Texas v. United States Brief Amici Curiae

    No. 97-29

In  T he

Supreme Court of tf?e ^nitets States;
O ctober  Ter m , 1997

State of Texas,
Appellant,

v.
United States of America,

Appellee.

On Appeal from the United States District Court 
for the District of Columbia

Br ie f  fo r  Am ic i Curiae 
Am erican  Civil  L iberties Unio n  and 

NAACP Legal Defen se  and Educational F und , 
Inc . in  Su ppo r t  o f  Appellee

Pamela S. Karlan 
Counsel o f Record 

580 Massie Road 
Charlottesville, VA 22903 
(804) 924-7810/7536 (Fax)

Laughlin McDonald 
Neil Bradley 
Maha S. Zaki 
Cristina Correia 
American Civil Liberties 

Union Foundation 
44 Forsyth Street,

Suite 202
Atlanta, GA 30303 
(404) 523-2721

Elaine R. Jones 
Director-Counsel 
Theodore M. Shaw 
Norman J. Chachkin 
Jacqueline Berrien 
Victor A. Bolden 
NAACP Legal Defense & 

Educational Fund, Inc. 
99 Hudson Street, 16th fi. 
New York, NY 10013 
(212) 219-1900

Steven R. Shapiro 
American Civil Liberties 

Union Foundation 
125 Broad Street 
New York, NY 10004 
(212) 549-2500

Attorneys for Amici Curiae



1

Table of Contents .......................... ...........................  i

Table of Authorities .................................................. i

Interest of Amici Curiae ................. .........................  1

Summary of Argument .................................. .. 2

ARGUMENT-

I. Texas’s Proposed Cause of Action 
Undercuts the Structure of the Voting
Rights Act ............................................................. 4

II. Section 5 Contemplates That Decisions 
About Whether Preclearance is Required 
Will Be Made in the Context of Concrete
Cases ................................................................. 10

Conclusion ...............................................................  16

Table o f  Au th o rities
Page

Cases

Abrams v. Johnson,
117 S. Ct. 1925 (1997) ...........................   1

T a b l e  o f  C o n t e n t s

Page



11

Allen v. State Board of Elections,
393 U.S. 544 (1969) ...............................  2, 9, 11, 12

Better Government Association v. Department

Table of Authorities (continued)
Page

Cases (continued)

of State, 780 F.2d 86 (D.C. Cir. 1986)........... 10

Bunton v. Patterson,
393 U.S. 544 (1969)..................................... .. 11

Bush v. Vera,
116 S. Ct. 1941 (1996) ..........................................2

Casias v. Moses,
No. SA-95-CA-0221 (W.D. Tex. May 11,
1995) .............   13n

Chisom v. Roemer,
501 U.S. 380 (1991) . ................ 2

City of Boeme v. Flores,
117 S. Ct. 2157 (1997).......................... .. 4, 5, 6

City of Fairfax v. Reno,
No. 97-2212-JR (D.D.C. Oct. 21, 1997)..................6

City of Rome v. United States,
446 U.S. 156 (1980)............................................... 4

Clark v. Roemer,
500 U.S. 646 (1991)................  8



Ill

Dougherty County Board of Education v. White,
439 U.S. 32 (1978).......................................  11, 12

Hathorn v. Lovorn,
457 U.S. 255 (1982)........................ .............. 9, 14

Holder v. Hall,
114 S. Ct. 2581 (1994) .........................................  1

Houston Lawyers’ Association v. Attorney General
of Texas, 501 U.S. 419 (1991).............................. 2

Kramer v. Union Free School District,
395 U.S. 621 (1969) . .......................................... 14

McCain v. Lybrand,
465 U.S. 236 (1984)............................ .................1

NAACP v. Button,
371 U.S. 415 (1963)............................................. 2

Presley v. Etowah County Commission,
502 U.S. 491 (1992).......................................  6, 12

Reno v. Bossier Parish School Board,
117 S. Ct. 1491 (1997) . ........................ .......... .. . 1

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

Table of authorities (continued)
Page

Cases (continued)

1



IV

Shaw v. Hunt,
116 S. Ct. 1894 (1996) ......................................... 2

South Carolina v. Katzenbach,
383 U.S. 301 (1966)...... .................................  5, 9

