Nix v. Holder Brief of Amicus Curiae

    Nos. 12-81, 12-96

Jtt the Supreme dowtt of the United Statea

John Nix, et al.

v.
Petitioners,

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

Shelby County, Alabama

v.

Petitioner,

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

On Petition for a Writ of Certiorari to the U.S. Court 
of Appeals for the District of Columbia Circuit

Brief of Amicus Curiae Cato Institute 
In Support of Petitioners in Both Cases

Ilya Shapiro
Counsel of Record 

Matthew B. Gilliam 
Cato Institute 
1000 Mass. Ave., N.W. 
Washington, DC 20001 
(202) 842-0200 
ishapiro@cato.org

mailto:ishapiro@cato.org


QUESTIONS PRESENTED

1. Has the modern application of the Voting Rights 
Act resulted in an exercise of extra-constitutional 
authority by the federal government that conflicts 
with the Act’s very purpose?

2. Can Voting Rights Act Sections 2 and 5 coexist? If 
not, which section is the more appropriate remedy 
for remedying voter disenfranchisement?



11

Page

QUESTIONS PRESENTED.........................................i
TABLE OF AUTHORITIES...................................... iii
INTEREST OF AMICUS CURIAE.............................1
SUMMARY OF ARGUMENT.....................................2
ARGUMENT................................................................ 4
I. THIS COURT MUST RECONSIDER THE

CONTINUING VTABLITY OF THE VOTING 
RIGHTS ACT BECAUSE THIS HISTORIC 
LEGISLATION NO LONGER SERVES ITS 
ORIGINAL PURPOSE...........................................4
A. The VRA, Once Justified by Jim Crow, Is

Now an “Eye Glazing Mess” .............................4
1. Successful at First....................................... 4
2. Moving in the Wrong Direction.................. 6
3. Congress Exacerbates the Anachronism... 8

B. Section 5 Conflicts with the Constitution....11
1. Substantial Federalism Costs...................12
2. Equal Protection Problems.......................14
3. Confusing Purpose and Effect..................17

II. SECTIONS 2 AND 5 ARE AT A “BLOODY
CROSSROADS” .................................................... 20
A. The Conflict between Sections 2 and 5 Creates

Bad Law........................................................... 20
B. Section 2 is the Proper Remedy for the Prob­

lems Congress Identified................................23
CONCLUSION.......................................................... 25

TABLE OF CONTENTS



Ill

Page(s)
Cases

Abrams v. Johnson, 521 U.S. 74 (1997)................... 15

Bartlett v. Strickland, 556 U.S. 1 (2009)..........  15, 20

Beer v. United States, 425 U.S. 130 (1976).............. 21

Branch v. Smith, 538 U.S. 254 (2003)..................... 15

Colleton County Council v. McConnell,
201 F. Supp. 2d 618 (D.S.C. 2002)........................21

Georgia v. Ashcroft, 539 U.S. 461 (2003)........ passim

Lopez v. Monterey County, 525 U.S. 266 (1999)....... 5

LULAC v. Perry, 548 U.S. 399 (2006) ..................... 15

Metts v. Murphy, 347 F.3d 346 (2003)................ 20-21

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

Reno v. Bossier Parish School Bd.,
520 U.S. 471 (1997).................................................20

Ricci v. DeStefano, 129 S. Ct. 2658 (2009)..............  18

Roe u. Wade, 410 U.S. 113 (1973)............................... 3

Shaw v. Reno, 509 U.S. 630 (1993)............................7

TABLE OF AUTHORITIES



IV

Shelby County v. Holder,
679 F.3d 848 (D.C. Cir. 2012).................... passim

South Carolina v. Katzenbach,
383 U.S. 301 (1966) ...................................5,11,23

United States v. Bd. of Comm’rs of Sheffield,
435 U.S. 110 (1978)...............................................12

Uno v. Holyoke, 72 F.3d 973 (1995)........ 11

Upham v. Seamon, 456 U.S. 37 (1982)................... 21

Statutes and Constitutional Provisions

Voting Rights Act of 1965,
42 U.S.C. § 1973 et seq.................................. passim

U.S. Const, amend. XIV....................................passim

U.S. Const, amend. XV.....................................passim

Pub. L. No. 109-246 § 2(b)(l)(2) (2006)..................... 8

Other Authorities

Abigail Thernstrom, A Period Piece, Volokh Con- 
spir acy (Aug. 20, 2009),
http://volokh.com/2009/08/20/a-period-piece....... 10

Abigail Thernstrom, Looking Forward, Volokh 
Conspiracy (Aug. 21, 2009), 
http://volokh.com/2009/08/21/looking- 
forward ................................................................. 16

http://volokh.com/2009/08/20/a-period-piece
http://volokh.com/2009/08/21/looking-forward
http://volokh.com/2009/08/21/looking-forward


V

Abigail Thernstrom, Race-Conscious Districting: 
Needed and Costly, Volokh Conspiracy (Aug.
18, 2009), http://volokh.com/2009/08/18/race- 
conscious-districting-needed-and-costly.................6

Abigail Thernstrom, The Messy, Murky Voting 
Rights Act: A Primer, Volokh Conspiracy (Aug.
17, 2009), http://volokh.com/2009/08/17/the- 
messy-murky-voting-rights-act-a-primer.............. 4

Abigail Thernstrom, Voting Rights—and Wrongs:
The Elusive Quest for Racially Fair Elections 
(2009)..................................................................... 4, 9

Appeals Court Upholds Noxubee Voting Rights 
Ruling, Picayune Item, (Mar. 3, 2009), 
http://picayuneitem.com/statenews/x207928585 
9/ Appeals-court-upholds-Noxubee-voting- 
rights-ruling.............................................................10

Barack Obama, A More Perfect Union, Address at 
the National Constitution Center (Mar. 18,
2008) (transcript available at 
http://www.americanrhetoric.com/speeches/ 
barackobamaperfectunion.htm)................................3

