Shelby County v. Holder Brief of Amici Curiae

    No. 12-96

3n m)t

S u p re m e  C o u r t of tlje GEmteb S ta te s

SHELBY COUNTY, ALABAMA,
Petitioner,

v.
ERIC H. HOLDER, JR., Attorney General, et al.,

Respondents.
--------------- « ----------------

On Petition For Writ Of Certiorari 
To The United States Court Of Appeals 
For The District Of Columbia Circuit

--------------♦--------------
BRIEF OF ARIZONA, ALABAMA, GEORGIA, 

SOUTH CAROLINA, SOUTH DAKOTA, AND TEXAS 
AS AMICI CURIAE IN SUPPORT OF PETITIONER

--------------- *----------------

Thomas C. Horne 
Arizona Attorney General
David R. Cole 
Solicitor General 
Counsel of Record
Michele L. Forney 
Assistant Attorney General
1275 W. Washington 
Phoenix, AZ 85007-2997 
(602) 542-7826 
(602) 542-8308 (fax) 
dave.cole@azag.gov 
Attorneys for Amici Curiae

[Additional Counsel Listed On Inside Cover]

COCKLE LAW BRIEF PRINTING CO. (800) 22S-6964 
OR CALL COLLECT (402) 342-2831

mailto:dave.cole@azag.gov


Luther Strange 
Attorney General 
State of Alabama 
501 Washington Avenue 
P.O. Box 300152 
Montgomery, AL 36130-0152 
(334) 242-7300
Sam Olens 
Attorney General 
State of Georgia 
40 Capital Square, SW 
Atlanta, GA 30334-1300 
(404) 656-3300
Alan W ilson
Attorney General
State of South Carolina
Rembert C. Dennis Office Building
P.O. Box 11549
Columbia, SC 29211-1549
(803)734-3970
Marty J. Jackley 
Attorney General 
State of South Dakota 
1302 East Highway 14, Suite 1 
Pierre, SD 57501-8501 
(605)773-3215
Greg Abbott 
Attorney General 
State of Texas 
Capitol Station 
P.O. Box 12548 
Austin, TX 78711-2548 
(512) 463-2100



1

TABLE OF AUTHORITIES...................................  iii
INTERESTS OF THE AMICI STATES................. 1
SUMMARY OF ARGUMENT...................................  3
ARGUMENT............................................................ 5

I. The Court of Appeals’ Decision, Which 
Upholds Section 4(b)’s Outdated Coverage 
Formula and Section 5’s Preclearance 
Requirement, Is Seriously Flawed and 
Undermines the Principle of Equal Sover­
eignty................................................................ 5
A. The Court of Appeals Erred in Finding

that Congress Had Adequate Data to 
Justify the Continued Use of the Sec­
tion 4(b) Formula......................................  7

B. Current Conditions Do Not Justify the
VRA’s Departure from the Fundamen­
tal Principle of Equal Sovereignty 
Among the States..................................  16
1. Arizona and Nevada Are Strikingly

Similar in Population Makeup, Vot­
er Registration, and Voter Turnout, 
but Are Treated Differently by the 
VRA...................................................  17

2. Several States Adopted Voter-
Identification Laws but Experienced 
Dramatically Different Treatment 
Under the VRA.................................  20

TABLE OF CONTENTS
Page



TABLE OF CONTENTS -  Continued
Page

C. The Preclearance Requirements Are
Arbitrary and Burdensome..................  23
1. Updating Alabama’s Voting Machin­

ery to Comply with the Help Ameri­
ca Vote Act of 2002 (“HAVA”) ..........  24

2. Arizona’s Decision to Close Several
Motor Vehicle Department Branch­
es .......................................................  25

D. The Prospect of Bailout for the Cov­
ered States Is Illusory........................... 26

CONCLUSION.......................................................  28



Ill

Cases

Common Cause/Georgia, League of Women 
Voters of Ga., Inc. v. Billups, 439 F. Supp. 2d 
1294 (N.D. Ga. 2006.................................................21

Crawford v. Marion Cnty. Election Bd., 553 
U.S. 181 (2008).................................................. 3, 21

