5. VRARAA § 2(b)(3); 
see also LULAC v. Perry, 548 U.S. 399,440 (2006) (“the 
‘political, social, and economic legacy of past discrimina­
tion’ for Latinos in Texas may well ‘hinder their ability 
to participate effectively in the political process’” (cita­
tions omitted)).

D. Post-2006 Evidence Confirms That The 
Bailout Mechanism Continues To Advance 
The Requirement Of Proportionality

As shown in Part II.B, Congress’s decision to reau­
thorize Section 5 in covered jurisdictions rested in part 
on its judgment that the bailout mechanism would con­
tinue to ensure that the Section 5 remedy applied only 
where it is needed. Congress’s judgment has proven 
well-founded, particularly in the wake of this Court’s 
broad interpretation of the scope of the bailout provi­
sion in Northwest Austin, 557 U.S. at 211.

9 The court also determined that the Texas State House Plan 
had a retrogressive effect because it dismantled the coalition dis­
trict of prominent Asian-American legislator Hubert Vo. See Tex­
as, 2012 WL 3671924, at *31-34.



28

Bailout has been granted in 27 cases since VRA 
reauthorization in 2006, with many of the bailout cases 
covering multiple jurisdictions. See DOJ, Section U of 
the Voting Rights Act, http://www.justice.gov/crt/ 
about/vot/misc/sec_4.php (last visited Jan. 31, 2013). 
And it has occurred in 20 cases in the relatively short 
time since this Court’s decision in Northwest Austin. 
See id. As the United States has noted, “the rate of 
successful bailouts has rapidly increased” since this 
Court “vastly expanded” bailout eligibility. U.S. Br. 54; 
see Pet. App. 62a (as of May 2012, “ 136 jurisdictions and 
subjurisdictions [have] bailed out, including 30 counties, 
79 towns and cities, 21 school boards, and 6 utility or 
sanitary districts”).10 Moreover, as the court of appeals 
found below, the Attorney General has a number of ac­
tive bailout investigations pending, covering 100 juris­
dictions and subjurisdictions in several states. Pet. 
App. 63a. The number of bailouts, their increasing fre­
quency, and the pending investigations all reveal the 
error in petitioner’s claim (Br. 54) that bailout matters 
“only at the margin.” To the contrary, the post-2006 
record establishes that bailout is functioning precisely 
as Congress expected: as an important statutory safe­
guard ensuring Section 5 applies only where it is need­
ed. See H.R. Rep. No. 109-478, at 25 (“covered status 
has been and continues to be within the control of the 
jurisdiction”).11

10 Petitioner Shelby County, of course, is unable to seek 
bailout because it “held several special elections under a law for 
which it failed to seek preclearance and because the Attorney 
General had recently objected to annexations and a redistricting 
plan proposed by a city within Shelby County.” Pet. App. 11a.

11 Petitioner discounts bailout (Br. 54) because “only a tiny 
percentage of ... covered jurisdictions have bailed out of cover­
age.” But many jurisdictions view preclearance positively and

http://www.justice.gov/crt/


29

IV. Congress Properly Determined That Section 2
Alone Is An “Inadequate Remedy”

In reauthorizing Section 5 in 2006, Congress found 
that, without preclearance in covered jurisdictions, mi­
nority voters would be left only with the “inadequate 
remedy” of Section 2. H.R. Rep. No. 109-478, at 57. 
Congress’s assessment— one that this Court has con­
sistently credited, see City of Boerne, 521 U.S. at 525- 
526; South Carolina, 383 U.S. at 313-314—was well- 
supported. In particular, the record before Congress 
demonstrated that Section 2 is an “ineffective” substi­
tute for preclearance, H.R. Rep. No. 109-478, at 57, be­
cause case-by-case enforcement shifts the burden to the 
victim, permits the discriminatory voting change to go 
into effect, and is expensive and time consuming. See 
Understanding the Benefits and Costs of Section 5 Pre­
clearance, Hearing Before the S. Comm, on the Judici­
ary, 109th Cong. 80 (2006).