Cass Sunstein, Republic.com (2001)......................... 16

David Epstein, The Future of the Voting Rights 
Act (2006)....................................................................4

Gwen Ifill, The Breakthrough: Politics and Race 
in the Age of Obama (2009)...................................  16

H.R. Rep. No. 109-478 (2006) 8

http://picayuneitem.com/statenews/x207928585


VI

Interim House Order (Doc. 528) (Smith, J., dis­
senting), Perez v. Perry, No. 5:ll-cv-360 (W.D.
Tex. Nov. 23, 2011)................................................  21

Kenneth L. Marcus, The War Between Disparate 
Impact and Equal Protection, 2008-2009 Cato 
Sup. Ct. Rev. 53 (2009).........................................  18

Roger Clegg, The Future of the Voting Rights Act 
after Bartlett and NAMUDNO, 2008-2009 Cato 
Sup. Ct. Rev. 35 (2009)........................................  11

Thom File & Sarah Crissey, U.S. Census Bureau 
Population Reports: Voting and Registration in 
the Election of November 2008 4 (2010), avail­
able at
http://www.census.gov/prod/2010pubs/p20- 
562.pdf.......................................................................9

http://www.census.gov/prod/2010pubs/p20-562.pdf
http://www.census.gov/prod/2010pubs/p20-562.pdf


Established in 1977, the Cato Institute is a non­
partisan public policy research foundation dedicated 
to advancing the principles of individual liberty, free 
markets, and limited government. Cato’s Center for 
Constitutional Studies was established in 1989 to 
help restore the principles of limited constitutional 
government that are the foundation of liberty. To­
ward those ends, Cato publishes books and studies, 
conducts conferences, and publishes the annual Cato 
Supreme Court Review.

Nix and Shelby County implicate a constitutional 
overreach too long suffered in jurisdictions where the 
federal government found, nearly half a century ago, 
discrimination against African-American voters. The 
goal of preventing voter disenfranchisement is un­
questionably just (and constitutional), but it is no 
longer served by Section 5 of the Voting Rights Act. 
This provision now only perpetuates the very race- 
based political decisions the Act was intended to stop.

1

INTEREST OF AMICUS CURIAE1

1 Pursuant to this Court’s Rule 37.2(a), all parties were given 
timely notice of intent to file and written communications from 
Petitioners’ and Respondents’ counsel (in both cases) consenting 
to the filing of this brief has been submitted to the Clerk. Pur­
suant to Rule 37.6, amicus states that no part of this brief was 
authored by any party’s counsel, and that no person or entity 
other than amicus funded its preparation or submission.



2

“The historic accomplishments of the Voting 
Rights Act are undeniable.” Nw. Austin Mun. Util. 
Dist. No. One v. Holder (“NAMUDNO”), 557 U.S. 193, 
201 (2009). Its modern application, however, is prob­
lematic to say the least. Sections 2 and 5 conflict 
with each other, with the Fourteenth and Fifteenth 
Amendments, and with the orderly implementation of 
fair elections. These tensions—constitutional, statu­
tory, and practical—undermine the VRA’s legacy of 
vindicating the voting rights of all citizens.

Jurisdictions covered by Section 5 are subject to 
utterly predictable litigation, the outcome of which is 
often dependent on judges’ views of how to satisfy 
both the VRA’s race-conscious mandates and the Fif­
teenth Amendment’s command to treat people of all 
races equally under law. When added to legislators’ 
partisan interests, this navigation between the VRA’s 
Scylla and the Constitution’s Charybdis inevitably 
crashes the electoral vessel onto judicial shoals.

Moreover, Section 5’s preclearance system is an 
anachronism. As this Court found three terms ago,

The evil that § 5 is meant to address may no 
longer be concentrated in the jurisdictions sin­
gled out for preclearance. The statute’s cover­
age formula is based on data that is now more 
than 35 years old, and there is considerable 
evidence that it fails to account for current po­
litical conditions. For example, the racial gap 
in voter registration and turnout is lower in 
the States originally covered by § 5 than it is 
nationwide.

SUMMARY OF ARGUMENT



3

Id. at 203-04 (citing Edward Blum & Lauren Camp­
bell, Assessment of Voting Rights Progress in Juris­
dictions Covered Under Section Five of the Voting 
Rights Act 3-6 (AEI, 2006)).

Indeed, the list of Section 5 jurisdictions is bi­
zarre: six states of the Old Confederacy (and certain 
counties in three others), plus Alaska, Arizona, and 
counties or townships in other states ranging from 
New Hampshire to South Dakota. Curiously, (only) 
three New York counties are covered, all boroughs in 
New York City. What is going on in the Bronx, 
Brooklyn, and Manhattan that is not in Queens or 
Staten Island? Four members of this Court famously 
hail from Gotham, each from a different borough; 
perhaps they know something the rest of us don’t.

And all of this mess stems from the presumption 
that election regulations in certain places are illegal 
until proven otherwise. But three generations of fed­
eral intrusion on state prerogatives have been more 
than enough to kill Jim Crow.

The Voting Rights Act has exceeded expectations 
in making this nation “a more perfect union.” Barack 
Obama, A More Perfect Union, Address at the Na­
tional Constitution Center (Mar. 18, 2008) (transcript 
available at http://www.americanrhetoric.com/speec- 
hes/barackobamaperfectunion.htm). While celebrat­
ing its achievements, we must recognize that this 
success has obviated its constitutional legitimacy. 
Moreover, the VRA’s incongruities present the proto­
typical situation of legal problems that are capable of 
repetition, yet evading review. See, e.g., Roe v. Wade, 
410 U.S. 113, 125 (1973) (internal citations omitted). 
This Court needs to address the fundamental consti­
tutional defects arising under the modern VRA.

http://www.americanrhetoric.com/speec-hes/barackobamaperfectunion.htm
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4

ARGUMENT
I. THIS COURT MUST RECONSIDER THE 

CONTINUING VIABILITY OF THE VOTING 
RIGHTS ACT BECAUSE THIS HISTORIC 
LEGISLATION NO LONGER SERVES ITS 
ORIGINAL PURPOSE
A. The VRA, Once Justified by Jim Crow, Is 

Now “an Eye Glazing Mess”2
1. Successful at First

The Voting Rights Act has become “one of the 
most ambitious legislative efforts in the world to de­
fine the appropriate balance between the political 
representation of majorities and minorities in the de­
sign of democratic institutions.” Richard Pildes, In­
troduction to David Epstein, The Future of the Voting 
Rights Act xiv (2006).

