Shelby County v. Holder Brief Amici Curiae

    No. 12-96

In the

Supreme (tart nf tlte Mmtzb States

SHELBY COUNTY, ALABAMA,

Petitioner,

v.

ERIC H. HOLDER, JR., ATTORNEY GENERAL OF 
THE UNITED STATES, et. al.,

Respondents.

On W rit of Certiorari to the United States Court 
of A ppeals for the District of Columbia

BRIEF FOR AMICI CURIAE 
SECTION 5 LITIGATION INTERVENORS

E zra D. R osenberg 
R ani A. H abash 
D echert LLP 
Suite 500
902 Carnegie Center 
Princeton, NJ 08540-6531

M ichael B. de L eeuw 
Counsel of Record 

A dam M. H arris 
D euel R oss 
V ictorien Wu 
F ried, F rank, H arris, 

Shriver & Jacobson LLP 
One New York Plaza 
New York, New York 10004 
(212) 859-8000 
michael.deleeuw@ 

friedfrank.com

(Additional Counsel Listed on Inside Cover)

245774



Gary B ledsoe 
L aw Office of

Gary L. Bledsoe & A ssociates 
316 West 12th St., Suite 307 
Austin, TX 78701

Jose Garza
L aw Offices of Jose Garza 
7414 Robin Rest Dr.
San Antonio, TX 98209

David Honig
F lorida State C onference of 

Branches of the NAACP 
802-4 S. Grand Highway 
Clermont, FL 34786

R obert S. N otzon 
T he L aw Office of 

R obert Notzon 
1502 West Ave.
Austin, TX 78701

Luis R. V era, Jr .
National General Counsel 

L eague of United L atin 
A merican C itizens 

1325 Riverview Towers 
111 Soledad
San Antonio, TX 78205-2260



TABLE OF CONTENTS

Page
INTERESTS OF THE AM ICI......................................1
SUMMARY OF ARGUMENT...................................... 2
ARGUMENT..................................................................5

I. RECENT PRECLEARANCE LITIGATION 
SHOWS THAT SECTION 5 IS “JUSTIFIED BY 
CURRENT NEEDS” ................................................5
A. This Court May Consider Post-Enactment 

Evidence In Deciding Whether Congress 
Correctly Determined That Section 5 Remains
Necessary.............................................................5

B. The Two Cases Involving Texas Show That
Section 5 Remains Necessary...........................6
1. The Texas Redistricting Case.................... 6
2. The Texas Photo ID Case.......................... 11

C. Section 5 Ameliorated The Potentially
Discriminatory Effects Of Laws In South 
Carolina And Florida.......................................15
1. The South Carolina Voter ID Case........ 15
2. The Florida Early Voting Case................ 17

II. THE 2012 CASES SHOW THAT POTENTIAL 
BURDENS OF SECTION 5 LITIGATION CAN 
BE SIGNIFICANTLY MINIMIZED................... 19
A. The 2012 Cases Were Highly Expedited..... 20
B. Section 5 Litigation Is Faster Than Litigation 

Under Section 2 While Preventing 
Discriminatory Laws From Taking Effect.... 23



C. The Scope Of Discovery In Section 5 Cases
Can Be Limited So As To Prevent Intrusion 
Into Privileged Legislative Matters..............25

D. Intervenors Carefully Managed By The Courts 
Played An Important Role In The 2012 Cases 
........................................................................... 26

E. Covered Jurisdictions Do Not Face An

ii

“Impossible Burden” Under Section 5 ......... 29
CONCLUSION........................................................... 32



I l l

TABLE OF AUTHORITIES

Cases
Page(s)

Bartlett v. Strickland,
556 U.S. 1 (2009)....................................................2

Beer v. United States,
425 U.S. 130 (1976)................................................30

Bush v. Vera,
517 U.S. 952 (1996).................................................. 7

City o f Mobile v. Bolden,
446 U.S. 55 (1980).................................................. 25

Crawford v. Marion County Election Board,
553 U.S. 181 (2008)................................................ 12

Florida v. United States,
820 F. Supp. 2d 85 (D.D.C. 2011)........................ 22

Florida v. United States,
___F. Supp. 2d___ , No. 11-1428, 2012 WL
3538298 (D.D.C. Aug. 16, 2012) ...................passim

Garza v. County o f  Los Angeles,
918 F.2d 763 (9th Cir. 1990).................................26

Johnson v. DeSoto County Board o f 
Commissioners,
868 F. Supp. 1376 (M.D. Fla.
1994), vacated, 72 F.3d 1556 (llth  Cir.
1996), remanded to 995 F. Supp. 1440 
(M.D. Fla. 1998), affd, 204 F.3d 1335 (llth  
Cir. 2000) 23



IV

Layton v. Elder,
143 F.3d 469 (8th Cir. 1998)................................... 5

League o f United Latin American Citizens v.
Perry,
548 U.S. 399 (2006)....................................... 7, 9, 10

Levy v. Lexington County, South Carolina,
No. 03-3093, 2009 WL 440338 (D.S.C. Feb.
19, 2009), vacated, 589 F.3d 708 (4th Cir.
2009), remanded to 2012 WL 1229511
(D.S.C. April 12, 2012)..........................................23

Matthews v. Jefferson,
29 F. Supp. 2d 525 (W.D. Ark. 1998).................... 6

Mazurek v. Armstrong,
520 U.S. 968 (1997)............................................... 24

Nevada Department o f Human Resources v.
Hibbs,
538 U.S. 721 (2003)..................................................5

Northwest Austin Municipal Utility District 
Number One v. Holder,
557 U.S. 193 (2009)................................... 2, 3, 7, 25

Shelby County Alabama v. Holder,
811 F. Supp. 2d 424 (D.D.C. 2011)........................ 3

Shelby County Alabama v. Holder,
679 F.3d 848 (D.C. Cir. 2012)..............3, 17, 23, 24

South Carolina v. United States,
___F. Supp. 2d___ , No. 12-203, 2012 WL
4814094 (D.D.C. Oct. 10, 2012) ................... passim



V

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

Texas v. Holder,
---- F. Supp. 2d___ , No. 12-128, 2012 WL
3743676 (D.D.C. Aug. 30, 2012), notice o f  
appeal filed  (D.D.C. Dec. 19, 2012).............passim

Texas v. United States,
---- F. Supp. 2d___ , No. 11-1303, 2012 WL
3671924 (D.D.C. Aug. 28, 2012), appeal 
docketed, No. 12-496 (U.S. Oct. 19, 2012).. passim

Thompson v. Glades County Board o f County 
Commissioners,
493 F.3d 1253, vacated, 508 F.3d 975 (llth  
Cir. 2007).................................................................23

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

Turner Broadcasting System, Inc. v. FCC,
520 U.S. 180 (1997)....................................................

Terrazas v. Slagle,
789 F. Supp. 828 (W.D. Tex. 1992), affd  
sub nom., Richards v. Terrazas, 505 U.S 
1214 (1992)..................................................................

United States v. Charleston County,
316 F. Supp. 2d 268 (D.S.C. 2003)................24, 25

Upham v. Seamon,
456 U.S. 37 (1982)................................... 7



VI

Vander Linden v. Hodges,
193 F.3d 268 (4th Cir. 1999).................................23

Village o f Arlington Heights v. M etro Housing 
Development Corp.,
429 U.S. 252 (1977).................................................. 8

Washington State Grange v. Washingston 
State Republican Party,
552 U.S. 442 (2008)................................................ 31

Weinberger v. Romero -Barcelo,
456 U.S. 305 (1982)................................................ 24

White v. Regester,
412 U.S. 755 (1973)...................................................7

White v. Weiser,
412 U.S. 783 (1973)...................................................7

Williams v. City o f Dallas,
734 F. Supp. 1317 (N.D. Tex. 1990).................... 25

Winter v. Natural Resources Defense Council,
Inc.,
555 U.S. 7 (2008).....................................................24

Federal Statutes and 
Congressional Material

28 U.S.C. § 1253...........................................................23

42 U.S.C. § 1973c(a).....................................................23

Voting Rights Act of 1965, Pub. L. No. 89-110,
79 Stat. 937....................................................passim



H.R. Rep. No. 109-478 (2006)............................2, 3, 17

Fed. R. Civ. P. 24......................................................... 29

Voting Rights A ct: Evidence o f Continuing 
Need-' Hearing Before the Subcomm. on the 
Constitution o f the H. Comm, on the 
Judiciary, 109th Cong. 80 (2005)........................ 25

State Statutes

Ga. Code Ann. § 21-2-417....................................12, 14

Ind. Code Ann. § 3-5-2-40.5(a).................................. 12

Tex. Elec. Code § 63.0101..........................................12

Docketed Cases. Court Filings 
and Docket Entries

Attorney General’s Proposed Findings of Fact 
and Conclusions of Law,
Texas v. Holder, No. 12-128 (D.D.C. June
25, 2012), ECF No. 223.......................................... 15

Brief of Arizona et al. as Amici Curiae in
Support of Petitioner..................................6, 20, 23