Gonzalez v. Arizona, 624 F.3d 1162 (9th Cir.
2010) (en banc).................................................. 21, 22

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

Shelby Cnty. v. Holder, 811 F. Supp. 2d 424 
(D.D.C. 2011)........................................................6,26

South Carolina v. Katzenbach, 383 U.S. 301 
(1966)............................................................. 4, 11, 16

United States v. Louisiana, 363 U.S. 1 (1960)............ 6

Constitutional Provisions

U.S. Const, amend. XV..................................................6
U.S. Const, amend. XV, § 2............................................6

Statutes

42 U.S.C. § 1973b.....................................................1,8
42 U.S.C. § 1973b(a)(l).............................................. 27
42 U.S.C. § 1973b(c).................................................1,8
42 U.S.C. § 1973c................................................... 8,23

TABLE OF AUTHORITIES
Page



IV

42 U.S.C. § 15481 .......................................................24
Ariz. Rev. Stat. § 16-122............................................ 25
Nev. Rev. Stat. § 293.2699........................................ 19
Nev. Rev. Stat. § 293C.282 ....................................... 19
Nev. Rev. Stat. § 293.296.......................................... 19
S. Rep. No. 109-295 ........................................12, 14, 19

Rules

Sup. Ct. R. 37(2)(a)....................................................... 1
Sup. Ct. R. 37(4)........................................................... 1

Other A uthorities

1 U.S. Census of Population: 1960, Characteris­
tics of the Population (1964)................................... 17

152 Cong. Rec. S7981 (daily ed. July 20, 2006) 
(statement of Sen. Cornyn)........................ 11, 13, 16

152 Cong. Rec. S7983 (daily ed. July 20, 2006) 
(statement of Sen. Chambliss)............................... 15

152 Cong. Rec. S7986-87 (daily ed. July 20,
2006) (statement of Sen. Sessions).........................15

152 Cong. Rec. S7990 (daily ed. July 20, 2006) 
(statement of Sen. Coburn)..................................... 13

152 Cong. Rec. S8012 (daily ed. July 20, 2006)........12
28 C.F.R. § 51.1........................................................... 23
28 C.F.R. § 51.13(a).....................................................24

TABLE OF AUTHORITIES -  Continued
Page



V

TABLE OF AUTHORITIES -  Continued
Page

28 C.F.R. § 51.13(b)......................................................24
28 C.F.R. § 51.13(d)......................................................24
28 C.F.R. § 451.27........................................................24
Census 2000 Brief on Population Change and 

Distribution: 1990-2000, http://www.census.gov/ 
prod/200 Ipubs/c2kbr0 l-2.pdf................................ 17

Census 2000 Brief on the Hispanic Population, 
http://www.census.gov/prod/2001pubs/c2kbr01-
3.pdf......................................................................... 18

Census 2010 Brief on Population Change and 
Distribution: 2000 to 2010, http://www.census. 
gov/prod/2001pubs/c2kbr01-2.pdf........................... 17

Census 2010 Brief on the Hispanic Population, 
http://www.census.gov/prod/cen2010/briefs/..........18

Dave Leip’s Atlas of U.S. Presidential Elec­
tions , http ://uselectionatlas .org/RESULTS/.............8

Department of Justice, Section 4 of the Voting 
Rights Act, http://www.justice.gov/crt/about/vot/ 
misc/sec_4.php..........................................................10

Department of Justice, Section 5 Covered 
Jurisdictions, http://www.justice.gov/crt/about/ 
vot/sec_5/covered.php........................................10, 11

Determination of the Attorney General Pursu­
ant to Section 4(b)(1) of the Voting Rights Act 
of 1965, 30 Fed. Reg. 9897 (1965)............................. 8

Determination Regarding Literacy Tests, 35 
Fed. Reg. 12354 (1970).............................................. 8

http://www.census.gov/prod/2001pubs/c2kbr01-3.pdf
http://www.justice.gov/crt/about/


VI

Extension of the Voting Rights Act of 1965: 
Hearing Before the S. Subcomm. on Consti­
tutional Rights of the Comm, on the Judici­
ary, 94th Cong. (April 30, 1975) (Testimony