Thornburg v. Gingles,
478 U.S. 30 (1986) ................................... .......... .. 2

United Jewish Organizations v. Carey,
430 U.S. 144 (1977)................. ................. 2

United States v. Hays,
115 S. Ct. 2431 (1995) . . . . . ___ . . . . . . _____ 1

Constitutional and Statutory Provisions

42 U.S.C. § 1973b (1994)  ................. .. 4, 6

42 U.S.C. § 1973c (1994)....................................... 4, 7

42 U.S.C. § 1973j (1994).......................... 3n

Texas Educ. Code Ann. § 39.131 
(West 1996)

Table of Authorities (continued)
Page

Cases (continued)

4, 10, 12, 13, 15



V

Page
Other Authorities

28 C.F.R. § 51.35 (1997).............................................8

S. Ct. R. 37.3 ....... .................................................  In

Pamela S. Karlan, The Rights To Vote: Some 
Pessimism About Formalism, 71 Tex. L. Rev.
1705 (1993)........................................................  15

Frank R. Parker, Jr., Black Votes Count:
Political Empowerment in Mississippi After
1965 (1990)...................................................   11

Table of Authorities (continued)



Brief for Am ici Curiae 
American Civil Liberties Union and 

NAACP Legal Defense and Educational 
Fund, Inc. in Support of Appellee

In t e r e st  o f  Am ic i Cu r ia e 1

The American Civil Liberties Union (ACLU) is a 
nationwide, nonprofit, nonpartisan organization with 
nearly 300,000 members dedicated to defending the 
principles of liberty and equality embodied in the 
Constitution and this nation’s civil rights laws. As part 
of that commitment, the ACLU has been active in 
defending the right of racial and other minorities to 
participate in the electoral process. Specifically, the 
ACLU has provided legal representation to minorities 
in numerous jurisdictions throughout the country, and 
has frequently participated in voting rights cases before 
this Court, both as direct counsel, see, e.g, Abrams v. 
Johnson, 117 S. Ct. 1925 (1997); Holder v. Hall, 114 S. 
Ct. 2581 (1994); McCain v. Lybrand, 465 U.S. 236 
(1984); and Rogers v. Lodge, 458 U.S. 613 (1982), and 
as amicus curiae, see, e.g., Reno v. Bossier Parish School 
Board, 117 S. Ct. 1491 (1997); and United States v. Hays, 
115 S. Ct. 2431 (1995).

The NAACP Legal Defense and Educational Fund, 
Inc., is a nonprofit corporation chartered by the

betters of consent to the filing of this brief have been 
lodged with the Clerk of the Court pursuant to Rule 37.3. 
No counsel for any party had any role in authoring this 
brief, and no person or entity other than the named amici 
curiae or their counsel have made any monetary 
contribution to the preparation or submission of this brief.



2

Appellate Division of the New York Supreme Court as 
a legal aid society. The Fund was established for the 
purpose of assisting African Americans in securing their 
constitutional and civil rights and this Court has 
recognized the Fund’s "reputation for expertness in 
presenting and arguing the difficult questions of law 
that frequently arise in civil rights litigation." NAACP 
v. Button, 371 U.S. 415, 422 (1963). The Fund has 
participated in many of the significant voting rights 
cases before this Court. See, e.g., Bush v. Vera, 116 S. 
Ct. 1941 (1996); Shaw v. Hunt, 116 S. Ct. 1894 (1996); 
Chisom v. Roemer, 501 U.S. 380 (1991); Houston 
Lawyers’ Association v. Attorney General of Texas, 501 
U.S. 419 (1991); Thornburg v. Gingles, 478 U.S. 30 
(1986); United Jewish Organizations v. Carey, 430 U.S. 
144 (1977); Allen v. State Board of Elections, 393 U.S. 
544 (1969).

Su m m a r y  o f  A r g u m e n t

In this case, Texas seeks to invent a new cause of 
action under the Voting Rights Act. Its proposal — to 
allow jurisdictions covered under section 5 of the Act to 
obtain a declaratory judgment that a particular change 
in state law does not affect "voting" — defies the careful 
architecture of the Voting Rights Act as a whole.