Brief of Cato Institute as Amicus Curiae in
Support of Petitioner ............................................29

Brief of Former Government Officials as Amici
Curiae in Support of Petitioner....................passim

Brief of National Black Chamber of Commerce
as Amici Curiae in Support of Petitioner.... 23, 24

Vll



V l l l

Brief for Reason Foundation as Amicus Curiae
in Support of Petitioner...........................................5

Brief of State of Texas as Amicus Curiae in
Support of Petitioner....................................passim

Defendant'Intervenors’ Proposed
Supplemental Non-Duplicative Findings 
of Fact and Conclusions of Law, Texas v.
Holder, No. 12-128
(D.D.C. June 27, 2012), ECF No. 241................. 15

Florida v. United States,
No. 11-1428 (D.D.C. Oct. 19, 2011), ECF
No. 42 ............................................................... 27, 28

Plaintiffs Motion to Expedite, Texas v. United 
States,
No. 11-1303 (D.D.C. Aug. 8, 2011), ECF
No. 10 ...................................................................... 22

South Carolina v. United States,
No. 12-203 (D.D.C. Mar. 20, 2012), ECF
No. 10 ............................................................... 27, 28

South Carolina v. United States,
No. 12-203 (D.D.C. Apr. 26, 2012),
ECF No. 64................................................. 16, 21, 29

South Carolina v. United States,
No. 12-203 (D.D.C. May 11, 2012), ECF No.
67 ............................................................................. 21

South Carolina v. United States,
No. 12-203 (D.D.C. Aug. 7, 2012), ECF No. 
155................................................................... 28



IX

Texas v. Holder,
No. 12-128 (D.D.C. Mar. 27, 2012), ECF
No. 4 3 ..................................................................... 20

Texas v. Holder,
No. 12-128 (D.D.C. May 7, 2012), ECF No.
107........................................................................... 21

Texas v. Holder,
No. 12-128 (D.D.C. May 22, 2012), ECF No.
137............................................................................21

Texas v. Holder,
No. 12-128 (D.D.C. June 13, 2012), ECF
No. 183.................................................................... 28

Texas v. United States,
No. 11-1303 (D.D.C. Aug. 16, 2011), ECF
No. 11 .......................................................................27

Texas v. United States,
No. 11-1303 (D.D.C. Sept. 22, 2011),
ECF No. 51....................................................... 22, 28

Texas v. United States,
No. 11-1303 (D.D.C. Sept. 30, 2011)
(paperless minute order).......................................28

United States’ Notice to the Court, Florida v. 
United States,
No. 11-142 (D.D.C. Sept. 19, 2012), ECF 
No. 161..................................... 19



X

Other Authorities

Administrative Office of the U.S. Courts,
Judicial Business o f the United States
Courts (2011)........................................................... 22

Opinion of the South Carolina Attorney 
General,
2011 WL 3918168 (Aug. 16, 2011)....................... 16

U.S. Commission on Civil Rights,
Redistricting and the 2010 Census-'
Enforcing Section 5 o f the Voting Rights
A ct{ 2012)................................................................ 30

7C Charles Alan Wright et al., Federal 
Practice and Procedure § 1913 (3d ed.
2012).........................................................................29



INTERESTS OF THE AMICI

Amici curiae1 were intervenors in the four 
cases decided in the last year under Section 5 of the 
Voting Rights Act of 1965 (“VRA”). These cases 
demonstrate that Section 5 is still necessary to 
achieve the constitutional goal of an election system 
free of the taint of racial and ethnic discrimination.

The Texas State Conference of NAACP 
Branches (“Texas NAACP”), the Mexican American 
Legislative Caucus, the Texas League of Young Vot­
ers Education Fund, and the Reverend Peter John­
son intervened as defendants in a lawsuit brought by 
the State of Texas under Section 5, concerning Tex­
as’s voter photo identification (“ID”) law. Amici suc­
cessfully helped to prevent preclearance for that re­
trogressive law.

The League of United Latin American Citi­
zens as well as the Texas NAACP intervened in Sec­
tion 5 litigation decided in 2012 concerning the redi­
stricting plans drawn by Texas based on the 2010 
Census. That case determined that Texas’s plans 
were discriminatory in purpose and effect, further 
demonstrating the continued need for Section 5.

The South Carolina State Conference of the 
NAACP, The Family Unit, Inc., Dr. Brenda Wil­
liams, and Kenyda Bailey were all intervenors in 
Section 5 litigation concerning South Carolina’s pho­
to ID law, which was found to have a potentially re­
trogressive effect, but was saved by a mitigating con­

1

This amicus curiae brief is submitted pursuant to the 
parties’ consents on file with the Court. No counsel for a party 
authored this brief in whole or in part, and no party or their 
counsel made any monetary contribution intended to fund the 
preparation or submission of this brief.



2

struction of the law taken by South Carolina officials 
as a direct result of the Section 5 case.

The Florida State Conference of the NAACP, 
Sharon Carter, Howard Harris, and Dianne Hart in­
tervened in the preclearance litigation regarding 
Florida’s early voting procedures. This litigation 
enabled Florida to implement changes to its voting 
procedures in a nondiscriminatory manner.

As individuals and organizations representing 
minority voting groups that are expressly protected 
by the VRA, Amici have a substantial interest in this 
matter. Should Section 5 of the VRA be held uncons­
titutional, they would stand to lose a crucial safe­
guard against measures that disproportionately bur­
den racial and language minorities’ right to vote.

SUMMARY OF ARGUMENT

The enactment of the VRA represented a mo­
numental turning point in “the struggle to end dis­
criminatory treatment of minorities who seek to ex­
ercise one of the most fundamental rights of our citi­
zens: the right to vote.” Bartlett v. Strickland, 556 
U.S. 1, 10 (2009). As Congress recognized in over­
whelmingly reauthorizing the VRA in 2006, the law 
is largely responsible for the effective transformation 
of America into a broadly inclusive democracy. See 
generally H.R. Rep. No. 109-478, at 12-18 (2006). To 
be sure, “[tlhings have changed in the South.” Nw. 
Austin Mun. Utility Dist. No. One v. Holder, 557 
U.S. 193, 202 (2009). “ [M]any of the first generation 
barriers to minority voter registration and voter tur­
nout that were in place prior to the [VRA] have been 
eliminated.” H.R. Rep. No. 109-478, at 12.

But not all things have changed. Rather, “vot­
ing discrimination in covered jurisdictions” remains



3

a “21st century problem.” Shelby Cnty., Ala. v. 
Holder, 679 F.3d 848, 857 (D.C. Cir. 2012) (quoting 
Shelby Cnty., Ala. v. Holder, 811 F. Supp. 2d 424 
428 (D.D.C. 2011)).

Petitioner and various amici assert that juris­
dictions covered under Section 5 no longer engage in 
“pervasive voting discrimination and electoral ga­
mesmanship.” Pet’r Br. 28. While it is true that 
progress has been made and that the specific me­
thods of voting discrimination in place in 1965—such 
as poll taxes, literacy tests, and grandfather claus­
es—are no more, that is not the whole story. Indeed, 
Congress determined in 2006, that while 
[discrimination [in voting] today is more subtle 

than the visible methods used in 1965 . . . the effects 
and results are the same.” H.R. Rep. No. 109-478 at 
6.

Petitioner’s claims to the contrary are utterly 
belied by the four cases decided under Section 5 in 
2012 (the “2012 cases”). These cases confirm that, 
while the particular methods of discrimination have 
taken new and more subtle forms, they persist! and 
therefore Section 5 remains “justified by current 
needs.” Nw. Austin, 557 U.S. at 203.

Two of the 2012 cases involved the State of 
Texas, a covered jurisdiction with a long and sad his­
tory of discrimination in voting. In 2012, a unanim­
ous three-judge panel found that Texas’s three redi­
stricting plans were either discriminatory in purpose 
or effect or both. Just two days later, another three- 
judge court unanimously determined that Texas’s 
photo ID law would have a retrogressive effect on 
Black and Latino voters. In these two cases, Section 
5 prevented Texas from turning back the clock on 
minority voting rights.



4

The other two 2012 cases concerned South 
Carolina’s photo ID law and Florida’s change in ear­
ly voting hours. In those cases, Section 5 litigation 
resulted in covered jurisdictions being allowed to 
implement otherwise retrogressive laws in non- 
retrogressive ways. In the South Carolina case, the 
litigation process pushed the State to interpret the 
law in such a way that would allow individuals una­
ble to obtain photo ID to vote. In the Florida case, 
the court found that contemplated changes to Flori­
da’s early voting hours could potentially have a dis­
criminatory impact on minority voters. Rather than 
just striking down these provisions entirely, the 
court offered guidance on how the Florida law could 
be implemented in a non-retrogressive manner. 
These two cases demonstrate the flexibility of Sec­
tion 5 and show that Section 5 litigation can play a 
vital role in ameliorating the impacts of otherwise 
retrogressive laws, while allowing states and locali­
ties to pursue legitimate policy objectives.