TABLE OF AUTHORITIES -  Continued
Page

of Sen. Goldwater).................................................. 8
H.R. Rep. No. 109-478 (2006)....................................13
S. Rep. No. 109-295 (2006)............................ 12, 14, 19
The Continuing Need for Section 5 Preclearance: 

Hearing Before the Senate Comm, on the Ju­
diciary, 109th Cong., 2d Sess. (May 16, 2006).......14

U.S. Census Bureau, Voting and Registration 
in the Election of November 2000, http:// 
www.census.gov/hhes/www/socdemo/voting/
publications/............................................................ 18

U.S. Census Bureau, Voting and Registration 
in the Election of November 2004, http:// 
www.census.gov/hhes/www/socdemo/.....................18

Voter Identification Requirements, National 
Conference of State Legislatures, http://www. 
ncsl.org/legislatures-elections/elections/voter- 
id.aspx...............................................................20, 21

Voting Rights Act: An Examination of the Scope 
of Criteria for Coverage Under the Special 
Provisions of the Act, 109th Cong., 1st Sess.
(Oct. 20, 2005)......................................................... 14

Voting Rights Act: Hearing Before the Sub­
comm. on the Constitution of the House 
Committee on the Judiciary, 109th Cong., 2d 
Sess. (May 4, 2006) 14

http://www.census.gov/hhes/www/socdemo/voting/
http://www.census.gov/hhes/www/socdemo/
http://www


1

INTERESTS OF THE AMICI STATES1
Under the Voting Rights Act (“VRA” or “Act”), 

there are two different classifications of States: 
covered and uncovered. Section 5 of the VRA, 42 
U.S.C. § 1973c, requires federal approval of any 
change affecting voting in Alabama*, Alaska, Arizo­
na*, Georgia*, Louisiana, Mississippi, South Caroli­
na*, Texas*, and Virginia (and every sub-jurisdiction 
within those States), and portions of California, 
Florida, Michigan, New Hampshire, New York, North 
Carolina, and South Dakota* (collectively “Covered 
Jurisdictions”) based on the formula provided in 
Section 4(b) of the VRA, 42 U.S.C. § 1973b. This 
Court recognized that the Act imposes burdens on 
Covered Jurisdictions and “differentiates between the 
States” in a way that departs from the fundamental 
principle of equal sovereignty among States. Nw. 
Austin Mun. Util. Dist. No. One v. Holder, 557 U.S. 
193, 203 (2009). The Amici States (*), which are all 
Covered Jurisdictions substantially burdened by the 
VRA, thus have a direct and compelling interest in 
having this Court grant review to evaluate whether 
the court of appeals correctly determined that the 
VRA’s “severe remedy of preclearance remain[s] 
‘congruent and proportional’ ” (Pet. App. at 62a).

1 The Amici States gave notice of their intent to file this 
brief to counsel for the parties on August 14, 2012. See Sup. Ct. 
R. 37(2)(a). The Amici States do not need consent of the parties 
to file this brief. See Sup. Ct. R. 37(4).



2

In Northwest Austin, the only State that filed an 
amicus brief arguing that Section 5 should be de­
clared unconstitutional was Georgia. Brief of Georgia 
Governor Sonny Perdue as Amicus Curiae Supporting 
Appellant, Nw. Austin Mun. Util. Dist. No. One v. 
Holder, 557 U.S. 193 (2009) (No. 08-322). The Gover­
nor of Alabama filed an amicus brief supporting 
neither party to provide the Court with information 
regarding Alabama’s progress in voting rights and 
present anecdotal evidence regarding its experience 
under Section 5. Brief of the Hon. Bob Riley, Governor 
of the State of Alabama, Amicus Curiae Supporting 
Neither Party, Nw. Austin Mun. Util. Dist. No. One u. 
Holder, 557 U.S. 193 (2009) (No. 08-322). Several 
other States filed a brief in support of the VRA, 
arguing that the burdens imposed by Section 5 were 
not onerous and were justified by the benefits. Brief 
for the States of North Carolina, Arizona, California, 
Louisiana, Mississippi, and New York, as Amici 
Curiae Supporting Appellees, Nw. Austin Mun. Util. 
Dist. No. One v. Holder, 557 U.S. 193 (2009) (No. OS- 
322).