Defining that appropriate balance, however, was 
not the VRA’s original aim. Its original purpose was 
simply to enfranchise southern blacks who were still 
being denied their voting rights a century after the 
Civil War. “The statute has become such an eye glaz­
ing mess that it’s easy to forget that in 1965 it was 
beautifully designed and absolutely essential.” Abi­
gail Thernstrom, The Messy, Murky Voting Rights 
Act: A Primer, Volokh Conspiracy (Aug. 17, 2009), 
http://volokh.com/2009/08/17/the-messy-murky- 
voting-rights-act-a-primer.

2 This section is based on the work of Abigail Thernstrom, legal 
historian and vice-chairman of the U.S. Commission on Civil 
Rights, particularly her book Voting Rights—and Wrongs: The 
Elusive Quest for Racially Fair Elections (2009) and her series of 
blogposts about the book at the Volokh Conspiracy blog.

http://volokh.com/2009/08/17/the-messy-murky-voting-rights-act-a-primer
http://volokh.com/2009/08/17/the-messy-murky-voting-rights-act-a-primer


5

When Congress enacted the VRA, Jim Crow was 
not going quietly into the historical night. Black bal­
lots were the levers of change that white suprema­
cists most feared, so enforcing the Fifteenth Amend­
ment required an overwhelming exercise of federal 
power—radical legislation that involved an unprece­
dented intrusion of federal authority into state and 
local elections. See Lopez v. Monterey County, 525 
U.S. 266, 282 (1999) (noting that Section 5, “which 
authorizes federal intrusion into sensitive areas of 
state and local policymaking, imposes substantial 
‘federalism costs’” (quoting Miller u. Johnson, 515 
U.S. 900, 926 (1995)).

The VRA effectively put southern states under 
federal electoral receivership. It suspended literacy 
tests, provided for the use of federal registrars, and 
demanded that suspect jurisdictions obtain preclear­
ance of proposed electoral changes. A reverse- 
engineered statistical trigger identified these “cov­
ered” jurisdictions; the burden to prove that changes 
in voting procedure were free of racial animus—to 
prove a negative—lay on these Section 5 jurisdictions.

Justice Black worried that the provision compelled 
states to “beg federal authorities to approve their 
policies,” so distorting our constitutional structure as 
to nearly eradicate the distinction between federal 
and state power. South Carolina v. Katzenbach, 383 
U.S. 301, 358 (1966) (Black, J., concurring in part and 
dissenting in part). It was a valid point, but the VRA 
succeeded where all other attempts to secure voting 
rights failed: black voter registration skyrocketed.

The enforcement authority that would remedy a 
century of Fifteenth Amendment violations thus 
amounted to what might be called “federal wartime



6

powers.” As on other occasions when wartime powers 
were invoked, however, the consequence was a seri­
ous distortion of constitutional order. Abigail Thern- 
strom, Race-Conscious Districting: Needed and
Costly, Volokh Conspiracy (Aug. 18, 2009), http://volo- 
kh.com/2009/08/18/race-conscious-districting-needed- 
and-costly. Such a temporary distortion was justified 
in 1965, but it is not today.

2. Moving in the Wrong Direction
Section 5 was an emergency provision with an ex­

pected life of five years that instead has been repeat­
edly renewed. Every renewal became an occasion for 
expanding the VRA; never did Congress consider 
whether the law’s unprecedented reach should in­
stead be reduced in recognition of its success. Even as 
black political participation increased, federal power 
over local affairs grew.

In the 1970s, the government placed more groups 
and places into Section 5’s clutches. An arbitrary, 
careless change in the statistical trigger, for example, 
made three New York boroughs subject to preclear­
ance even though black New Yorkers had been freely 
voting since the Fifteenth Amendment’s enactment in 
1870, and had held municipal offices for decades. 
Hispanics, Asian Americans, American Indians, and 
Alaskan Natives became eligible for federal protec­
tion, even though their experience at the polls was 
not remotely comparable to that of southern blacks.

In 1982, Congress rewrote what had been an in­
nocuous preamble, Section 2, morphing it into a pow­
erful tool to attack election practices anywhere in the 
nation that had the “result” of denying the right to 
vote on account of race. But Section 2 as rewritten 
guaranteed electoral equality in some absolute

http://volo-kh.com/2009/08/18/race-conscious-districting-needed-and-costly
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7

sense—undefined and indefinable. The obvious pro­
portionality inquiry rests on profound misunder­
standings about the “natural” distribution of various 
groups across the sociopolitical landscape. Racist ex­
clusion should instead have been the concern.

The VRA thus moved in an unanticipated direc­
tion. Its original vision was one all decent Americans 
share: equal access to the political process, with 
blacks free to form coalitions and choose candidates 
in the same manner as everyone else. But in certain 
places, equality could not be reached simply by giving 
blacks the vote. Ballot access was insufficient after 
centuries of slavery, another century of segregation, 
ongoing racism, and persistent resistance to black po­
litical power. More aggressive measures were needed.