The 2012 cases also demonstrate that the 
“current burdens” imposed by Section 5 litigation, as 
discussed by Petitioner and various amici, can be 
significantly minimized by diligent federal judges 
tightly managing the process. Indeed, these courts 
were able to achieve highly expedited results— 
despite repeated instances where the covered juris­
dictions’ recalcitrance in meeting court orders could 
have led to significant delays.

The VRA is more than adequately justified by 
current needs, and Congress acted properly in reau­
thorizing it in order to enforce constitutional guaran­
tees that remain all too threatened. Accordingly, 
this Court should affirm the decision of the Court of 
Appeals.



5

ARGUMENT

I. RECENT PRECLEARANCE LITIGATION 
SHOWS THAT SECTION 5 IS “JUSTIFIED BY 
CURRENT NEEDS”

A. This Court May Consider Post-Enactment 
Evidence In Deciding Whether Congress 
Correctly Determined That Section 5 Re­
mains Necessary

The 2012 cases are relevant in assessing the 
validity of Section 5 and may be considered even 
though they occurred after the reauthorization of the 
VRA in 2006. This approach is consistent with 
precedent. In Tennessee v. Lane, 541 U.S. 509 
(2004), this Court considered cases decided after the 
enactment of the Americans with Disabilities Act of 
1990 (“ADA”) to determine whether Title II of the 
ADA was valid. Id. at 524-25 nn.7, 11, 13 & 14. 
Likewise, in Nevada Department o f Human R e­
sources v. Hibbs, 538 U.S. 721 (2003), the Court re­
viewed legislation in effect after the enactment of 
the Family and Medical Leave Act of 1993 to assess 
whether the family-care provision of that statute 
was congruent and proportional under Section 5 of 
the Fourteenth Amendment. Id. at 733-34 & nn.6-9.

One amicus argues that Lane did not examine 
post-enactment cases with regard to the specific con­
stitutional right that was at issue there—access to 
the courts. See Br. for Reason Foundation as Am i­
cus Curiae in Supp. of Pet’r 22 (“Reason Foundation 
Br.”). That is flatly incorrect. See Lane, 541 U.S. at 
525 & n.14 (citing Layton v. Elder, 143 F.3d 469, 
470-72 (8th Cir. 1998) (mobility-impaired individual



6
excluded from a quorum court session held on an in­
accessible floor of a courthouse), and Matthews v. 
Jefferson, 29 F. Supp. 2d 525, 528, 533-34 (W.D. Ark. 
1998) (mobility-impaired individual called to court 
for full-day hearings but unable to use the restroom 
or leave the floor to obtain a meal during noon re­
cess)).

Moreover, “[i]n reviewing the constitutionality 
of a statute, ‘courts must accord substantial defe­
rence to the predictive judgments of Congress.’” 
Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180, 195 
(1997) (quoting Turner Broad. Sys., Inc. v. FCC, 512 
U.S. 622, 665 (1994) (plurality opinion)). In applying 
such deference to the review of Congress’s prediction 
in 2006 that Section 5 would still be necessary in the 
years to come, it would be absurd to require the 
Court to ignore that Congress’s prediction turned out 
to be right.2

B. The Two Cases Involving Texas Show That 
Section 5 Remains Necessary

1. The Texas Redistricting Case
Two of the 2012 cases involved the State of 

Texas, and Texas lost in both. See Texas v. United 
States, ___F. Supp. 2 d ____, No. 11-1303, 2012 WL

2 Petitioner itself pointed to the Texas and South Caroli­
na photo ID cases and the Florida early voting case in its Peti­
tion for a Writ of Certiorari. See Pet. for a Writ of Cert. 19-20. 
Many amici supporting Petitioner likewise point to these cases 
in their analysis of the constitutionality of Section 5. See, e.g., 
Br. of Arizona et al. as Amici Curiae in Supp. of Pet’r (“Arizona 
Br. ) 22-23 (South Carolina photo ID case)! Br. of Former Gov­
ernment Officials as Amici Curiae in Supp. of Pet’r (“Former 
Officials Br.”) 19-22 (South Carolina and Texas photo ID cases; 
Florida early voting case); Br. of State of Texas as Amicus Cu­
riae in Supp. of Pet’r (“Texas Br.”) 3-25 (Texas photo ID case).



7

3671924, at *37 (D.D.C. Aug. 28, 2012) (“ Texas Redi- 
strictin f), appeal docketed, No. 12-496 (U.S. Oct. 19,
2012); see also Texas v. H older,___F. Supp. 2d ___ ,
No. 12-128, 2012 WL 3743676, at *1 (D.D.C. Aug. 3o’ 
2012) (“ Texas ID ’), notice o f appeal filed  (D.D.C. Dec. 
19, 2012). In its amicus brief, Texas focuses almost 
entirely on the 2012 photo ID case, see Texas Br. 3- 
25, but never even mentions that, just two days be­
fore that case was decided, another three-judge pan­
el rejected Texas’s redistricting plans, finding that 
the State’s Congressional and State Senate plans 
were intentionally discriminatory and that the 
State s Congressional and State House plans would 
have a retrogressive effect. See Texas Redistricting, 
2012 WL 3671924, at *37. The court also expressed 
grave doubts about Texas’s commitment to protect­
ing the rights of non-Anglo voters. See id. Indeed, 
as that court noted, “[i]n the last four decades, Texas 
has found itself in court every redistricting cycle, 
and each time it has lost.” Id. at *20.3 Thus, the 
most recent Texas redistricting case demonstrates 
why Section 5 remains amply “justified by current 
needs.” Nw. Austin, 557 U.S. at 203.

In August 2012, following a 10-day trial, a 
three-judge panel declined to preclear Texas’s redi­
stricting plans. Texas Redistricting, 2012 WL 
3671924, at *2. The court unanimously found that 
Texas’s Congressional redistricting plan was enacted 
with a discriminatory intent. Id. at *21. The court 
noted that the Texas legislature had engaged in

See, e.g., League o f United Latin Am. Citizens v. Perry, 
548 U.S. 399 (2006); Bush v. Vera, 517 U.S. 952 (1996); Upham 
v- Seamon, 456 U.S. 37 (1982); White v. Weiser, 412 U.S. 783 
(1973); White v. Regester, 412 U.S. 755 (1973); Terrazas v. 
Slagle, 789 F. Supp. 828 (W.D. Tex. 1992), affd  sub nom., Ri­
chards v. Terrazas, 505 U.S. 1214 (1992).



8

“substantial surgery” in order to remove key econom­
ic generators, such as hospitals, universities, sports 
centers, and even Congressional district offices, from 
the districts of Black and Latino members of Con­
gress. Id. at *19. In contrast, “ [n]o such surgery was 
performed on the districts of Anglo incumbents.” Id. 
at *20.

Texas offered two explanations for this pat­
tern, neither of which the court found remotely 
plausible. Id. First, the State argued that the re­
moval of economic engines and district offices from 
the districts of Black and Latino lawmakers was a 
mere “coincidence.” Id. But as the court found, “ [i]t 
is difficult to believe that pure chance would lead to 
such results.” Id. Texas also asked the court to be­
lieve that “the mapdrawers did not know where 
[Congressional] district offices were located.” Id. 
But the court saw this explanation as the mere 
smoke screen that it was. See id. (“We are confident 
that the mapdrawers can not only draw maps but 
read them, and the locations of these district offices 
were not secret.”).

The court found that these actions “alone” 
could support a finding of discriminatory intent as 
they were “unexplainable on grounds other than 
race.” Id. (quoting Vill. o f  Arlington Heights v. M e­
tro Hous. Dev. Corp., 429 U.S. 252, 266 (1977)). In 
determining the legislature’s intent, however, the 
court also looked to Texas’s record of defying the 
VRA in redistricting, and the fact that Black and La­
tino members of Congress “were excluded completely 
from the process of drafting new maps, while the 
preferences of Anglo members were frequently soli­
cited and honored.” Id. at *20, 21. “[T]he totality of 
th[is] evidence” demonstrated that the Congressional



9

plan had been “enacted with discriminatory intent.” 
Id. at *21.

In addition to finding discriminatory purpose, 
the court determined that Texas’s Congressional re- 
districting plan would have a retrogressive effect. 
Id. at *17-18. The court noted that under the status 
quo, there already existed a “representation gap” be­
tween the number of minority Congressional dis­
tricts in Texas and the number of minority districts 
that would exist if districts were allocated propor­
tionally to the population. Id. at *18. In turn, the 
court determined that the enacted plan would in­
crease this “representation gap” by one Congression­
al district. Id. at *17-18. The court emphasized that 
a state may not “undoD or defeat Q the rights recent­
ly won by minorities by increasing the degree of dis­
crimination.” Id. at *18 (internal citation and quota­
tion marks omitted). Texas’s enacted plan would 
have done just that. Id.