Since Northwest Austin, the “federalism costs, 
associated with Section 5 have only continued to 
increase while the statute’s benefits have all but 
vanished. Id. at 202. In particular, the Department 
of Justice (“DOJ”) has interpreted Section 5 to force 
the Covered Jurisdictions to spend millions of dol­
lars and thousands of attorney hours to preclear an 
ever-expanding array of laws. The most vivid exam­
ple comes from voter-identification laws: Indiana’s



3

sovereign policymakers are free to enact such re­
quirements, see Crawford v. Marion Cnty. Election 
Bd., 553 U.S. 181 (2008), but on account of DOJ’s 
administrative fiat, the equally sovereign policymak­
ers in Covered Jursidictions are not, see DOJ File 
Nos. 2011-2775 (Texas) and 2011-2495 (South Caroli­
na).

Section 5 served a noble purpose, and America is 
a freer and better place for it. But Congress’s refusal 
to amend the statute after this Court identified its 
infirmities in Northwest Austin, coupled with DOJ’s 
willful applications of Section 5, means that this 
Court is the last and only branch of the federal gov­
ernment that can defend the States’ coequal sover­
eignty. The Amici States have a common interest in 
resolving this issue now -  before the Covered Juris­
dictions have to spend still more money and time, and 
forgo still more elections without validly enacted 
state laws, on account of a statute premised on prob­
lems that are now two generations old. If this Court 
denies certiorari now, it will only delay the inevitable 
-  the increasing costs associated with preclearance 
under the VRA, the statute’s decreasing benefits, and 
the ever-increasing number of appeals that Covered 
Jurisdictions will be forced to file before Section 5’s 
inevitable demise.

SUMMARY OF ARGUMENT
In Northwest Austin, the Court noted that Sec­

tion 5’s departure from traditional notions of equal



4

sovereignty enjoyed by all of the fifty states “requires 
a showing that a statute’s disparate geographic 
coverage is sufficiently related to the problem that it 
targets.” 557 U.S. at 203. When Congress reauthor­
ized Section 5 of the VRA in 2006, it used the same 
coverage formula as previous enactments and failed 
to examine the current status of uncovered jurisdic­
tions. As the Court noted, “[t]he statute’s coverage 
formula is based on data that is now more than 35 
years old, and there is considerable evidence that it 
fails to account for current political conditions.” Id. 
The Court should grant certiorari here because the 
2006 reauthorization of the VRA’s antiquated formula 
is neither congruent nor proportional to the harm 
that the VRA was enacted to correct.

Because Section 5 applies arbitrarily to the 
Covered Jurisdictions, none of which uses discrimina­
tory tests or devices, and many of which have higher 
voter turnout, or lower disparity in minority voter 
turnout, than many of the uncovered jurisdictions, 
the Covered States are denied the fundamental 
principles of equal sovereignty and equal footing. Be­
cause the VRA’s purpose is to eradicate voting dis­
crimination for all United States citizens,2 treating 
States differently is not congruent with the Act’s 
purpose. The Amici States respect the original pur­
pose of the VRA but ask this Court to grant certiorari

“The Voting Rights Act of 1965 reflects Congress’ firm 
intention to rid the country of racial discrimination in voting.” 
South Carolina v. Katzenbach, 383 U.S. 301, 315 (1966).



5

and hold that the current enactment of Section 5 
under the pre-existing coverage formula of Section 
4(b) is unconstitutional because it is not appropri­
ately tailored to correct any current voting discrimi­
nation that may exist anywhere in the country.

ARGUMENT
I. The Court of Appeals’ Decision, Which 

Upholds Section 4(b)’s Outdated Coverage 
Formula and Section 5’s Preclearance 
Requirement, Is Seriously Flawed and 
Undermines the Principle of Equal Sover­
eignty.