Consequently, blacks came to be treated as politi­
cally different. The VRA was amended to mandate 
the drawing of legislative districts effectively re­
served for black candidates. The power of federal au­
thorities to force jurisdictions to adopt “racially fair” 
maps conflicted starkly with the Constitution’s feder­
alism guarantees, while the entitlement of designated 
racial groups to legislative seats was discordant with 
traditional notions of democratic competition.

But serious costs accompany race-driven election 
regulation, costs that have increased as racism has 
waned. Nearly 20 years ago, this Court described 
race-driven electoral maps as “an effort to ‘segregate .
. . voters’ on the basis of race.” Shaw u. Reno, 509 
U.S. 630, 647 (1993) (O’Connor, J.) (quoting Gomil- 
lion u. Lightfoot, 364 U.S. 339, 341 (I960)). Such 
maps threaten “to stigmatize individuals by reason of 
their membership in a racial group.” Id. at 631.



8

3. Congress Exacerbates the Anachronism
The VRA is disconnected from the reality of mod­

ern American life. Blacks hold public office at all lev­
els and have reached the pinnacles of every field of 
private endeavor. The extreme problems that once 
made VRA necessary no longer exist. Still, in 2006, 
Congress overwhelmingly renewed the VRA, includ­
ing Section 5, for another 25 years. A campaign by 
so-called civil rights groups had persuaded Congress 
that race relations remain frozen in the past, that 
America is still plagued by persistent disfranchise­
ment, and that minority voters in covered jurisdic­
tions (through a formula last updated in 1975) should 
remain unable to participate in political life without 
electoral set-asides—and that those jurisdictions 
should not run elections without federal oversight.

“Discrimination [in voting] today is more subtle 
than the visible methods used in 1965. However, the 
effects and results are the same,” the House Judiciary 
Committee reported. H.R. Rep. No. 109-478, at 6 
(2006). “Vestiges of discrimination continue to exist.
. . [preventing] minority voters from fully participat­
ing in the electoral process,” the amended statute it­
self read. Pub. L. No. 109-246 § 2(b)(l)(2) (2006).

No evidence supported such extreme claims. The 
skepticism of those who can’t forget Jim Crow is un­
derstandable, but the South they remember is gone 
(and the discrimination that existed there never did 
in Alaska, Arizona, Manhattan, etc.). As the Court 
declared in NAMUDNO, “things have changed in the 
South” and “conditions . . . relied upon in upholding 
the statutory scheme in Katzenbach and City of Rome 
have unquestionably improved.” 557 U.S. at 202.



9

Massive disfranchisement is ancient history, as 
unlikely to return as segregated water fountains. 
America is no longer a land where whites hold the 
levers of power and minority representation depends 
on extraordinary federal intervention, consistent with 
the Constitution only as an emergency measure. To­
day, southern states have some of the highest black 
voter-registration rates in the nation; over 900 blacks 
hold public office in Mississippi alone. Abigail Thern- 
strom, Voting Rights—and Wrongs: The Elusive 
Quest for Racially Fair Elections 11 (2009).

By the 2008 election, a stunning 69.7 percent of 
the black population was registered to vote and turn­
out rates were similarly impressive. Thom File & 
Sarah Crissey, U.S. Census Bureau Population Re­
ports: Voting and Registration in the Election of No­
vember 2008 4 (2010), available at http://www.censu- 
s.gov/prod/2010pubs/p20-562.pdf. By 2008, there 
were 41 members of the Congressional Black Caucus; 
almost 600 African-Americans held seats in state leg­
islatures, and another 8,800 were mayors, sheriffs, 
school board members, and the like. Forty-seven per­
cent of these officials lived in Section 5 states, even 
though those states contained only 30 percent of the 
nation’s black population. Thernstrom, Voting 
Rights—and Wrongs 203. The bottom line is indis­
putable: Section 5 states elect black candidates at 
higher rates than the rest of the country.

But without the threat of federal interference, 
would southern state legislatures feel free to engage 
in mischief? It seems wildly improbable, even in the 
Deep South. Indeed, one of the latest VRA remedial 
orders involved a black Democratic Party county 
chairman in Mississippi conspiring to discriminate

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10

against white voters. See, e.g., Appeals Court Up­
holds Noxubee Voting Rights Ruling, Picayune Item, 
Mar. 3, 2009, http://picayuneitem.com/statenew-
s/x2079285859/Appeals-court-upholds-Noxubee- 
voting-rights-ruling.

In the same vein, a 2008 Clarksdale, Mississippi, 
newspaper editorial noted that “[t]here’s probably 
less chance today of election discrimination against 
minorities occurring in Mississippi—given the high 
number of African-Americans in elected office, includ­
ing as county election commissioners—than in many 
parts of the country not covered by the Voting Rights 
Act.” Quoted in Abigail Thernstrom, A Period Piece, 
Volokh Conspiracy (Aug. 20, 2009), http://volok- 
h.com/2009/08/20/a-period-piece. Yet Section 5 still 
“presumes that minorities are powerless to protect 
their own election interests in places where they ac­
tually have the most clout.” Id.

Racial progress has rapidly outpaced the law, and 
the voting rights challenges of greatest concern to­
day—hanging chads, electronic-voting glitches, etc.— 
bear no relation to those that plagued us in 1965. 
The South has changed, America has changed, and 
it’s time for this Court to change constitutional un­
derstandings regarding the VRA as well.