One of the most egregious aspects of Texas’s 
Congressional plan involved Congressional District 
23. See id. at *15-16. In LULAC v. Perry, 548 U.S. 
399 (2006), a case decided shortly before Congress 
reauthorized the VRA, this Court specifically re­
jected Texas’s attempt to dilute the Latino vote in 
that district. Id. at 442. In a strongly worded deci­
sion, this Court observed that “District 23’s Latino 
voters were poised to elect their candidate of choice,” 
and that Texas was trying to “t[ake] away [that] op­
portunity because Latinos were about to exercise it.” 
Id. at 438, 440. In view of “the long history of dis­
crimination against Latinos and Blacks in Texas,” 
this Court found that Texas’s actions “More] the 
mark of intentional discrimination” and could not be 
sustained. Id. at 439, 440 (citation and internal quo­
tation marks omitted).



10

Sadly, following this Court’s decision, Texas 
tried once again to undermine the political participa­
tion of Latino voters in Congressional District 23. 
The district court in the 2012 Section 5 case found 
that Texas “consciously replaced many of the dis­
trict’s active Hispanic voters with low-turnout His­
panic voters.” Texas Redistricting, 2012 WL at 
3671924, at *16. In other words, the State tried to 
“maintain the semblance of Hispanic voting power in 
the district while decreasing its effectiveness.” Id. 
Just as this Court did in 2006, the district court re­
jected Texas’s attempt “to create the facade of a La­
tino district,” LULAC, 548 U.S. at 441, finding that 
it was a thinly veiled attempt “to reduce Hispanic 
voters’ ability to elect.” See Texas Redistricting, 
2012 WL 3671924, at *16.

With respect to the State Senate plan, specifi­
cally Senate District 10, the court also found credible 
evidence showing that the Texas legislature inten­
tionally sought to weaken the Black and Latino vote. 
Id. at *26. Among other things, the court found that 
“the legislature deviated from typical procedures and 
excluded minority voices from the process even as 
minority senators protested that section 5 was being 
run roughshod.” Id. Texas “made no real attempt” 
to refute defendants’ claims of intentional discrimi­
nation. Id. As a result, the court was compelled to 
“conclude that the Senate Plan was enacted with 
discriminatory purpose as to [Senate District] 10.” 
Id.

Finally, the court denied preclearance to the 
State House plan because of its retrogressive effect, 
finding that Texas’s enacted plan would have the ef­
fect of abridging minority voting rights in four “abili­
ty districts,” without creating any new ability dis­
tricts to offset this loss. Id. In contrast to its find­



11

ings with respect to Texas’s Congressional and State 
Senate plans, the court stopped just short of formally 
finding that Texas’s State House plan was motivated 
by discriminatory intent. Id. at *36. Nevertheless, 
the court observed that, “at minimum, the full record 
strongly suggests that the retrogressive effect [of the 
State House plan] may not have been accidental.” 
Id. at *37. The court noted that the legislature had 
adopted “a deliberate, race-conscious method to ma­
nipulate . . . the Hispanic vote,” and found evidence 
“suggesting] that Texas had something to hide in 
the way it used racial data to draw district lines.” 
Id. (emphasis omitted).

2. The Texas Photo ID Case
Repeatedly, Petitioner and its supporting ami­

ci also point to Texas’s attempt to implement the 
most restrictive voter ID law in the country as an 
example of Section 5 fostering an improper intrusion 
on federalism. See Pet. for Writ of Cert. 19-20; For­
mer Officials Br. 19-21; Texas Br. 3-25. To the con­
trary, the Texas photo ID case demonstrates precise­
ly why the protections of Section 5 are still needed.

Because of Section 5, Texas was stopped from 
implementing a statute that “will likely have a re­
trogressive effect” on minorities’ right to vote. Texas 
ID, 2012 WL 3743676, at *1. This finding of retro­
gression was based on the uniquely restrictive na­
ture of Texas’s law, “the most stringent [voter ID 
law] in the country,” id. at *33, and the undisputed 
record evidence specific to Texas’s circumstances. 
See id. at *14.

In this context, although Petitioner and sup­
porting amici repeatedly claim that Section 5 
stopped Texas from implementing a law that non- 
covered states may implement, see, e.g.. Former Of­



12

ficials Br. 19-21, that is simply not the case. Texas’s 
proposed photo ID law, SB 14, is significantly more 
restrictive than that of any other State, including 
the Indiana statute adjudicated in Crawford v. M a­
rion County Election Board, 553 U.S. 181 (2008), a 
case decided without a well-developed record as to 
how many voters (or which ones) would be affected 
by the ID law, see id. at 200, and the Georgia statute 
precleared by the Attorney General.4 See Texas ID, 
2012 WL 3743676, at *26, 33. Other covered states, 
including Arizona, Louisiana, Michigan, New Hamp­
shire, and Virginia, have also successfully adopted 
voter ID requirements less restrictive than Texas’s 
without any objection by the Attorney General. Fed­
eral Resp’t Br. 44.

As the court indicated, had Texas simply 
adopted some of the very provisions found in the 
laws of other states, its request for preclearance 
might have been granted.5 See Texas ID, 2012 WL

4 While Indiana’s law permits the use of any federal or Indiana 
ID with an individual’s name, photograph, and an expiration 
date after the most recent general election, see Ind. Code Ann. 
§ 3-5-2-40.5(a), Texas’s law would have permitted the use of 
only the following photo IDs: a driver’s license, election ID cer­
tificate, personal ID card, license to carry a concealed handgun 
issued by the Texas Department of Public Safety, a United 
States passport, or United States military ID card, all of which 
must be current or not expired earlier than 60 days before the 
election, or a United States citizenship certificate. Tex. Elec. 
Code § 63.0101. Similarly, Texas’s law would have permitted 
fewer forms of ID than Georgia’s, which allows the use of photo 
ID issued by any state or federal entity authorized to issue ID, 
as well as a tribal ID. Ga. Code Ann. § 21-2-417(a). Also unlike 
Texas’s law, Georgia’s permits the use of expired drivers’ li­
censes. Id.



13

3743676, at *32-33. Instead, Texas pushed the 
envelope by proposing a retrogressive law that the 
court condemned as “almost certain” to disproportio­
nately affect racial minorities by “imposing] strict, 
unforgiving burdens on the poor.” Id. at *33.

The purported discrepancy between the result 
in Crawford and that in Texas does not raise the 
specter of federalism concerns suggested by Petition­
er and its supporting amici. First, there is a fun­
damental difference between Texas and Indiana. 
Texas has a well-documented history of flagrant vot­
ing discrimination; Indiana does not. Second, there 
is no inconsistency in the result between Crawford 
and Texas because the ultimate issue determined in 
Texas was not decided in Crawford, which involved a 
facial challenge to the constitutionality of a voter ID 
law without reference to its potentially discriminato­
ry effect. See id. at *12-13. Finally, to the extent 
that Crawford instructed on two issues involved in 
Texas, the district court in Texas followed Craw­
fords guidance. Id. at *12. The court adhered to 
Crawfords ruling that the purpose of curtailing in- 
person voter fraud was a legitimate state interest 
even without any evidence of in-person voter fraud. 
Id. The district court also followed Crawfords ruling 
that the inconvenience of making a trip to a motor 
vehicle facility, in and of itself, does not qualify as a 
substantial burden on the right to vote. Id. at *13. 5

5 Specifically, the Texas legislature tabled or defeated amend­
ments that would have waived all fees for indigent persons who 
needed the underlying documents to obtain an election ID cer­
tificate (as does Georgia), expanded the range of acceptable ID 
by allowing voters to present Medicare ID cards at the polls (as 
do Georgia and Indiana), and allowed indigent persons to cast 
provisional ballots without photo ID (as does Georgia). See 
Texas ID, 2012 WL 3743676, at *33.



14

But Petitioner and its supporting amici would 
have Crawford stand for the much broader proposi­
tion that any type of voter ID law is immune from 
challenge, no matter what its terms, no matter if it 
has an illegitimate purpose as well as a legitimate 
purpose, and no matter what the actual proof is of its 
potential discriminatory impact. See, e.g., Former 
Officials Br. 19-21. Nothing in Crawford suggests 
that result, and, as explained by the court in the 
Texas ID case, Crawfords discussion as to the in­
substantiality of the burden of the Indiana law on 
“most” voters cannot be expanded into a finding as to 
“all” voters, and Crawford specifically did not ad­
dress whether the burdens fell disproportionately on 
minorities. Texas ID, 2012 WL 3743676, at *13.

In Texas ID, the court found that the burdens 
of obtaining the required ID would weigh most heav­
ily on poor Texans, who are disproportionately racial 
minorities. Id. at *26.6 These burdens were suffi­
ciently significant to convince three federal judges to 
find that, in 2011, a covered jurisdiction had enacted 
a law, which, if implemented, would have discrimi­
nated against minorities in the exercise of their vot­
ing rights. Id. In this regard, the court did not 
merely rely on Texas’s failure to shoulder its burden 
of proof under Section 5 to show a lack of discrimina­

6 Specifically, the court found that these burdens include trav­
eling to motor vehicle facilities over 200 miles away roundtrip 
(one-third of Texas counties do not have such facilities, and 
many facilities have limited hours); and paying significant 
sums to obtain documents such as a birth certificate necessary 
to get a driver’s license or the election ID certificate supposedly 
provided for “free” under the proposed law. Texas ID, 2012 WL 
3743676, at *15-16. In Georgia, by contrast, the required ID 
can be obtained in every county. Ga. Code Ann § 21-2-417.l(a). 
Moreover, the documents necessary to obtain the free Georgia 
voter ID include those that are costless. See id. § 21-2-417.l(e).