With respect to covered jurisdictions, Congress 
created two, and only two, causes of action. First, 
states or subdivisions that are covered jurisdictions may 
seek preclearance of changes in their electoral laws 
under section 5 of the Act. Second, covered 
jurisdictions may seek complete relief from the



3

obligation to seek preclearance by filing a "bailout" 
lawsuit under section 4(a) of the Act. Congress has 
required both types of lawsuits to be brought in the 
United States District Court for the District of 
Columbia ("the D.D.C.").

With respect to contested questions of coverage, 
Congress did not provide jurisdictions with the 
opportunity Texas demands here: essentially the right 
to have a federal court issue an advisory opinion 
confirming Texas’s interpretation of the Voting Rights 
Act. Rather, Congress expected that section 5 would 
be self-executing, and that federal courts would 
intervene in the state’s everyday implementation of its 
laws only if and when citizens disagreed with the state’s 
interpretation of its duties under section 5.2 The 
function of so-called "coverage lawsuits" is to determine 
whether a jurisdiction that contends that a particular 
change does not affect voting must nonetheless seek 
preclearance. These lawsuits are to be brought, not in 
the D.D.C., but in local federal district courts or state 
courts. Texas cannot circumvent this carefully designed 
scheme by creating a kind of hybrid lawsuit.

The potential doctrinal and practical difficulties 
with Texas’s proposal are illustrated by this case. First, 
as the district court recognized in dismissing the case 
on ripeness grounds, determining whether a particular 
enactment represents a change with respect to voting 
may require a searching practical evaluation of political

2Congress also gave the United States Attorney 
General the right to institute an action for "preventive 
relief." 42 U.S.C. § 1973j(d) (1994).



4

reality within a covered jurisdiction. In particular, this 
Court’s experience with laws regulating educational 
matters shows that these laws can have racially 
discriminatory effects on voting or candidacy or may 
mask racially discriminatory purposes to bring about 
such effects. Given Congress’s determination that 
racial discrimination in voting was often both a cause 
and an effect of racial discrimination within the 
educational system, Texas’s "federalism" argument rings 
especially hollow. Second, given the overall statutory 
scheme, even if Texas received the declaratory 
judgment it seeks, this would not preclude either a 
private section 5 coverage suit in a local district court 
or other litigation challenging a given implementation 
of Texas Educ. Code Ann. § 39.131(a)(7) or (a)(8) 
(West 1996). Finally, permitting jurisdictions in Texas’s 
position to bring declaratory judgment actions poses a 
significant danger of substantially increasing the 
burdens on both the D.D.C. and this Court.

Argument

I. T e x a s ’s P r o p o s e d  C a u s e  o f  A c t io n  
U n d e r c u t s  t h e  St r u c t u r e  o f  t h e  V o t in g  
R ig h ts  A c t

As this Court reiterated last Term in City ofBoeme 
v. Flores, 117 S. Ct. 2157 (1997), the preclearance 
regime established by sections 4 and 5 of the Voting 
Rights Act of 1965, 42 U.S.C. §§ 1973b, 1973c (1994), 
represents "‘Congress’ considered determination,’" 117 
S. Ct. at 2167 (quoting City of Rome v. United States, 
446 U.S. 156, 182 (1980)), about how to combat "‘the



5

blight of racial discrimination in voting, which has 
infected the electoral process in parts of our countiy for 
nearly a century’" 117 S. Ct. at 2167 (quoting South 
Carolina v. Katzenbach, 383 U.S. 301, 308 (1966)). Into 
this intricate regulatory system, in which Congress has 
successfully balanced the national constitutional 
commitment to eradicating discrimination in voting with 
states’ interests in self-government, Texas seeks to inject 
a completely unprecedented cause of action.

In 1965 — and again when it amended and 
extended the Act in 1970, 1975, and 1982 -  Congress 
established the following regime. Section 4 employs an 
objective formula to identify jurisdictions with a history 
of depressed voter turnout and the use of 
constitutionally suspect "tests or devices." Section 5 
forbids such "covered jurisdictions" from administering 
changes in any "standard, practice, or procedure with 
respect to voting" unless and until they receive federal 
approval.