Recognizing that Section 5 is “no longer constitu­
tionally justified” is not “a sign of defeat.” NA- 
MUDNO, 557 U.S. at 226 (Thomas, J., concurring in 
part and dissenting in part). As Justice Thomas 
wrote, a declaration that Section 5 is unconstitutional 
“represents a fulfillment of the Fifteenth Amend­
ment’s promise of full enfranchisement and honors 
the success achieved by the VRA.” Id. at 229. The 
Court should declare victory and excise Section 5.

http://picayuneitem.com/statenew-
http://volok-h.com/2009/08/20/a-period-piece
http://volok-h.com/2009/08/20/a-period-piece


11

B. Section 5 Conflicts with the Constitution3
At its inception, the VRA stood on firm constitu­

tional ground; it was pure antidiscrimination legisla­
tion designed to enforce basic rights. A clear princi­
ple justified its original enactment: skin color should 
be irrelevant when states determine voting eligibility. 
Unfortunately, clarity has been lost. Nearly 50 years 
later, the law has become what Judge Bruce Selya 
described as a “Serbonian bog.” Uno u. Holyoke, 72 
F.3d 973, 977 (1995). The legal landscape looks solid 
but is really a quagmire into which “plaintiffs and de­
fendants, pundits and policymakers, judges and jus­
tices” have sunk. Id.

In NAMUDNO, this Court fired unmistakable 
warnings at Congress. Although it recognized the his­
toric achievements of the VRA, the Court stated that 
“past success alone” is no longer “adequate justifica­
tion to retain the preclearance requirements.” 557 
U.S. at 202. The Court had originally upheld Section 
5 as a temporary exercise of federal power, conclud­
ing that “exceptional conditions could justify legisla­
tive measures not otherwise appropriate.” Katzen- 
bach, 383 U.S. at 334-335. But the statutes that 
Congress subsequently passed go far beyond enforc­
ing voting rights and, perversely, encourage segrega­
tion through racial gerrymandering.

3 This section is based on the work of Roger Clegg, president of 
the Center for Equal Opportunity and former DOJ official, par­
ticularly The Future of the Voting Rights Act after Bartlett and 
NAMUDNO, 2008-2009 Cato Sup. Ct. Rev. 35 (2009).



12

1. Substantial Federalism Costs
Rather than lifting the VRA’s constraints on fed­

eralism, Congress in 2006 heightened the tension be­
tween the states and federal government by overrul­
ing Bossier Parish II and Ashcroft and amending pre­
clearance requirements such that electoral changes 
must be rejected when they are believed to exhibit 
“any discriminatory purpose” or “diminish [ ] the abil­
ity of minority citizens...to elect their preferred can­
didates of choice.” 42 U.S.C. § 1973c.

Yet the Constitution preserves the powers of the 
states to regulate elections. Georgia u. Ashcroft, 539 
U.S. 461, 461-62. Absent a compelling justification or 
“exceptional conditions” (such as pervasive, invidious 
racial discrimination), election law falls within states’ 
reserved powers and is an essential element of their 
sovereignty. See NAMUDNO, 557 U.S. at 216 (Tho­
mas, J., concurring in part and dissenting in part) 
(“In the specific area of voting rights, this Court has 
consistently recognized that the Constitution gives 
the States primary authority over the structuring of 
electoral systems.” (citations omitted)); United States 
v. Bd. of Comm’rs of Sheffield, 435 U.S. 110, 141 
(1978) (Stevens, J., dissenting) (“[Preclearance is] a 
substantial departure . . . from ordinary concepts of 
our federal system; its encroachment on state sover­
eignty is significant and undeniable.”).

In NAMUDNO, this Court cited numerous cases 
acknowledging Section 5’s “intrusion into sensitive 
areas of state and local policymaking” and expressing 
“serious misgivings about the constitutionality of Sec­
tion 5.” 557 U.S. at 202 (quoting Miller, 515 U.S. at 
926). Neither Congress nor this Court can avoid these 
glaring constitutional doubts any longer.



13

Section 5 violates the Tenth Amendment and ba­
sic tenets of federalism in two principal ways. The 
first is that the preclearance regime undermines the 
“fundamental principle of equal sovereignty” by “dif­
ferentiating between the states” with a coverage for­
mula that is now unsubstantiated, invalid, and, 
therefore, completely arbitrary. Id. at 203 (“The evil 
that section 5 is meant to address may no longer be 
concentrated in the jurisdictions singled out for pre­
clearance. The statute’s coverage formula is based on 
data that is now more than 35 years old, and there is 
considerable evidence that it fails to account for cur­
rent political conditions.”). Moreover, “the greater the 
burdens imposed by section 5, the more accurate the 
coverage scheme must be.” Shelby County v. Holder, 
679 F.3d 848, 885 (D.C. Cir. 2012) (Williams, J., dis­
senting). Yet Congress did not review the coverage 
formula when it reauthorized the VRA in 2006.

The second Tenth Amendment violation lies in the 
preclearance regime’s mandate for anticipatory re­
view. Mandatory preclearance acts as a prior re­
straint on election law, a policy area generally re­
served to the states. In addition, anticipatory review 
ensnares every state and local electoral rule proposed 
by a covered jurisdiction. To obtain preclearance a 
covered jurisdiction must prove both the absence of 
“any discriminatory purpose” and that the proposed 
voting change will not detract from a minority group’s 
“ability to elect” its preferred candidate. Under this 
regime, whether the proposal affects a voter’s actual 
exercise of the right to vote is no longer the ultimate 
question. Now deviating from that central inquiry, 
the exclusive focus becomes whether a proposed rule 
affects a minority groups’ ability to elect their “pre­
ferred candidate” (whatever that means). As a conse­



14

quence, covered jurisdictions lose the freedom to show 
that plans formulated based on other factors warrant 
consideration. Besides restricting state autonomy, the 
“ability to elect” constraint coerces states to adopt “a 
particular brand of race conscious decision-making” 
that treats minorities as a monolithic bloc. Id. at 887.

Similarly, the requirement that covered jurisdic­
tions “prove the absence of a discriminatory purpose” 
conjures up memories of DOJ’s campaign of “maxi­
mizing majority-minority districts at any cost.” Id. at 
888. As Judge Williams commented below, the dis­
criminatory purpose standard, “at worst restored the 
DOJ’s ‘implicit command that states engage in pre­
sumptively unconstitutional race-based districting’” 
Id. (quoting Miller, 515 U.S. at 927), and “at best, 
‘exacerbated the substantial federalism costs that the 
preclearance procedure already exacts’.” Id. (quoting 
Reno v. Bossier Parish School Bd., 528 U.S. at 336).