15

tory effect. See id. (“[T]his case does not hinge mere- 
ly on Texas’s failure to prove a negative.” (citation 
and internal quotation marks omitted)). Rather the 
court expressly found that “in fact, record evidence 
demonstrates that, if implemented, SB 14 will likely 
have a retrogressive effect” on Latino and Black vot­
ers. Id. at *1.7

C. Section 5 Ameliorated The Potentially Dis­
criminatory Effects Of Laws In South Car­
olina And Florida

While the two Texas 2012 cases demonstrate 
the necessity of the preclearance process to address 
laws that are discriminatory in purpose or effect, the 
other two 2012 cases show that Section 5 is flexible 
and may enable otherwise retrogressive laws to be 
ameliorated such that they can be implemented in a 
non-retrogressive manner.

1. The South Carolina Voter ID Case

7 Because it found discriminatory effect, the court did not reach 
the issue of discriminatory purpose, Texas ID, 2012 WL 
3743676, at *32, of which there was substantial evidence, in­
cluding (l) the implementation of extraordinary legislative pro­
cedures to pass the law, such as the abandonment of the estab­
lished two-thirds rule in the Texas Senate, (2) the increasingly 
restrictive evolution of the law, despite express knowledge of 
its potential discriminatory impact; (3) the summary rejection 
of dozens of amendments which would have ameliorated that 
impact; (4) the anti-immigrant rhetoric associated with the bill; 
and (5) the use of pretextual arguments, most notably that the 
law would have prevented prior instances of alleged voter 
fraud. See Attorney General’s Proposed Findings of Fact and 
Conclusions of Law at 24-48, 63-71, Texas v. Holder, No. 12-128 
(D.D.C. June 25, 2012), ECF No. 223; Defendant-Intervenors’ 
Proposed Supplemental Non-Duplicative Findings of Fact and 
Conclusions of Law at 23-40, Texas v. Holder, No. 12-128 
(D.D.C. June 27, 2012), ECF No. 241.



16

The South Carolina case concerned Act R54, 
that State’s newly enacted photo ID law. South Car­
olina v. United S ta tes,___F. Supp. 2 d ____, No. 12-
203, 2012 WL 4814094, at *1 (D.D.C. Oct. 10, 2012). 
With regard to the 178,000 voters in South Carolina 
that would be affected by R54,8 the three-judge panel 
determined that the law could have a retrogressive 
effect because far fewer Blacks in South Carolina 
possessed acceptable forms of ID than whites. Id. at 
*8. The court determined “[t]hat racial disparity, 
combined with the burdens of time and cost of trans­
portation inherent in obtaining a new photo ID card, 
might have posed a problem for South Carolina’s law 
under the strict effects test of Section 5 Id.

The law was saved, however, when, at trial, 
State officials offered a broad reinterpretation of 
R54’s “reasonable impediment” provision. Id. at *4- 
5. Under this interpretation, “all citizens may still 
vote with [a] non-photo voter registration card, so 
long as they state the reason for not having obtained 
a photo ID.” Id. at *9; see also id. at *11 (“So long as 
the reasonable impediment affidavit is properly 
completed and actually lists a reason for not obtain­
ing a photo ID, the affidavit generally ‘will be 
deemed to speak for itself and the ballot must be 
counted.” (quoting Op. S.C. Att’y Gen., Aug. 16, 
2011, 2011 WL 3918168, at *4)). Any alteration of 
this interpretation by the state would again require 
preclearance. Id. at *19-20.

Thus, as Judge Bates wrote in his concurrence 
(joined by Judge Kollar-Kotelly), R54 (as precleared 
by the court) was not the same law passed by the 
South Carolina legislature. Id. at *21 (Bates, J.,

8 See South Carolina v. United States, No. 12-203 
(D.D.C. Apr. 26, 2012) (Bates, J., concurring), ECF No. 64.



17

concurring). The Section 5 process enabled South 
Carolina to implement a photo ID law that otherwise 
would have disproportionately disenfranchised mi­
nority voters in a way that ensured that it would not 
have such an effect. See id. As Judge Bates put it:

[0 ]ne cannot doubt the vital function 
that Section 5 of the Voting Rights Act 
has played here. Without the review 
process under the Voting Rights Act,
South Carolina’s voter photo ID law 
certainly would have been more restric­
tive.

Id.

In addition, South Carolina demonstrates the 
powerful deterrent effect of Section 5. At trial, cer­
tain South Carolina legislators testified that the 
“reasonable impediment” provision and the overall 
structure of the law were meant to help ensure prec­
learance. See id. at *4 (opinion of the court). Accor­
dingly, “the history of Act R54 demonstrates the con­
tinuing utility of Section 5 . . .  in deterring proble­
matic, and hence encouraging non-discriminatory, 
changes in state and local voting laws.” Id. at *22 
(Bates, J., concurring). Indeed, Congress took this 
deterrent effect into account in reauthorizing the 
VRA, finding that “the deterrent effect of Section 5 is 
substantial.” See H.R. Rep. No. 109-478, at 24; see 
also Shelby Cnty., 679 F.3d at 870-72 (summarizing 
Congressional findings as to Section 5’s deterrent 
effect).

2. The Florida Early Voting Case
The fourth 2012 case concerned Florida’s early 

voting statute, which a three-judge panel determined 
could not be precleared because of its potentially dis-



18

criminatory impact on Black voters. Florida v. Unit­
ed States, ___F. Supp. 2d___ , No. 11-1428, 2012 WL
3538298, at *2 (D.D.C. Aug. 16, 2012).

The new law reduced the total number of days 
available for early voting and gave county election 
officials broad discretion to determine the number of 
early voting hours for each day, within a statutory 
range. Id. at *16. As a result, the new statute al­
lowed the number of early voting hours to be cut by 
as much as half from that which was available under 
the prior law. Id.

The court found that offering the minimum 
number of early voting hours under the new law 
would have a retrogressive effect. Id. at *17. In­
deed, because the rate at which Blacks used early 
voting could be as high as twice that of whites—54% 
of Black Floridians voted early in 2008—the new 
statute undoubtedly had significant potential for a 
discriminatory effect. Id. at *17—18. The court was 
also concerned that a reduction in early voting days 
could lead to “substantially increased lines, over­
crowding, and confusion at the polls,” which would 
further disproportionately discourage Blacks from 
voting. Id. at *24. Florida failed to submit any evi­
dence to show that “given a menu of possible hours, 
its covered counties will choose nonretrogressive 
ones.” Id. at *22. As a result, the court found that 
the statute could have a discriminatory effect and 
denied preclearance. Id. at *17.

As in South Carolina, however, the Section 5 
process led to a result in which an otherwise retro­
gressive law ultimately could be implemented in a 
nondiscriminatory manner. Specifically, the court 
offered guidance to Florida, holding that “if Florida 
and the covered counties were to submit a preclear­



19
ance plan that offered early voting for 12 hours per 
day, from 7 a.m. to 7 p.m. over an 8'day early voting 
period, including one previously-unavailable Sunday, 
they would likely satisfy the burden of proving that 
the overall effect of the early voting changes would 
be nonretrogressive . . . Id. at *30.

In response, Florida submitted a revised early 
voting plan that took into account the court’s guid­
ance, and the Attorney General promptly precleared 
the State’s plan. See United States’ Notice to the 
Court, Florida v. United States, No. 11-142 (D.D.C. 
Sept. 19, 2012), ECF No. 161.

k k k

Whether in cases involving blatant discrimi­
nation (such as the Texas cases) or cases concerning 
potentially retrogressive laws that required judicial 
intervention in order to achieve a balanced, miti­
gated result (such as the Florida and South Carolina 
cases), the 2012 cases rebut Petitioner’s claim that 
Section 5 is no longer justified by current needs. Ra­
ther, as determined by four unanimous three-judge 
panels in 2012, minority voters in Texas, South Car­
olina, and Florida recently faced the very real possi­
bility of moving backwards in their hard-won 
progress as a result of decisions made by state legis­
lators. Section 5 prevented that result.
II. THE 2012 CASES SHOW THAT POTENTIAL 

BURDENS OF SECTION 5 LITIGATION CAN 
BE SIGNIFICANTLY MINIMIZED

Various amici supporting Petitioner, especial­
ly the State of Texas, discuss the “heavy burdens” 
they claim are associated with litigation under Sec­
tion 5; Texas argues that such litigation is unduly 
time-consuming, subjects legislators to inappropriate



20
discovery, allows too much leeway to intervenor par­
ties, and imposes on covered jurisdictions an “im­
possible burden.” See Texas Br. 18; see also Arizona 
Br. 24-31; Former Officials Br. 24-27. But the 2012 
cases refute those claims and demonstrate that 
courts manage Section 5 litigation in a manner con­
sistent with the federalism concerns described in 
North west A us tin.