First, Congress appropriately declined to ‘“reverse 
the burden of proof” in covered jurisdictions by forcing 
minority voters to rely on Section 2 litigation. H.R. 
Rep. No. 109-478, at 66. Rather than shift the burden 
of “time and inertia” onto minority voters, South Caro­
lina, 383 U.S. at 328, Congress decided that the burden 
should rest with jurisdictions with historical records of 
racial discrimination in voting.

The record amassed by Congress supported that 
judgment. Congress learned that mounting Section 2

have no desire to bail out. See Reauthorizing the Voting Rights 
Act’s Temporary Provisions: Policy Perspectives and Views from  
the Field, Hearing Before the Subcomm. on the Constitution, Civil 
Rights, and Property Rights o f the S. Comm, on the Judiciary, 
109th Cong. 313-314 (2006). Indeed, as discussed supra p. 17, eve­
ry jurisdiction that has sought bailout has succeeded.



30

litigation is particularly troublesome for voters in local 
and rural communities who often experience discrimi­
nation but lack access to the resources and expertise 
necessary to pursue Section 2 suits. See History, 
Scope, and Purpose 79, 84; Modem Enforcement of the 
Voting Rights Act, Hearing Before the S. Committee on 
the Judiciary, 109th Congress 96 (2006) (without Sec­
tion 5, “discriminatory voting changes ... will not be 
adequately or evenly addressed by private litigation 
under Section 2”); Pet. App. 45a-46a; Pitts, Let’s Not 
Call the Whole Thing Off Just Yet, 84 Neb. L. Rev. 605, 
612-613, 616 (2005). Congress reasonably concluded 
that continuing to place the burden on covered jurisdic­
tions, where it is most efficiently borne, would enable 
“the Federal Government and court[s] to stay one step 
ahead of ... jurisdictions that have a documented histo­
ry of denying minorities the protections guaranteed by 
the Constitution.” H.R. Rep. No. 109-478, at 65.

Second, Congress reasonably determined that Sec­
tion 2 lacked the “vital prophylactic” effect, H.R. Rep. 
No. 109-478, at 21, essential in covered jurisdictions. 
Unlike the Section 5 process, Section 2 suits are typi­
cally brought only after the voting change has gone into 
effect. See, e.g., City of Mobile v. Bolden, 446 U.S. 55, 
59 (1980) (plurality opinion) (challenged method of elec­
tion “enacted in 1911”). Congress learned that it may 
take several election cycles before enough evidence is 
available to mount a successful Section 2 challenge, and, 
even then, these suits can take years to litigate, during 
which time the challenged practice remains in place and 
incumbents may reap the rewards of a discriminatory 
scheme. See History, Scope, and Purpose 92; id. 101 (“2 
to 5 years” to litigate a Section 2 suit a “rough aver­
age”); Reauthorizing the Voting Rights Act’s Tempo­
rary Provisions: Policy Perspectives and Views from



31

the Field, Hearing Before the Subcomm. on the Consti­
tution, Civil Rights, and Property Rights of the S. 
Comm, on the Judiciary, 109th Cong. 121 (2006) (“sev­
eral years ... exclusive of any appeals” ). This Court is 
familiar with this concern: When the Court struck
down part of Texas’s 2003 congressional redistricting 
plan, LULAC, 548 U.S. at 440 (noting that it “ [bore] the 
mark of intentional discrimination”), the 2004 congres­
sional elections had already occurred.12

Finally, Congress reasonably concluded that Sec­
tion 2 litigation imposes a substantial financial burden 
on minority voters. See History, Scope, and Purpose 
92, 97. Those burdens include not only attorney’s fees 
and other routine litigation costs, but also fees for ex­
perts necessary in voting litigation, such as demogra­
phers, statisticians, and political scientists. Id. at 97; 
see also An Introduction to the Expiring Provisions of 
the Voting Rights Act and Legal Issues Relating to