2. Equal Protection Problems
The Court again faces here the tension between 

Section 5 and the Constitution’s non-discrimination 
mandate. As Justice Kennedy noted in Ashcroft, Sec­
tion 5 imposes a serious dilemma when consideration 
of race would constitutionally condemn a proposed 
regulation just as preclearance demands it. 539 U.S. 
at 491 (Kennedy, J., concurring) (“There is a funda­
mental flaw . . .  in any scheme in which the Depart­
ment of Justice is permitted or directed to encourage 
or ratify a course of unconstitutional conduct in order 
to find compliance with a statutory directive. ). 
Judge Williams below echoed Justice Kennedy s con­
cerns: Section 5 “not only mandates race-conscious 
decision-making, but a particular brand of it that 
departs from “the Reconstruction Amendments’



15

commitment to nondiscrimination.” Shelby County, 
679 F.3d at 887-888 (Williams, J., dissenting).

The VRA quite literally denies the equal protec­
tion of the laws by providing legal guarantees to some 
racial groups that it denies others. For example, a 
minority group may be entitled to a racially gerry­
mandered district while other groups are not so enti­
tled and indeed may lack protection against district­
ing that hurts them. This is nothing if not treating 
people differently based on race. Under the Constitu­
tion, no racial group should be assured “safe” districts 
or districts of “influence” unless all other groups are 
given the same guarantee—an impossibility even if it 
were a good idea.

Despite having achieved so much success early on, 
the continual effort to invent new justifications for 
Section 5—as well as Congress’s prescription of one­
dimensional remedies for electoral equality—are sow­
ing the seeds for future conflict. The racial balkani­
zation Section 5 fosters is so pernicious that this 
Court has repeatedly warned about its unconstitu­
tionality. See, e.g., NAMUDNO, 557 U.S. 193; Bart­
lett v. Strickland, 556 U.S. 1 (2009); Branch v. Smith, 
538 U.S. 254 (2003); Abrams, 521 U.S. 74. The seg­
regated districts that racial gerrymandering creates 
have led to uncompetitive elections, increased polari­
zation (racial and ideological), and the insulation of 
Republican candidates and incumbents from minority 
voters—as well as the insulation of minority candi­
dates and incumbents from white voters (contributing 
to these politicians’ difficulties in running for state­
wide office). As Chief Justice Roberts wrote, it is “a 
sordid business, this divvying us up by race.” LULAC 
v. Perry, 548 U.S. 399, 511 (2006).



16

Ironically, the VRA has become an obstacle to ra­
cial integration. Race-based districts have kept most 
black legislators from the political mainstream— 
precisely the opposite of what the law’s framers in­
tended. As of 2006, for example, all Congressional 
Black Caucus members were more liberal than the 
average white Democrat. Abigail Thernstrom, Look­
ing Forward, Volokh Conspiracy (Aug. 21, 2009), 
http://volokh.com/2009/08/21/looking-forward. Major­
ity-minority districts reward politicians who make 
the sort of racial appeals that are the staple of invidi­
ous identity politics. People across the political spec­
trum end up with more extreme views than they 
would otherwise hold when they talk only to those 
who are similarly-minded. See generally Cass Sun- 
stein, Republic.com (2001).

Not all black politicians have been trapped in safe 
minority districts, of course. Barack Obama himself 
lost a congressional race but went on to win a state­
wide election. A decade earlier, Mike Coleman be­
came the first black mayor of Columbus, Ohio, with 
the strategy: “Woo the white voters first . . . then 
come home to the base later.” Gwen Ifill, The Break­
through: Politics and Race in the Age of Obama 227 
(2009). Unfortunately, such candidates remain the 
exception. The VRA was meant to level the playing 
field but has been used to maximize black districts. 
The ugly implication is that black politicians need 
such help to win—but then their message is honed to 
appeal to limited constituencies. The marginalization 
that the VRA targets instead becomes entrenched.

http://volokh.com/2009/08/21/looking-forward


17

3. Confusing Purpose and Effect
To be sure, certain jurisdictions had played cat- 

and-mouse games with voting-rights enforcement— 
provoking Section 5’s preclearance response. Fair 
enough, but it is problematic that later VRA amend­
ments outlawed both actions with a racially disparate 
“purpose” and those with a racially disparate “ef­
fect”—so again that which the Constitution permits is 
illegal under a law meant to enforce the Constitution.

Whenever the government bans actions that 
merely have racially disparate impacts, two bad out­
comes are encouraged that would not be if the gov­
ernment only policed actual racial discrimination.

First, actions that are perfectly legitimate are 
abandoned. Focusing obsessively on guaranteeing 
majority-minority districts detracts from experimen­
tation with alternative methods of advancing minor­
ity political power and may prevent the election of 
pragmatic candidates who can create “biracial coali­
tions which [could be] key to passing racially progres­
sive policies.” Shelby County, 679 F.3d at 887 (Wil­
liams, J., dissenting) (quoting David Epstein & 
Sharyn O’Hallaran, Measuring the Electoral and Pol­
icy Impact of Majority-Minority Voting Districts, 43 
Am. J. Pol. Sci. 367, 390-92 (1999)). For instance, 
Judge Williams explained below that in Ashcroft, 
Georgia “gave covered jurisdictions an opportunity to 
make trade-offs between concentrating minority vot­
ers in increasingly safe districts and spreading some 
of those voters out into additional districts; the latter 
choice, the Court pointed out, might increase the 
‘substantive representation’ they enjoy and lessen the 
risks of ‘isolating minority voters from the rest of the 
state’ and of ‘narrowing their political influence to



18

only a fraction of political districts’.” Id. (quoting 
Ashcroft, 539 U.S. at 481). A similar dynamic may be 
at work in the reforms at issue in Nix.