Congress provided two mechanisms for obtaining 
this approval or "preclearance." First, a jurisdiction 
may seek a declaratory judgment from the D.D.C. 
Second, a jurisdiction may obtain "administrative" 
preclearance by submitting its proposed changes to the 
Attorney General of the United States. The Attorney 
General is to apply the same substantive standards that 
the district court would have used; if he or she does not 
interpose an objection within sixty days, the change may 
be implemented.

Congress recognized that the preclearance regime 
marked an "extraordinary departure" from the usual



6

relationship between the federal government and the 
states. Presley v. Etowah County Commission, 502 U.S. 
491, 500 (1992). It responded to this insight in three 
ways. First, Congress limited preclearance to "regions 
of the country where voting discrimination had been 
most flagrant" and reached only "a discrete class of 
state laws, i.e., state voting laws." Flores, 117 S. Ct. at 
2170; see, e.g., Presley, 502 U.S. at 510 ("Congress meant 
. . . what it said when it made § 5 applicable to changes 
'with respect to voting’ rather than, say, changes 'with 
respect to governance.’"). Second, the entire 
preclearance regime is only temporary; absent renewed 
congressional action, it will expire in 2007. See 42 
U.S.C. § 1973b(a)(8). Finally, Congress provided states 
and jurisdictions with an opportunity to seek a 
declaratory judgment relieving them altogether of the 
obligation to comply with section 5. The substantive 
and procedural requirements for this so-called "bailout 
action" are laid out in section 4(a)(1) of the Act. Such 
declaratory judgments can be granted only by the 
D.D.C.; they are to be heard by three-judge courts with 
direct appeal to this Court; and there are detailed 
provisions for the retention of jurisdiction and for the 
court’s ability to reopen the case in the event of 
subsequent discrimination. Bailout is available only if 
the jurisdiction can show complete compliance during 
the preceding ten years with constitutional and statutory 
protections of the right to vote as well as constructive 
efforts to provide equal access to all aspects of the 
electoral process. See 42 U.S.C. § 1973b(a)(l). See 
also City of Fairfax v. Reno, No. 97-2212-JR (D.D.C. 
Oct. 21,1997) (three-judge court) (granting a bailout to 
Fairfax, Virginia).



7

What Congress did not do was create a declaratory 
judgment action for a determination of "non-coverage." 
Congress expressly provided covered jurisdictions with 
two, and only two, forms of declaratory judgment 
action: one, under section 5 of the Act, provides for the 
approval of particular changes with respect to voting; 
the other, under section 4, relieves them of the 
obligation to comply with the preclearance requirement 
altogether. Congress did not, by contrast, make 
available the kind of declaratory judgment Texas seeks 
in this proceeding: namely, a declaration of non­
coverage of a particular type of government decision. 
The text of the statute expressly provides that covered 
jurisdictions "may institute an action" whenever they 
"enact or seek to administer" any new "voting 
qualification or prerequisite to voting, or standard, 
practice or procedure with respect to voting" 42 U.S.C. 
§ 1973c (emphasis added), not that they may institute 
an action whenever they enact or seek to administer 
any new law regardless of its subject.

What Texas is trying to accomplish here is the 
creation of a kind of hybrid cause of action in which it 
gets a partial bailout: a judicial declaration that it does 
not have to comply with section 5 with regard to a 
subset of decisions. But section 4 was deliberately 
written to permit bailout only by jurisdictions that have 
complied fully with constitutional and statutory 
protections of the right to vote for ten years, and Texas 
is undeniably not such a jurisdiction.

Nor is the absence of any congressional 
authorization for the kind of lawsuit Texas has tried to 
bring at all surprising. Covered jurisdictions enact, and



8

seek to administer, roughly 17,000 electoral changes a 
year. See Clark v. Roemer, 500 U.S. 646, 658 (1991). 
Given the likely ratio of new laws and procedures "with 
respect to voting" to new laws and procedures with 
respect to everything else state and local governments 
do, there may well be millions of changes unrelated to 
voting each year. Congress had no intention, under the 
Voting Rights Act, of interfering with the states’ 
implementation of these other laws. Nor would 
Congress have intended to saddle the D.D.C. with the 
responsibility of confirming states’ correct legal 
conclusions that particular enactments did not require 
preclearance. Congress and this Court expected that 
scrupulous "self-monitoring," Clark, 500 U.S. at 659, 
would largely determine which changes were related to 
voting and required preclearance. And the Attorney 
General has expressly provided for the possibility that 
a state might err on the side of caution and submit for 
preclearance a change that is not covered by the Act. 
The regulations governing administrative preclearance 
provide that the Attorney General will notify a 
jurisdiction "as promptly as possible and no later than 
the 60th day following receipt" of a submission if the 
submission is "inappropriate" because the changes "do 
not affect voting." 28 C.F.R. § 51.35 (1997).