A. The 2012 Cases Were Highly Expedited
Texas argues that the delay it faced in seeking 

adjudication of its photo ID law demonstrates that 
“the burdens that section 5 imposes on covered ju­
risdictions are severe and extraordinary.” Texas Br. 
24.

The record paints a different picture. Ever 
mindful of both efficiency and federalism concerns, 
the three-judge panel adjudicated the photo ID law 
with dispatch, and with great deference to the sove­
reign rights of Texas. Throughout the litigation, the 
court acted with “obvious urgency,” so as to permit 
“Texas’s only chance of implementing SB 14 before 
the November 2012 elections.” Texas ID, 2012 WL 
3743676, at *5. Even before the United States had 
filed an answer to Texas’s amended complaint, the 
court granted Texas’s request for an expedited sche­
dule. Texas v. Holder, No. 12-128 (D.D.C. Mar. 27, 
2012) (scheduling order), ECF No. 43. The court re­
jected the defendants’ position that a summer trial 
was infeasible, and set an accelerated case schedule, 
with 90 days of discovery, a five-day trial beginning 
July 9, and the promise of a decision by Texas’s re­
quested date of August 31. Id. Each of these dates 
was met—despite ample reasons to modify the sche­
dule occasioned by Texas’s own delays. As the court 
said:



21

It should be no surprise to Texas that 
this Court has been troubled by Tex- 
as’[s] dilatory conduct. The specific in­
stances of delay detailed in Defendants’ 
briefs—much of which is not specifically 
rebutted or contested by Texas—and 
revealed or confirmed at the May 3,
2012 hearing, has troubled this Court 
even more. . . . Based upon the record to 
date, this Court would be well within 
its discretion to continue the July 9 tri­
al date, to impose monetary sanctions 
against Texas, or to keep the July 9 tri­
al date and impose evidentiary sanc­
tions such as an adverse inference upon 
Texas.

Texas v. Holder, No. 12-128 (D.D.C. May 7, 2012) 
(order clarifying trial schedule), ECF No. 107.

Nevertheless, the court stuck to its schedule. 
As it explained, “[t]he questions under the Voting 
Rights Act presented here are too important to let 
even Texas’[s] missed discovery . . . force a change to 
the July 9 trial date.” Texas v. Holder, No. 12-128 
(D.D.C. May 22, 2012) (order denying motion to cla­
rify trial date), ECF No. 137 at f  2.

The expedited schedule adopted by the court 
was no anomaly: each of the courts that oversaw the 
2012 cases took steps to expedite the litigation.9 It is

9 The South Carolina court “set an extremely aggressive
trial schedule,” South Carolina, 2012 WL 4814094, at *19; 
South Carolina v. United States, No. 12-203 (D.D.C. May 11, 
2012) (revised scheduling order), ECF No. 67, despite the fact 
that the state engaged in “inexplicably dilatory conduct” prior 
to and during the litigation. South Carolina v. United States, 
No. 12-203 (D.D.C. Apr. 26, 2012) (Bates, J., concurring), ECF 
No. 64. The court ultimately issued its final decision in October



22

noteworthy that, as a result, all of these cases 
reached final adjudication within 8 to 13 months of 
the filing of the complaint, well short of the median 
time for civil cases generally, despite the complexity 
of voting rights cases. See Admin. Office of the U.S. 
Courts, Judicial Business o f the United States 
Courts 156 (2011) (median time interval in fiscal 
2011 from filing to post-trial judgment in civil cases 
was 23.4 months).

2012, only eight months after the commencement of the litiga­
tion. See South Carolina, 2012 WL 4814094, at * *1. The court 
in the Texas redistricting case also sought to accommodate 
Texas’s desire to implement its redistricting plans for the No­
vember 2012 elections. Texas sought a final decision before 
November 12, 2011, the first date on which the candidates 
could register to run for election. Plaintiffs Motion to Expe­
dite, Texas v. United States, No. 11-1303 (D.D.C. Aug. 8, 2011), 
ECF No. 10. Hewing to that request, the court issued a sche­
duling order that contemplated the possibility of a resolution of 
the case by that date. See Texas v. United States, No. 11-1303 
(D.D.C. Sept. 22, 2011) (scheduling order), ECF No. 51. After 
denying Texas’s summary judgment motion on November 8, 
2011, the court set trial for January 2012 and ultimately ren­
dered its final decision in August 2012, about thirteen months 
after the case began. Texas Redistricting, 2012 WL 3671924, at
*1-2. Florida asked the court that oversaw the early voting lit­
igation to expedite the matter—specifically, to decide the case 
by early January 2012, in advance of the State’s preferential 
presidential primary. See Florida v. United States, 820 F. 
Supp. 2d 85, 88-89 (D.D.C. 2011). The court noted, however, 
that the languid pace with which Florida handled the litigation 
“belie [d] Florida’s contention that expedition of this action is 
essential”—for example, Florida did not file a motion to expe­
dite until two-and-a-half months after commencing the action. 
Id. at 91. Nonetheless, the court did adopt an expedited sche­
dule for both discovery and briefing. Florida, 2012 WL 
3538298, at *50. The court ultimately issued its preclearance 
decision about twelve months after the commencement of the 
litigation. See id. at *1, 49.



23

B. Section 5 Litigation Is Faster Than Litiga­
tion Under Section 2 While Preventing 
Discriminatory Laws From Taking Effect

While addressing the burdens associated with 
Section 5 litigation, Petitioner and various amici 
urge that Section 2 is the “appropriate” remedy to 
redress discriminatory voting laws. See Pet’r Br. 20; 
Arizona Br. 27) Br. of National Black Chamber of 
Commerce as Amici Curiae in Supp. of Pet’r (“Na­
tional Black Chamber Br.”) 13"23. But litigation un­
der Section 2 is more time consuming than litigation 
under Section 5 and at the same time fails to ensure 
that discriminatory voting laws are not implemented 
prior to adjudication.

Congress had an adequate basis for finding 
that Section 2 litigation was an insufficient remedy, 
because Section 2 cases are more costly, complex, 
and time consuming—often taking more than sever­
al years to resolve10—than those brought under Sec­
tion 5. See Shelby Cnty., 679 F.3d at 872-73. In 
part, this is because, unlike Section 2, Section 5 pro­
vides for an expedited appeal directly to this Court. 
42 U.S.C. § 1973c(a); see also 28 U.S.C. § 1253.

This delay under Section 2 is compounded by 
the fact that a discriminatory law may take effect

10 See, e.g., Levy v. Lexington Cnty., S.C., No. 03- 
3093, 2009 WL 440338, at *1 (D.S.C. Feb. 19, 2009), vacated, 
589 F.3d 708 (4th Cir. 2009), remanded to 2012 WL 1229511 
(D.S.C. April 12, 2012) (9 years); Thompson v. Glades Cnty. Bd. 
o f Cnty. Comm’rs, 493 F.3d 1253, 1267, vacated, 508 F.3d 975 
(llth  Cir. 2007) (en banc) (7 years); Vander Linden v. Hodges, 
193 F.3d 268, 272 (4th Cir. 1999) (8 years); Johnson v. DeSoto 
Cnty. Bd. o f Comm’rs, 868 F. Supp. 1376, 1378 (M.D. Fla. 
1994), vacated, 72 F.3d 1556 (llth  Cir. 1996), remanded to 995 
F. Supp. 1440 (M.D. Fla. 1998), affd, 204 F.3d 1335 (llth  Cir. 
2000) (10 years).



24

during the pendency of Section 2 litigation—one of 
the most critical drawbacks of Section 2 litigation 
that Congress considered in reauthorizing the VRA. 
See Shelby Cnty., 679 F.3d at 872 (noting that, “dur­
ing the time it takes to litigate a section 2 action . . . 
proponents of a discriminatory law may enjoy its 
benefits”).

The suggestion that preliminary injunctions 
may remedy this problem, see National Black 
Chamber Br. 13'23, is not persuasive. It overlooks 
the fact that, by its nature, “a preliminary injunction 
is an extraordinary and drastic remedy.” Mazurek v. 
Armstrong, 520 U.S. 968, 972 (1997) (emphasis add­
ed) (citation and internal quotation marks omitted). 
A plaintiff must demonstrate entitlement to relief by 
a “clear showing even before discovery has begun. 
Id. And this Court has long made it clear that a pre­
liminary injunction is “never awarded as of right,” 
Winter v. Natural Res. Defense Council, Inc., 555 
U.S. 7, 24 (2008), “even though irreparable injury 
may otherwise result to the plaintiff,” Weinberger v. 
Romero-Barcelo, 456 U.S. 305, 312 (1982) (citation 
and internal quotation marks omitted).