12 Plaintiffs in LULAC applied to this Court for a stay, which 
was denied. See Jackson v. Perry, 124 S. Ct. 1143 (2004). LULAC 
thus illustrates why seeking injunctive relief is a “heavy burden ... 
insufficient to alleviate [Congress’s] concerns about the inadequa­
cy of section 2 actions.” Pet. App. 47a; see, e.g., Reynolds v. Sims, 
377 U.S. 533, 585 (1964) (“general equitable principles” may coun­
sel against injunctive relief where an “election is imminent and a 
State’s election machinery is already in progress”); Favors v. 
Cuomo, 2012 WL 1802073, at *9, *10 (E.D.N.Y. May 16, 2012) 
(denying preliminary injunction in part for failure to establish like­
lihood of success because Section 2 claims are “factually and legally 
complex” and “typically require substantial expert testimony and 
analysis”). For the contrary position, petitioner and its amici rely 
on Judge Williams’ dissent, which in turn relies on Perry v. Perez, 
132 S. Ct. 934, 942 (2012). See Pet. App. 77a-78a. But Perry did 
not suggest that preliminary relief for Section 2 plaintiffs was 
“standard.” Id. 77a. Rather, it addressed the proper parameters 
of a plan drawn by the district court to replace a state-drawn plan 
challenged under Section 2. See Perry, 132 S. Ct. at 942.



32

Reauthorization, Hearing Before the S. Comm, on the 
Judiciary, 109th Cong. 141 (2006). Indeed, “much of 
the burden associated with either proving or defending 
a Section 2 vote dilution claim is established by infor­
mation that only an expert can prepare.” H.R. Rep. 
No. 109-478, at 64.13 Congress learned that voting cases 
rank near the top of all civil cases in complexity, Un­
derstanding the Benefits and Costs of Section 5 Pre­
clearance, Hearing Before the S. Comm, on the Judici­
ary, 109th Cong. 20, 80 (2006), and that the cost of liti­
gation routinely approaches “millions of dollars,” To 
Examine the Impact and Effectiveness of the Voting 
Rights Act, Hearing before the Subcomm. on the Con­
stitution of the H. Judiciary Comm., 109th Cong. 42 
(2005); see Benefits and Costs 20 (Section 2 suit “took 
over 3 years” and cost over “$2 million” ); Evidence of 
Continued Need 175-176. Section 5, by contrast, ap­
propriately relieves minority voters of the burden of 
bankrolling large-scale litigation while placing on cov­
ered jurisdictions the comparatively small financial 
burden associated with administrative preclearance. 
See History, Scope, and Purpose 79.

Based on these findings, Congress concluded that, 
if Section 2 were the sole remedy in the covered juris­
dictions, “many discriminatory voting changes [would] 
go unchecked.” Reauthorizing the Temporary Provi­
sions 120; H.R. Rep. No. 109-478 at 57 (Section 2 “inef-

13 In 2006, Congress amended the VRA to include expert fees 
in the category of fees and expenses that can be awarded to pre­
vailing plaintiffs. See VRARAA § 6, amending 42 U.S.C. 
§ 1973£(e). However, “prevailing plaintiffs typically do not recover 
all of their costs in voting cases, and even the addition of expert 
witness fees [to § 1973f(e)] will not change th[at] result.” Reau­
thorizing the Temporary Provisions 121; see also History, Scope, 
and Purpose 92.



33

fective ... in light of the increased activity under Sec­
tions 5 and 8 over the last 25 years”)- There are “not 
enough lawyers who practice in th[is] area to carry the 
load,” nor are there the necessary financial resources to 
pursue private challenges under the Act. Modem En­
forcement of the Voting Rights Act, Hearing Before the
S. Comm, on the Judiciary, 109th Cong. 149 (2006); cf 
Cunningham Resp.-Intervenor Br. 42, 43 (“ [no]thing in 
... ‘the record to support... speculation’ that DOJ could 
[adequately] scale up its Section 2 enforcement,” and 
noting that DOJ participates in only “a small fraction” 
of Section 2 suits). Given the magnitude and persis­
tence of discrimination in covered jurisdictions, Con­
gress reasonably determined that case-by-case litiga­
tion in the covered jurisdictions—slow, costly, and lack­
ing Section 5’s prophylactic effect—“would be ineffec­
tive to protect the rights of minority voters.” H.R. 
Rep. No. 109^478, at 57.