Second, if the action is valuable enough, surrepti­
tious racial quotas will be adopted so that the action 
no longer produces a racially disparate impact. In 
staffing, for example, an employer who requires em­
ployees to have high school diplomas and who does 
not want to be sued for the resulting racially dispa­
rate impact has two choices: abandon the require­
ment (and hire employees he believes to be less pro­
ductive) or implement racial hiring quotas (engaging 
in the very discrimination that the statute suppos­
edly bans). This tension between the anti-racism 
mandate of prohibiting disparate treatment and the 
race-conscious mandate of prohibiting disparate im­
pact was at the forefront of another civil rights case 
that this Court decided three terms ago. See Kenneth 
L. Marcus, The War Between Disparate Impact and 
Equal Protection, 2008-2009 Cato Sup. Ct. Rev. 53 
(2009) (analyzing Ricci u. DeStefano, 129 S. Ct. 2658 
(2009)). Justice Scalia noted there that this tension 
is so strong that disparate impact statutes may vio­
late the Constitution’s equal protection guarantee. 
129 S. Ct. at 2682 (Scalia, J., concurring).

We see the same phenomenon in the VRA context. 
Some legitimate voting practices—e.g., ensuring that 
voters are U.S. citizens—will be challenged if they 
have a racially disparate impact. In racial gerry­
mandering cases, jurisdictions will be pressed to use 
racially segregated districting to ensure proportion­
ate election results and thus engage in the very dis­
crimination that the underlying law forbids!



19

To emphasize: The principal use of Section 5 today 
is to coerce state and local jurisdictions into devising 
plans with an eye on race, to ensure that minorities 
will elect representatives of the right color.

* * *

In NAMUDNO, the Court declared that “current 
burdens . . . must be justified by current needs,” 557 
U.S. at 203. Meanwhile, Section 4(b)’s coverage for­
mula should be “sufficiently related to the problem 
that it targets” to justify its infringement on the 
equal sovereignty of states. Id. Congress’s findings 
underlying the 2006 re-authorization were woefully 
inadequate to substantiate that “exceptional condi­
tions” or “current needs” existed to justify the ex­
traordinary burdens and enforcement powers they 
claimed. Since that time, not only has Congress re­
fused to address the inadequacy of their findings in 
light of NAMUDNO, but the Department of Justice 
continues to interfere with benign electoral reforms.

Because the burdens imposed by Section 5—the 
substantial federalism costs and the equal protection 
violations discussed supra—are not justified by “cur­
rent needs,” they fail to satisfy this Court’s require­
ments for “appropriate” constitutional enforcement 
legislation as required by the Fourteenth Amend­
ment, the Fifteenth Amendment, and Katzenbach. 
For the same reason, the coverage formula of section 
4 (b) cannot be deemed “congruent and proportional.”



20

II. SECTIONS 2 AND 5 ARE AT A “BLOODY 
CROSSROADS”
A. The Conflict between Sections 2 and 5 

Creates Bad Law
The VRA’s outdated provisions no longer advance 

the Fifteenth Amendment’s simple bar on race-based 
disenfranchisement. See NAMUDNO, 557 U.S. at 
210. Worse yet, racial equality is hindered by the 
complex judicial web surrounding VRA implementa­
tion. Courts face significant challenges in trying to 
avoid racial discrimination while administering the 
inherently race-conscious VRA.

Nix and Shelby County bring the tension between 
Sections 2 and 5 to the fore: Courts confront a “bloody 
crossroads” at the intersection of these provisions. 
While we know from Reno v. Bossier Parish School 
Bd., 520 U.S. 471 (1997), that each section requires a 
distinct inquiry, courts often face Section 2 claims 
while also having to draw electoral maps that have to 
comply with Section 5. While neither the DOJ nor 
the D.C. district court is supposed to deny Section 5 
preclearance on Section 2 grounds, Georgia v. 
Ashcroft, 539 U.S. at 478, courts are effectively forced 
to wear both hats. Their apparent inability to do so is 
not surprising given the lack of applicable standards.

Many courts have labored to satisfy the VRA in 
the context of a cacophony of precedent—some that 
invokes only Section 5, some only Section 2, and some 
that references both sections. What’s more, certain 
elements of the two inquiries overlap, even as this 
and other courts have consistently maintained that— 
at least in some measure—they are distinct. See, e.g., 
Bartlett v. Strickland, 556 U.S. 1; Georgia u. Ashcroft, 
539 U.S. 461; Metts v. Murphy, 347 F.3d 346 (1st Cir.



21

2003); Colleton County Council v. McConnell, 201 F. 
Supp. 2d 618, (D.S.C., 2002).

For example, in evaluating an election regulation 
under Section 5, a court conducts a “retrogression" 
analysis to ensure the proposed rule doesn’t reduce 
the ability of minorities to elect their preferred can­
didates. 42 U.S.C. § 1973c (2006); Beer u. United 
States, 425 U.S. 130 (1976). But there is no justicia­
ble definition of what constitutes the “ability to elect.”

Ignoring for the moment that ambiguity, if a court 
concludes that retrogression would result under a 
proposal, “court-ordered reapportionment plans are 
subject in some respects to stricter standards than 
are plans developed by a state legislature. This 
stricter standard applies, however, only to remedies 
required by the nature and scope of the violation.” 
Upham v. Seamon, 456 U.S. 37, 42 (1982) (internal 
citations omitted). Okay, but in what respects these 
standards are “stricter,” what constitutes “remedies,” 
and which remedies are “required” (and under what 
circumstances) is far from clear.

If that weren’t cryptic enough, Congress’s 2006 
prohibition on electoral regulations promulgated with 
“any discriminatory purpose,” regardless of effect, 
further muddied the waters. Without legislative 
guidance as to what constitutes a “discriminatory 
purpose,” lower courts are left only to “hope that . . . 
the Supreme Court will provide appropriate and im­
mediate guidance.” Interim House Order (Doc. 528) 
at 29 (Smith, J., dissenting), Perez v. Perry, No. 5:11- 
cv-360 (W.D. Tex. Nov. 23, 2011).