United States v. Charleston County, 316 F. 
Supp. 2d 268 (D.S.C. 2003), illustrates this reality. 
There, the United States alleged in January 2001 
that the at-large method of electing the members of 
the Charleston County Council violated Section 2 of 
the VRA. Id. at 270. In March 2002, the United 
States moved for a preliminary injunction to prevent 
the method from being used for the November 2002 
elections, and the request was denied. Id. at 272-73. 
Following a trial on the merits, however, the court in 
2003 found that “the at-large system of election for 
the Charleston County Council unlawfully denies 
African Americans equal access to the electoral



25

process” and enjoined its use in future elections.11 
Id. at 304. Unfortunately, by that time, the Novem­
ber 2002 elections had already occurred. See id. at 
268; see also Williams v. City o f Dallas, 734 F. Supp. 
1317, 1317, 1367-68, 1415 (N.D. Tex. 1990) (finding 
after denial of preliminary injunction and trial that 
the electoral system for the Dallas City Council vi­
olated Section 2, and noting that an election had oc­
curred since the time the injunction was denied).

C. The Scope Of Discovery In Section 5 Cases 
Can Be Limited So As To Prevent Intru­
sion Into Privileged Legislative Matters

Texas argues that its state legislators were 
subjected to inappropriate questioning about their 
motives in passing the photo ID legislation. Texas 
Br. 14-15. Texas’s account ignores the great defe­
rence shown to such concerns by the court in that 
case even though Section 5 expressly requires an in­
quiry into legislative purpose.12 Mindful of “federal

11 As a part of the Section 2 analysis, the court also described 
attempts by the South Carolina legislature to alter the method 
of electing the Charleston County School Board after the 2000 
elections resulted in Blacks becoming a majority on the school 
board for the first time. Charleston Cnty., 316 F. Supp. 2d at 
290 n.23. If not for the Attorney General’s objection under Sec­
tion 5, South Carolina would have adopted “the exact same me­
thod” for the school board elections as the discriminatory one 
struck down for the County Council. Voting Rights Act: Evi­
dence o f Continuing Need•' Hearing Before the Subcomm. on 
the Constitution o f the H. Comm, on the Judiciary, 109th Cong. 
80, 84-85 (2005). Whereas the Section 2 suit had lasted four 
years, Section 5 swiftly prevented South Carolina from engag­
ing in discriminatory electoral gamesmanship. Id. at 80.

12 Notably, both Fourteenth Amendment and Section 2 litiga­
tion also contemplate inquiries into legislative intent that can 
cause similar discovery disputes. See City o f Mobile v. Bolden,



26

intrusion into sensitive areas of state and local policy 
making,” Nw. Austin, 557 U.S. at 202, the Texas 
court prohibited all discovery relating to legislative 
acts or a legislator’s motivations, other than what 
was in the public record? prohibited the discovery of 
certain communications between legislators and ex­
ecutive agencies; and shielded most evidence in pos­
session of the Lieutenant Governor, even though the 
Lieutenant Governor operates as both a legislator 
and an executive. Texas ID, 2012 WL 3743676 at 
*5-6.

Similarly, “Muring the discovery phase of [the 
Florida] case, the intervenors moved to compel depo­
sition testimony from four Florida legislators and 
two legislative staff members,” but the motion was 
denied on the grounds of legislative privilege. Flori­
da, 2012 WL 3538298, at *50! see also id. at *44 & 
n.65 (rejecting the United States’ request that the 
court draw an adverse inference from Florida’s re­
fusal to allow its legislators to be deposed).

Clearly, courts can manage discovery in Sec­
tion 5 cases while preventing intrusion into the “sen­
sitive areas” outlined in Northwest Austin.

D. Intervenors Carefully Managed By The 
Courts Played An Important Role In The 
2012 Cases

The 2012 cases also refute the suggestion that 
rampant intervention by private parties in judicial 

preclearance cases has significantly increased” the 
costs of Section 5 litigation. Former Officials Br. 24; 
see also Texas Br. 13-14. Indeed, intervenors in the 
2012 cases many of whom became parties to the

446 U.S. 55, 66 (1980); Garza v. Cnty. o f Los Angeles, 918 F.2d 
763, 766 (9th Cir.1990).



27
cases without opposition from the covered jurisdic­
tions13—played an important role in representing 
the interests of minority voters, even while operating 
under significant constraints imposed by the district 
courts.

For instance, in the Texas redistricting case, 
the United States did not object to the State Senate 
redistricting plan, but several intervenors did, ar­
guing that the plan was enacted with discriminatory 
intent. Texas Redistricting, 2012 WL 3671924, at 
*21. Following trial, the court agreed with the in­
tervenors and denied preclearance. Id. Similarly, 
the United States declined to take the position that 
one particular Congressional district was protected 
under the VRA, but several intervenors did, urging 
that, as a result, the redistricting plan would have 
an impermissibly retrogressive impact. Id. at *44 
(majority opinion). The court also agreed with the 
intervenors in that respect. Id.

In the Texas photo ID case, intervenors con­
tributed significantly to the district court’s resolu­
tion of the preclearance issues. The court’s rejection 
of Texas’s expert on discriminatory effect was based 
substantially on the testimony of the intervenors’ 
statistical expert. Texas ID, 2012 WL 3743676, at 
*23-25. In addition, the court expressly relied on the 
testimony of several other witnesses presented by

13 See, e.g., South Carolina v. United States, No. 12-203 (D.D.C. 
Mar. 20, 2012) (noting that South Carolina did not file a re­
sponse to the motion to intervene and granting the motion), 
ECF No. 10; Florida v. United States, No. 11-1428 (D.D.C. Oct. 
19, 2011) (noting that Florida did not oppose permissive inter­
vention and granting motions to intervene), ECF No. 42; Texas 
v. United States, No. 11-1303 (D.D.C. Aug. 16, 2011) (noting 
that Texas did not oppose permissive intervention and granting 
motion to intervene), ECF No. 11.



28
intervenors on the issue of the disproportionate bur­
den that the law would have on minorities. Id. at 
*27-29. Similarly, in Florida, the court relied pri­
marily on the testimony of the intervenors’ expert 
witness to find that the proposed changes would dis­
proportionately affect minorities. See, e.g., Florida, 
2012 WL 3538298, at *17, 25, 26.

Moreover, in each of these cases, the interve­
nors operated under significant constraints imposed 
by the court. For instance, the courts ordered the 
United States and intevenors to confer with each 
other throughout the litigation to determine whether 
their position on any given issue could be set forth in 
a consolidated fashion,14 required intervenors to 
work collectively and to act through a single repre­
sentative,15 and carefully managed the intervenors’ 
involvement.16

14 See, e.g., South Carolina v. United States, No. 12-203 
(D.D.C. Mar. 30, 2012) (order granting motion to intervene and 
requiring intervenors to confer with the United States prior to 
any filings to determine whether their positions can be set forth 
in a consolidated fashion), ECF No. 10; Florida v. United 
States, No. 11-1428 (D.D.C. Oct. 19, 2011) (same), ECF No. 42; 
see also Texas v. United States, No. 11-1303 (D.D.C. Sept. 30, 
2011) (paperless minute order precluding those intervenors 
who agreed with the United States on Texas’s compliance from 
filing a separate brief).

15 See, e.g., Texas v. United States, No. 11-1303, ECF No. 
51, at f  7 (order requiring the intervenors to designate one rep­
resentative to address scheduling and non-merits issues, in­
cluding all discovery disputes).

16 See, e.g., South Carolina v. United States, No. 12-203 
(D.D.C. Aug. 7, 2012) (order limiting intervenors as a group to 
five hours of live testimony at trial, in comparison to fourteen 
for the state and nine for the United States), ECF No. 155; 
Texas v. Holder, No. 12-128 (D.D.C. June 13, 2012) (order limit­



29
Indeed, it is telling that although Petitioner 

and its supporting amici reference the relatively 
large number of intervenors in these cases, they ig­
nore that in each case, all intervenors operated as a 
single unit.17

E. Covered Jurisdictions Do Not Face An 
“Impossible Burden” Under Section 5

Texas also argues that covered jurisdictions 
face an “impossible burden” under Section 5 because 
a court hearing a Section 5 case can demand “that 
the State produce evidence that is impossible to ob­
tain” or else invoke “new theories of ‘retrogression’ 
and requirte] the State to rebut them.” Texas Br. 15, 
18. Other amici complain that Section 5 is burden­
some because it requires the covered jurisdiction to 
“prove a negative” by establishing the absence of dis­
criminatory purpose. See Former Officials Br. 14! 
Br. of Cato Institute as Amicus Curiae in Supp. of 
Pet’r 5. However, the 2012 cases rebut these claims.

ing intervenors as a group to five hours of live testimony, in 
comparison to ten each for Texas and for the United States), 
ECF No. 183; South Carolina v. United States, No. 12-203 
(D.D.C. Apr. 26, 2012) (order limiting intervenors as a group to 
fewer depositions, interrogatories, and requests for admission 
than those allowed for the original parties), ECF No. 64.