In short, Congress’s decision that “Section 5 ... 
continued] to be a shield that prevents backsliding 
from the gains previously won,” H.R. Rep. No. 109-478, 
at 53—and that Section 2 standing alone was insuffi­
cient to achieve that goal—was reasonable and rested 
on substantial evidence, see Turner Broad., 512 U.S. at 
666. This Court should decline petitioner’s invitation to 
second-guess that legislative judgment.



34

CONCLUSION

The judgment of the court of appeals should be af­
firmed.

Respectfully submitted.

D a n i e l l e  Sp in e l l i  
Counsel o f Record 

D a n i e l l e  C o n l e y  
K e l l y  P. D u n b a r  
So n y a  L . L e b s a c k  
W il m e r  C u t l e r  P ic k e r in g  

H a l e  a n d  D o r r  l l p  
1875 Pennsylvania Ave., NW 
Washington, DC 20006 
(202) 663-6000
danielle.spineUi@wilmerhale.com

F e b r u a r y  2013

mailto:danielle.spineUi@wilmerhale.com


ADDENDUM



la

LIST OF AMICI CURIAE

Congressional Black Caucus (CBC)

Karen Bass 
Joyce Beatty 
Sanford D. Bishop, Jr.
Corrine Brown 
G.K. Butterfield 
Andre Carson 
Donna M. Christensen 
Yvette Clarke 
William Lacy Clay, Jr.
Emanuel Cleaver II 
James E. Clyburn 
John Conyers, Jr. *
Elijah E. Cummings 
Danny K. Davis 
Donna F. Edwards 
Keith Ellison 
Chaka Fattah 
Marcia L. Fudge *
A1 Green *
Alcee L. Hastings 
Steven Horsford 
Sheila Jackson Lee 
Hakeem Jeffries 
Eddie Bernice Johnson 
Hank Johnson 
Barbara Lee *
John Lewis 
Gregory W. Meeks 
Gwendolynne Moore

Also a member of CAPAC



2a

Eleanor Holmes Norton 
Donald M. Payne, Jr.
Charles B. Rangel *
Cedric Richmond 
Bobby L. Rush 
David Scott 
Robert C. Scott *
Terri Sewell 
Bennie Thompson 
Marc Veasey 
Maxine Waters 
Melvin L. Watt 
Frederica Wilson

Congressional H ispanic Caucus (CHC)

Xavier Becerra *
Tony Cardenas 
Joaquin Castro 
Jim Costa 
Henry Cuellar 
Joe Garcia 
Raul Grijalva *
Luis Gutierrez 
Ruben Hinojosa 
Ben Ray Lujan 
Michelle Lujan Grisham 
Grace Napolitano *
Gloria Negrete McLeod 
Ed Pastor
Lucille Roybal-Allard *
Raul Ruiz
Gregorio “ Kilili” Sablan *
Linda Sanchez *
Loretta Sanchez *
Jose Serrano



3a

Albio Sires 
Juan Vargas 
Filemon Vela 
Nydia Velazquez

Congressional A sian Pacific  A merican Caucus
(CAPAC)

Ami Bera 
Madeleine Bordallo 
Judy Chu
Tammy Duckworth 
Eni F. H. Faleomavaega 
Tulsi Gabbard 
Colleen Hanabusa 
Mike Honda 
Doris 0. Matsui 
Grace Meng 
Mark Takano 
Gerald E. Connolly 
Joseph Crowley 
Zoe Lofgren 
Jerry McNerney 
Jan Schakowsky 
Brad Sherman 
Jackie Speier 
Susan Davis 
Janice Hahn 
Carolyn Maloney 
Adam Schiff 
Adam Smith 
Chris Van Hollen



.