Of course, although most enactments fall clearly 
inside or outside the scope of section 5, there are some 
that lie close to the line. Thus, it is possible that a state 
will reasonably conclude in good faith that a particular 
statute does not require preclearance and that either 
the Attorney General or individual citizens within the 
jurisdiction will disagree. The overall architecture of 
section 5 shows, however, that Congress has chosen a



9

very different mechanism for resolving the question 
Texas seeks to have answered. As this Court explained 
in Allen v. State Board of Elections, 393 U.S. 544,554-57 
(1969), section 5 confers upon private citizens (as well 
as the Attorney General) the right to enforce the state’s 
preclearance obligation. These "coverage" actions are 
brought in local federal district courts (or state courts, 
see Hathom v. Lovom, 457 U.S. 255, 269 (1982)), rather 
than in the D.D.C. See Allen, 393 U.S. at 558-60. The 
Court’s determination that coverage cases be tried 
locally was quite deliberate; as the Court recognized, 
individual litigants might lack the resources to litigate 
their claim that a challenged act affected voting if they 
were forced to travel to Washington. See id. at 559-60.

Texas’s lawsuit turns section 5’s commitment "to 
shift the advantage of time and inertia from the 
perpetrators of the evil to its victims," South Carolina v. 
Katzenbach, 383 U.S. at 328, on its head. Under 
Texas’s theory, it can force all individuals who can 
foresee any set of circumstances under which the 
appointment of a master or a management team might 
abridge their voting rights to litigate now, in a far-off 
forum, without the jurisdiction-specific facts that might 
show the court how a particular implementation of a 
generally innocuous statute posed a serious threat of 
racial discrimination in the election process. For 
reasons we explain in the next section, this theory is 
unavailing.



10

II. Se c t io n  5 C o n t em pla t es  T h a t  D e c isio n s  
A b o u t  W h e t h e r  P r e c l e a r a n c e  is R e q u ir e d  
W il l  Be  Ma d e  in  t h e  C o n t e x t  o f  C o n c r e t e  
Cases

As the previous section showed, Texas seeks to 
dismantle the well-developed and longstanding structure 
of section 5. The district court and the United States 
have explained why Texas’s claim is not ripe. Rather 
than repeat those arguments, this section focuses on 
two other deficiencies in Texas’s theory that also stem 
from the fact that the operation of §§ 39.191(a)(7) and 
(a)(8) has not yet "sufficiently crystallized," Better 
Government Association v. Department of State, 780 F.2d 
86, 92 (D.C. Cir. 1986), to be the subject of an 
orthodox section 5 coverage or preclearance 
proceeding. First, the lack of a concrete context may 
obscure the potential for racial discrimination in voting 
which would become evident in the course of particular 
applications of §§ 39.191(a)(7) and (a)(8). Second, 
Texas’s attempt to shoe-horn this case into the D.D.C. 
— since there is clearly no provision in the Act under 
which the state can sue in a local district court -  means 
that any judgment would be little more than an advisory 
opinion; any individual whose right to vote is affected 
by a particular implementation of the statute would 
remain free to bring a traditional section 5 coverage 
lawsuit seeking injunctive relief. These factors further 
confirm the imprudence of engrafting onto the Act a 
new cause of action for "non-coverage."