The court of appeals acknowledged that Congress 
did not make a finding that “racial discrimination in 
voting was ‘concentrated in the jurisdictions singled 
out for preclearance’ ” when Congress reauthorized 
Section 5 of the VBA in 2006 under the pre-existing 
coverage formula of Section 4(b) of the VRA. (Pet. 
App. at 53a (quoting Nw. Austin, 557 U.S. at 203).) 
And the court acknowledged that the data it reviewed 
supported use of the outdated formula for only some 
of the Covered Jurisdictions. {Id. at 54a.) It nonethe­
less upheld Congress’s continued use of Section 4(b)’s 
formula by speculating that the lack of evidence of 
discriminatory practices in the Covered Jurisdictions 
arose from Section 5’s deterrent effect {id. at 42a-44a) 
and noting that bailout ensures that “section 5 covers 
only those jurisdictions with the worst records of 
racial discrimination in voting” {id. at 57a). The



6

court’s analysis is seriously flawed -  the obsolete 
formula is not linked to current conditions and there­
fore intrudes on the Covered States’ sovereignty and 
the supposed remedy of bailout is illusory. The Court 
should grant review to address the constitutionality 
of Sections 4(b) and 5 of the VEA because of signifi­
cant and unjustified burdens that the law continues 
to impose on Covered Jurisdictions.

Congress passed the VEA under the authority of 
Section 2 of the Fifteenth Amendment to enact “ap­
propriate” measures to effectuate the constitutional 
prohibition against racial discrimination in voting. 
Katzenbach, 383 U.S. at 308. Section 5 goes well 
beyond the Fifteenth Amendment’s prohibition 
against racial discrimination in voting by “placing] 
the burden on covered jurisdictions to show their 
voting changes are nondiscriminatory before those 
changes can be put into effect.” Shelby Cnty. v. Holder, 
811 F. Supp. 2d 424, 431 (D.D.C. 2011). The VEA 
thus treats some States differently “despite our his­
toric tradition that all the States enjoy ‘equal sover­
eignty.’ ” Nw. Austin, 557 U.S. at 203 (quoting United 
States v. Louisiana, 363 U.S. 1, 16 (I960)). But Sec­
tion 5’s “departure from the fundamental principle of 
equal sovereignty requires a showing that a statute’s 
disparate geographic coverage is sufficiently related 
to the problem that it targets.” Id.

This Court issued a unanimous warning regard­
ing Section 5’s constitutional infirmities:

The evil that § 5 is meant to address may no
longer be concentrated in the jurisdictions



7

singled out for preclearance. The statute’s 
coverage formula is based on data that is 
now more than 35 years old, and there is 
considerable evidence that it fails to account 
for current political conditions.

Id. at 203; see also id. at 216 (Thomas, J., concur­
ring in judgment in part and dissenting in part). 
The Court further emphasized that “[t]he Act’s pre­
clearance requirements and its coverage formula 
raise serious constitutional questions.” Id. at 204. But 
the Court remained “keenly mindful of [its] insti­
tutional role,” id. at 204, resolved the case on non­
constitutional grounds, and charged the political 
branches with fixing both the VRA’s antiquated cov­
erage formula and the blunt instrument of preclear­
ance, id. at 205-06.

But Congress has done nothing since Northwest 
Austin, and the Covered Jurisdictions continue to 
labor under a coverage formula that is now 40 years 
old. And piling error on error, DOJ has exacerbated 
the VRA’s federalism costs by broadening its interpre­
tation of Section 5 and denying preclearance to an 
ever-widening array of sovereign state prerogatives.

A. The Court of Appeals Erred in Finding 
that Congress Had Adequate Data to 
Justify the Continued Use of the Sec­
tion 4(b) Formula.

The VRA requires a jurisdiction to comply with the 
preclearance obligations if it satisfied two conditions. 
First, in 1964, 1968, or 1972, the jurisdiction must have



8

required a person to satisfy the requirements of a “test 
or device”3 in order to vote. 42 U.S.C. § 1973b. Second, 
the jurisdiction must have had -  again in 1964, 1968, 
or 1972 -  less than fifty percent of the citizens of 
voting age registered to vote, or less than fifty percent 
of the citizens in the jurisdiction voting in the then- 
most recent presidential election. 42 U.S.C. § 1973c.