_________ ...



No. 12-96

I n  T h e

î uprottr (Emirt of %  lutteii States
S h e l b y  C o u n t y , A l a b a m a , 

v.
Petitioner,

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 , e t  a l .,
Respondents.

ON W RIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT

CERTIFICATE OF SERVICE

I, Danielle Spinelli, a member o f the bar of this Court, hereby certify that, on this 
1st day o f February, 2013, all parties required to be served have been served copies of 
the Brief for Amici Curiae Marcia L. Fudge, Member o f Congress and Chair of the 
Congressional Black Caucus, Ruben Hinojosa, Member o f Congress and Chair of the 
Congressional Hispanic Caucus, and Judy Chu, Member o f Congress and Chair of the 
Congressional Asian Pacific American Caucus, et al., in Support o f Respondents in this 
matter by overnight courier to the addresses below.

Counsel for Petitioner
B e r t W . R e i n  
W i l e y  R e i n  L L P  
1776 K Street, NW 
Washington, DC 20006 
(202) 719-7000 
brein@wileyrein.com

Counsel for Respondent-Intervenor 
Bobby Lee Harris
J o n  M . G r e e n b a u m  
L a w y e r s ’ C o m m it t e e  f o r  

C i v i l  R ig h t s  U n d e r  L a w  
1401 New York Avenue N.W., Suite 1400 
Washington, D.C. 20005 
(202) 662-8315
j greenbaum@lawyerscommittee.org

Counsel for Respondent 
Eric H. Holder, Jr.
D o n a l d  B . V e r r i l l i , J r .
S o l ic it o r  G e n e r a l  
950 Pennsylvania Avenue, NW 
Washington, DC 20530-0001 
(202) 514-2217 
supremectbriefs@usdoj .gov

Counsel for Respondents-Intervenors 
Bobby Pierson, et al.
M . L a u g h l i n  M c D o n a l d  
A m e r ic a n  C i v il  L i b e r t ie s  

U n io n  F o u n d a t io n  
230 Peachtree Street, NW, Suite 1440 
(404) 523-2721 
lmcdonald@aclu.org

mailto:brein@wileyrein.com
mailto:greenbaum@lawyerscommittee.org
mailto:lmcdonald@aclu.org


Counsel for Respondent-Intervenors 
Earl Cunningham, et al.
D e b o P. A d e g b i l e  
NAACP L e g a l  D e f e n s e  

& E d u c a t i o n a l  F u n d , I n c .
99 Hudson Street, 16th Floor 
New York, NY 10013 
(212) 965-2200 
dadegbile@naacpldf.org

D a n i e l l e  S p i n e l l i  /  
W il m e r  C u t l e r  P ic k e r in g

H a l e  a n d  D o r r  l l p  
1875 Pennsylvania Avenue, NW 
Washington, DC 20006 
(202) 663-6000
danielle.spinelli@wilmerhale.com

mailto:dadegbile@naacpldf.org
mailto:danielle.spinelli@wilmerhale.com


No. 12-96

I n  T h e

Supreme (Emtrt of tfye United States

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

ON WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT

CERTIFICATE OF COMPLIANCE

As required by Supreme Court Rule 33.1(h), I, Danielle Spinelli, a member of the 
bar of this Court, certify that the accompanying Brief for Amici Curiae Marcia L. Fudge, 
Member of Congress and Chair of the Congressional Black Caucus, Ruben Hinojosa, 
Member of Congress and Chair of the Congressional Hispanic Caucus, and Judy Chu, 
Member o f Congress and Chair of the Congressional Asian Pacific American Caucus, et 
al., in Support of Respondents contains 8,937 words, excluding the parts of the document 
that are exempted by Supreme Court Rule 33.1(d).

Executed on February 1, 2013.

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

v.

W il m e r  C u t l e r  P ic k e r in g

H a l e  a n d  D o r r  l l p  
1875 Pennsylvania Avenue, NW 
Washington, DC 20006 
(202) 663-6000
danielle.spinelli@wilmerhale.com

mailto:danielle.spinelli@wilmerhale.com