Texas’s proposed cause of action rests on the 
implicit assumption that state educational policy is 
unlikely to involve discrimination in voting. That



11

implication is belied by two of this Court’s most 
significant section 5 coverage cases. Both Allen v. State 
Board of Elections and Dougherty County Board of 
Education v. White, 439 U.S. 32 (1978), involved 
decisions ostensibly about educational policy that were 
in fact attempts to suppress minority voting strength or 
had the potential for doing so. Bunton v. Patterson, one 
of the four cases decided together in Allen, involved 
Mississippi’s decision to require eleven counties to 
appoint their county superintendent of education. See 
393 U.S. at 551. The most thorough study of voting 
rights in Mississippi during the 1960s shows that these 
counties were singled out by the state precisely because 
of a threat that black voters within them might soon 
form a majority of the electorate and thereby elect 
black school superintendents. See Frank R. Parker, Jr., 
Black Votes Count: Political Empowerment in
Mississippi After 1965, at 56-58 (1990). Similarly, 
Dougherty County involved a "personnel rule" passed by 
the County Board of Education requiring candidates for 
political office to take unpaid leaves of absence during 
the campaign. As the Court explained:

[T]he circumstances surrounding its adoption 
and its effect on the political process are 
sufficiently suggestive of the potential for 
discrimination to demonstrate the need for 
preclearance. Appellee [who was an 
administrator in the Dougherty County 
schools] was the first Negro in recent years to 
seek election to the General Assembly from 
Dougherty County, an area with a long history 
of racial discrimination in voting. Less than a 
month after appellee announced his candidacy,



12

the Board adopted Rule 58, concededly 
without any prior experience of absenteeism 
among employees seeking office.

Dougherty County, 439 U.S. at 42.

In light of Allen and Dougherty County, it is 
certainly possible to imagine circumstances under which 
a particular decision to appoint a master or a 
management team or to delegate certain powers to 
them stems from the desire to reassert white control 
over a school board whose members were elected 
primarily by minority voters. Suppose, for example, 
that the Commissioner delegates so much power to the 
master or management teams that the delegation 
”rise[s] to the level of a de facto replacement of an 
elective office with an appointive one, within the rule of 
Bunton v. Patterson." Presley, 502 U.S. at 508. That 
surely would affect voting. The very fact that Texas 
thought it necessary to provide that masters and 
management teams "may not take any action concerning 
a district election" and "may not change the number of 
or method of electing the board of trustees," Tex. Educ. 
Code Ann. §§ 39.191(e)(3), (e)(4), suggests that the 
state was well aware that masters and management 
teams might trench on voting rights if they were not 
carefully regulated. Or suppose, more invidiously, that 
a future Commissioner of Education decides which 
districts to sanction, or the relative severity of the 
sanction, by looking at whether a majority of the 
members of the board are racial or language minorities. 
If minority voters are more likely than other similarly 
situated voters to have their elected boards subjected to



13

outside intervention, this too poses the threat of 
abridging minority voting rights.

If Texas is correct that under no circumstances 
could the Commissioner of Education’s exercise of 
power under §§ 39.131(a)(7) and (a)(8) involve changes 
affecting voting, then it should simply exercise those 
powers. If individual citizens or the United States 
disagree and bring a coverage action, the action will be 
dismissed. Only if Texas is wrong, and a particular 
exercise of power under §§ 39.131(a)(7) or (a)(8) 
actually does affect voting -- and there is good reason 
for thinking Texas might be mistaken3 -  will the State 
be enjoined from implementing that change, and then 
only until it can convince the Attorney General or the 
D.D.C. that the change has neither a discriminatory 
purpose nor a discriminatory effect. Only if Texas fails 
to demonstrate that its use of its power to appoint 
masters or management teams is not in fact racially 
discriminatory will the state be permanently barred 
from implementing a change.

Stripped of its federalism rhetoric, Texas’s claim is 
that it should have the right to trade off its minority 
citizens’ federally protected voting rights in the service 
of the state Commissioner of Education’s judgments 
about good educational policy. Given the importance

'See Casias v. Moses, No. SA-95-CA-0221 (W.D. Tex. 
May 11, 1995) (granting a preliminary injunction under 
section 5 against a predecessor to § 39.131(a)(8), on the 
grounds that the plaintiffs were likely to prevail in 
showing that the appointment of a management team 
affected voting).



14

in the constitutional hierarchy of the right to vote, see, 
e.g., Kramer v. Union Free School District, 395 U.S. 621 
(1969), Congress clearly has the power to require Texas 
to pursue its educational objectives only through 
policies that respect the equal political rights of its 
minority citizens.