17 Moreover, if the restrictions imposed by the courts on 
intervenors in the 2012 cases were somehow deemed insuffi­
cient, any burden created by the involvement of such interve­
nors does not provide a justification for striking down Section 5 
as unconstitutional. Under the Federal Rules of Civil Proce­
dure, courts have ample authority to control the conduct of in­
tervenors, such as by limiting their number and the extent of 
their involvement. See Fed. R. Civ. P. 24(b); see also Fed. R. 
Civ. P. 24 advisory committee’s note; 7C Charles Alan Wright 
et al., Federal Practice and Procedure § 1913 (3d ed. 2012).



30

Contrary to the claims of various amici, these 
courts did not invent the governing retrogression 
standard from whole cloth. Rather, they applied the 
decades-old retrogression standard first established 
by this Court in Beer v. United States- “[T]he pur­
pose of § 5 has always been to insure that no voting- 
procedure changes would be made that would lead to 
a retrogression in the position of racial minorities 
with respect to their effective exercise of the elector­
al franchise.” 425 U.S. 130, 141 (1976); see also Tex­
as ID, 2012 WL 3743676, at *32 (“For decades, 
courts have applied the Supreme Court’s longstand­
ing interpretation of section 5’s effect element . . . .”). 
South Carolina and Florida could meet that stan­
dard. Texas could not.18

In South Carolina, the court concluded that 
given its “expansive reasonable impediment provi­
sion” the State’s photo ID law would “not have a dis­
criminatory retrogressive effect on racial minorities .
. . .” 2012 WL 4814094, at *12. In fact, the court 
specifically noted that South Carolina’s showing 
with respect to the mitigating impact of that provi­
sion distinguished the case from the Texas ID case. 
See id. at *16. Likewise, in Florida, the court deter­
mined that adoption of an ameliorative early voting 
plan within the “menu” of options devised by the 
State would not be retrogressive. 2012 WL 3538298, 
at *30. These cases demonstrate that it is not im­
possible for a covered jurisdiction to establish a lack 
of retrogression.

18 Indeed, following the 2010 census, Texas was the only state 
whose statewide redistricting plans were denied preclearance 
by the Attorney General. U.S. Comm’n on Civil Rights, Redi­
stricting and the 2010 Census-' Enforcing Section 5 o f the Vot­
ing Rights A ct 28 (2012).



31
While Texas argues that there exists no pre­

cise measure of retrogression and that Section 5 is 
thus subject to the interpretive whims of the Attor­
ney General and federal judges, that argument is 
unpersuasive. With regard to the photo ID litiga­
tion, the State asks “how exactly is Texas (or any 
other State) supposed to ‘prove’ the absence of a dis­
parity in photo-identification possession?” Texas Br. 
18. But this argument ignores what actually hap­
pened in that case, which did “not hinge merely on 
Texas’s failure to prove a negative.” Texas ID, 2012 
WL 3743676, at *26 (citation and internal quotation 
marks omitted). Indeed, the Texas ID court pointed 
to substantial record evidence affirmatively demon­
strating that the photo ID law would have a dispro­
portionate and retrogressive effect on Latino and 
Black voters. Id. at *1, 26-30.

To be sure, close cases—unlike those decided 
in 2012—could raise questions about the degree of 
harm required to establish retrogression. But Peti­
tioner has brought a facial challenge and thus “can 
only succeed . . .  by establishing that no set of cir­
cumstances exists under which the [VRA] would be 
valid, i.e., that the law is unconstitutional in all of 
its applications” or that the statute lacks any “plain­
ly legitimate sweep.” Wash. State Grange v. Wash. 
State Rep. Party, 552 U.S. 442, 449 (2008) (citations 
and internal quotation marks omitted). Given the 
success of covered jurisdictions in showing non­
retrogression, Texas’s theoretical concerns about its 
ability to meet the retrogression standard do not jus­
tify striking down Section 5.

Additionally, both the South Carolina and 
Florida cases demonstrate that a jurisdiction can 
show the absence of discriminatory purpose under 
the Arlington Heights factors. See South Carolina,



32

2012 WL 4814094, at *12 (citing Arlington Heights)-, 
Florida, 2012 WL 3538298, at *39 (same). In South 
Carolina, the court found that the State acted with­
out a discriminatory purpose insofar as R54 was fa­
cially neutral; the statute was designed to achieve 
the legitimate State interests of preventing fraud 
and increasing voters’ confidence in the legitimacy of 
elections; and the legislature made ultimately fruit­
ful attempts to ameliorate the law’s discriminatory 
effect. See 2012 WL 4814094, at *12-15. Similarly, 
in Florida, the court found that a change relating to 
the casting of ballots by inter-county movers was en­
acted without a discriminatory purpose, noting that 
the State had a legitimate interest in preventing 
fraud even in the absence of evidence demonstrating 
that such fraud existed. See 2012 WL 3538298, at 
*42-46.

CONCLUSION

For the reasons set forth above, Amici urge 
the Court to affirm the judgment of the Court of Ap­
peals.

Respectfully Submitted,

M ich ael  B. de  L eeuw  
Counsel o f Record 

A d a m  M. Harris  
D euel  R oss 
V ic to r ie n  W u 
Fr ie d , Fr a n k , Ha r r is , 
Sh river  & Ja c o b so n  LLP 

One New York Plaza 
New York, NY 10004



33
Ezra  D. R osen berg  
Ran i A. Habash  
D ech ert  LLP  
Suite 500
902 Carnegie Center 
Princeton, NJ 08540-6531

Ga r y  B ledsoe  
La w  O ffice  of Ga r y  L. 
BLEDSOE & Associates 

316 West 12th St., Suite 307 
Austin, TX 78701

J ose  Ga r za
La w  O ffices  of J ose  Ga r za  
7414 Robin Rest Dr.
San Antonio, TX 98209

David  H onig
Flo rid a  State  Conference  
of Branch es  of the  
NAACP

802-4 S. Grand Highway 
Clermont, FL 34786

R obert  S. N otzon  
T he  Law  O ffice  of R obert  
N otzon  
1502 West Ave.
Austin, TX 78701



34

February 1, 2013

Luis R. Vera, Jr.
L eague  of U nited  La tin  
Am e r ic a n  Citizens  
1325 Riverview Towers 
111 Soledad
San Antonio, TX 78205-2260





AFFIDAVIT OF SERVICE

SUPREME COURT OF THE UNITED STATES 

No. 12-96
----------------------------------------------------------------------------------------------------------- x

SHELBY COUNTY, ALABAMA,

v.

Petitioner,

ERIC HOLDER, JR., AS ATTORNEY GENERAL 
OF THE UNITED STATES, ET AL.,

Respondents.

X

STATE OF NEW YORK )

COUNTY OF NEW YORK )

I, Maryna Sapyelkina, being duly sworn according to law and being over the age of 
18, upon my oath depose and say that:

I am retained by Counsel of Record for A m ici Curiae.

That on the 1st day of February, 2013, I served the within B r ie f  fo r  A m ici Curiae  
S ection  5  L itigation In ten ’en ors  in the above-captioned matter upon:

Bert W. Rein 
Wiley Rein LLP 
Attorneys for Petitioner 
1776 K Street, NW 
Washington, DC 20006 
(202)719-7000 
Brein@wilevrein.com

Debo P. Adegbile
NAACP Legal Defense & Educational Fund, Inc.
Attorneys for Respondents
99 Hudson Street, 16th Floor
New York, New York 10013
(212)965-2249
Dadegbile@naacpldf.org

mailto:Brein@wilevrein.com
mailto:Dadegbile@naacpldf.org


Jon M. Greenbaum
Lawyers' Committee for Civil Rights Under Law 
1401 New York Avenue, NW, Suite 400 
Washington, DC 20005 
(202) 662-8315
i greenbaumfailawverscommi ttee.org 

Laughlin McDonald
American Civil Liberties Union Foundation
230 Peachtree Street NW
Atlanta, GA 30303-1504
(404) 523-2721
imcdonald@,aclu.org

Donald B. Verrilli, JR.
Solicitor General
United States Department of Justice 
950 Pennsylvania Avenue, NW 
Washington, DC 20530-0001 
(202)514-2217
supremectbriefs@usdoi. gov

by depositing three copies of same, addressed to each individual respectively, and 
enclosed in a post-paid, properly addressed wrapper, in an official depository maintained 
by the United States Postal Service, via Priority Mail.

That on the same date as above, I sent to this Court forty copies of the within 
B r ie f  fo r  A m ici C uriae S ection  5 L itigation  ln terven ors  through the United States Postal 
Service by Express Mail, postage prepaid.

All parties required to be served have been served.

I declare under penalty of peijury that the foregoing is true and correct.

Executed on this 1st day of February, 2013.

Marvna Sapyelkina

0
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Sworn to and subscribed before me this l sl day of February, 2013.

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SUPREME COURT OF THE UNITED STATES

No. 12-96
X

Shelby County, Alabama,

Petitioner,

vs.

Eric Holder, Jr., Attorney General, et al.„

Respondents.
X

C E R TIFIC A T E  OF C O M P L IA N C E

As required by Supreme Court Rule 33.1(h), 
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