But even if this Court’s Section 5 guidance were 
easily applicable in a given case, that does not end 
the dispute. After a proposed rule has been pre­



22

cleared or judicially approved, Section 2 further com­
plicates matters. Its language sounds similar to Sec­
tion 5’s—it invalidates laws that create inequality 
among races in electing their preferred representa­
tives, 42 U.S.C. § 1973(b) (2006)—but don’t be fooled, 
say the courts. This Court has “consistently under­
stood” Section 2 to “combat different evils and, ac­
cordingly, to impose very different duties upon the 
States.” Georgia v. Ashcroft, 539 U.S. at 477-78 (cit­
ing Reno v. Bossier Parish, 520 U.S. at 477). The dis­
tinction Bossier Parish draws is merely that Section 5 
“by definition, requires a comparison of a jurisdic­
tion’s new voting plan with its existing plan.” Id. at 
478. Is that a meaningful difference?

Indeed, even if it is relatively clear that courts in­
tend the analysis under the two sections to be differ­
ent; how those analyses should differ remains am­
biguous. “In contrast to Section 5’s retrogression 
standard, the ‘essence’ of a Section 2 vote dilution 
claim is that ‘a certain electoral law, practice, or 
structure . . . cause[s] an inequality in the opportuni­
ties enjoyed by black and white voters to elect their 
preferred representatives.’” Georgia v. Ashcroft, 539 
U.S. at 478 (citing Thornburg v. Gingles, 478 U.S. 30, 
47 (1986)). This Section 2 process seems hardly dif­
ferent, however, from the very “retrogression” stan­
dard it distinguishes—a judicial assurance that a 
proposal “neither has the purpose nor will have the 
effect of denying or abridging the right to vote on ac­
count of race or color.” 42 U.S.C. § 1973c (2006).

The result is untenable: Some states and counties 
are subject to Section 5’s prolonged preclearance 
process while there has not yet been any judicial, leg­
islative, or otherwise meaningful articulation of any



substantjpe difference between that selectively ap­
plied-Section 5 analysis and the Section 2 review all 
states must satisfy. The contradictory precedent that 
has emerged creates a near-impossible task for courts 
administering the VRA. Section 5’s dubious constitu­
tionality weighs heavily in favor of declaring victory 
and moving on, with Section 2 as the proper remedy 
for addressing the problems Congress has identified.

B. Section 2 Is the Proper Remedy for the 
Problems Congress Identified

Given Section 5’s unconstitutional burdens, that 
provision’s conflict with Section 2 should be resolved 
in favor of the latter. In allowing a private right of 
action, Section 2 provides the appropriate means for 
enforcing the Fifteenth Amendment and ensuring 
that any state practice which “results in a denial or 
abridgment of voting rights,” 42 USC § 1973a, can be 
effectively remedied. That private right of action is a 
more targeted remedy, empowering citizens to liti­
gate specific discriminatory acts—in contrast to Sec­
tion 5’s broad sweep, which ensnares every voting 
change, no matter how miniscule or banal.

When the Court upheld the VRA in 1966 it found 
that Section 5’s generalized remedial mechanism was 
necessary because individualized litigation under 
Section 2 could not effectively fight such “widespread 
and persistent discrimination in voting.” Katzenbach, 
383 U.S. at 328. Although Section 5’s generalized re­
medial role was once appropriate and necessary in 
turning the tide against such “systematic resistance 
to the Fifteenth Amendment” and defeating “obstruc­
tionist tactics” id., modern instances of discrimina­
tion are discrete rather than systemic. Facetious



24

tests and sinister devices that eluded private rights of 
action are now permanently banned—while even Sec­
tion 2 violations are exceedingly rare and not dispro­
portionate to Section 5 jurisdictions.

Courts have also contemplated whether Section 2 
provides an adequate remedy, raising concerns about 
the costs and expediency. The DOJ can essentially 
assume plaintiffs’ costs for Section 2 suits, however, 
by either initiating the action itself or “intervening in 
support of the plaintiff as it often does.” Shelby 
County, 679 F.3d at 888 (Williams, J., dissenting). 
Moreover, prevailing parties in a Section 2 suit are 
reimbursed attorney and expert fees. Id. As for the 
issue of expediency, when discriminatory practices 
are imminent and threaten injury before parties have 
had the opportunity to litigate, the courts may issue a 
preliminary injunction “to prevent irreparable harm 
caused by adjudicative delay.” Id. (citing Perry v. 
Perez, 132 S. Ct. 934, 942 (2012)). Nothing in the leg­
islative record of the 2006 VRA amendments suggests 
that Section 2 private rights of action would be an in­
adequate remedy.

In sum, Section 5’s extraordinary measures are no 
longer constitutionally justifiable because entrenched 
discrimination is gone. The Court’s conclusion in 
Katzenbach that section 5 is a necessary supplement 
to Section 2 is no longer warranted.



25

CONCLUSION
The Voting Rights Act has served its purpose but 

is now outmoded and unworkable. Section 5 in par­
ticular causes tremendous federalism and equal pro­
tection problems, all while enforcing arbitrary stan­
dards that conflict with the Fourteenth and Fifteenth 
Amendments and with Section 2. Accordingly, amicus 
respectfully urges this Court to grant review in either 
Nix and Shelby County (or both) regarding the con­
tinuing viability of this historic piece of legislation.

Respectfully submitted,
Ilya Shapiro

Counsel of Record 
Matthew B. Gilliam 
Cato Institute 
1000 Mass. Ave., N.W. 
Washington, DC 20001 
(202) 842-0200 
ishapiro@cato.org

August 20, 2012

mailto:ishapiro@cato.org