Texas correctly recognized that declaratory 
judgment actions brought by covered jurisdictions must 
be brought in the D.D.C. But it fails to see the 
practical implications of this requirement for the action 
it seeks to bring in this case. In a conventional section 
5 case, only the D.D.C. can decide the contested issue. 
If the D.D.C. grants a declaratory judgment, then 
section 5 drops out of the picture entirely; the 
jurisdiction is free to administer the new practice or 
procedure. If the D.D.C. denies a declaratory 
judgment, then it will issue a permanent injunction 
against the jurisdiction. Similarly, in a conventional 
bailout declaratory judgment, either the D.D.C. grants 
or denies the requested relief.

By contrast, if the D.D.C. were to entertain Texas’s 
"non-coverage" lawsuit, any declaratory judgment it 
might grant would be binding only upon the parties. 
See Hathom v. Lavom, 457 U.S. at 268 n.23 (a plaintiff 
"is not bound by the resolution of § 5 issues in cases to 
which he was not a party"). Texas cannot make 
individual voters parties to a section 5 proceeding in the 
D.D.C.; for one thing, the D.D.C. likely lacks personal 
jurisdiction over them. Thus, any judgment the D.D.C. 
might grant, even if it might preclude the United States 
Attorney General from bringing a section 5 
enforcement action in local district court, would not



15

preclude individual voters from bringing such an action. 
For this reason, it is entirely possible that a local 
district court, particularly based upon a different trial 
record, would still enjoin a particular exercise of §§ 
39.191(a)(7) or (a)(8).

Not only would this Court have mandatory 
appellate jurisdiction over the flood of "non-coverage" 
lawsuits, but it might have to hear some cases three 
times: once on an appeal from the D.D.C. over the 
non-coverage question; once on an appeal from the 
local district court on the more concretely presented 
coverage question; and perhaps again when the 
jurisdiction seeks judicial preclearance in the D.D.C. 
Further, Texas suggests no limitations upon the scope 
of the new declaratory judgment action it would engraft 
upon the Voting Rights Act. The state’s theory that it 
is entitled to preempt local enforcement actions by 
suing first in the D.D.C. could by its logic, and 
unfettered by the explicit provisions of the Act, 
conceivably apply as well to potential suits under 
section 2 of the Act (which applies nationwide and 
reaches all voting practices and procedures, regardless 
of whether they are either changes or have been 
precleared) as it does to section 5 cases. Indeed, given 
the burgeoning and duplicative litigation that seems 
now to attend the decennial census, see Pamela S. 
Karlan, The Rights To Vote: Some Pessimism About 
Formalism, 71 Tex. L. Rev. 1705, 1726-29 (1993), the 
hope of a preclusive declaratory judgment might 
encourage many jurisdictions to file such lawsuits, which 
of course would be subject to direct appeal to this 
Court. Thus, Texas’s proposal may be only the 
beginning of a wholly unnecessary jurisdictional morass.



16

Co n c l u sio n

Amici urge this Court to affirm the judgment of the 
United States District Court for the District of 
Columbia dismissing Texas’s complaint.

Respectfully submitted,

P a m e l a  S. Ka rla n  
Counsel of Record 

580 Massie Road 
Charlottesville, VA 22903 
(804) 924-7810/7536 (Fax)

La u g h l in  M cD o nald  
N e il  Br a d l e y  
M a h a  S. Z aki 
C r is t in a  C o r r e ia  
American Civil Liberties 

Union Foundation 
44 Forsyth Street 
Suite 202
Atlanta, GA 30303 
(404) 523-2721

E l a in e  R . J o n es  
Director-Counsel 
T h e o d o r e  M. Sh a w  
N o r m a n  J. C h a c h k in  
Ja c q u e l in e  A. Be r r ie n  
V ic t o r  A. B o l d e n  
NAACP Legal Defense & 

Educational Fund,Inc. 
99 Hudson Street, 16th fl. 
New York, NY 10013 
(212) 219-1900

St e v e n  R . Sh a p ir o  
American Civil Liberties 

Union Foundation 
125 Broad Street 
New York, NY 10004 
(212) 549-2500

Attorneys for Amici Curiae