Because the Act references specific years, some 
States such as Delaware remain uncovered even 
though they used a test or device prohibited by Sec­
tion 4(c) in both 1964 and 1968; because voter regis­
tration fell below fifty percent after 1972 rather than 
during that year, Delaware need not seek preclear­
ance for its laws. See Determination of the Attorney 
General Pursuant to Section 4(b)(1) of the Voting 
Rights Act of 1965, 30 Fed. Reg. 9897 (1965); Deter­
mination Regarding Literacy Tests, 35 Fed. Reg. 
12354 (1970); Dave Leip’s Atlas of U.S. Presidential 
Elections, http://uselectionatlas.org/RESULTS/ (fol­
low “1996” hyperlink; then follow “%VAP M” hyper­
link). In contrast, Arizona was not using a test or 
device in 1975, when Congress amended the Act to 
add language minorities to the coverage formula. See 
Extension of the Voting Rights Act of 1965: Hearing

f The VRA defines “test or device” as “any requirement that 
a person as a prerequisite for voting or registration for voting 
(1) demonstrate the ability to read, write, understand, or inter­
pret any matter, (2) demonstrate any educational achievement 
or his knowledge of any particular subject, (3) possess good moral 
character, or (4) prove his qualifications by the voucher of regis­
tered voters or members of any other class.” 42 U.S.C. § 1973b(c).

http://uselectionatlas.org/RESULTS/


9

Before the S. Subcomm. on Constitutional Rights of 
the Comm, on the Judiciary, 94th Cong. (April 30, 
1975) (Testimony of Sen. Goldwater, explaining that 
Arizona did not use English-only ballots in 1974 or 
thereafter). But because Arizona did not include 
Spanish in its ballots in 1964, 1968, and 1972, it 
became and remains a Covered Jurisdiction.

Because Congress never intended the preclear­
ance requirements to be permanent, fixing the de­
termination on a then-recent presidential election 
year was logical when it originally enacted the VRA. 
As time passes, however, Congress’s reasoning grows 
less justifiable.4 No jurisdiction, covered or uncovered, 
currently uses a test or device, and Covered Jurisdic­
tions are no more likely than uncovered jurisdictions 
to have low voter turnout. In eighteen of the forty-one 
States that are not Covered Jurisdictions in their 
entirety, the percentage of voting age persons who 
voted was less than fifty percent during one or more 
presidential elections since the 1982 amendment to 
the VRA: Arkansas (1988, 1996, 2000), California 
(1984, 1988, 1992, 1996, 2000), Delaware (1996), 
Florida (1984, 1988, 1996, 2000), Hawaii (1984, 1988, 
1992, 1996, 2000, 2004, 2008), Illinois (1996), Indiana

4 In addition, the successive reauthorizations of the VRA 
have rendered the notion of its enactment as a temporary 
solution to an extraordinary problem a misnomer. Congress 
originally enacted the VRA for five years in 1965. Congress 
renewed it subsequently in 1970 (for five years), then in 1975 
(for seven years), then in 1982 (for twenty-five years), and again 
in 2006 (for twenty-five years). Nw. Austin, 557 U.S. at 200.



10

(1996, 2000), Kentucky (1988, 1996), Maryland (1988, 
1996), Nevada (1984, 1988, 1996, 2000), New Mexico 
(1988, 1996, 2000), New York (1988, 1996, 2000), 
North Carolina (1984, 1988, 1996, 2000), Oklahoma 
(1988, 1996, 2000), Pennsylvania (1996), Tennessee 
(1984, 1988, 1996, 2000), Utah (1996), and West 
Virginia (1988, 1996, 2000). See Dave Leip’s Atlas, 
supra (select applicable election year on left panel 
and then select “%VAP M”). Eleven of these states 
have never been partially or fully Covered Jurisdic­
tions: Arkansas, Delaware, Illinois, Indiana, Ken­
tucky, Maryland, Nevada, Pennsylvania, Tennessee, 
Utah, and West Virginia. Compare Department of 
Justice, Section 5 Covered Jurisdictions, http:// 
www.justice.gov/crt/about/vot/sec_5/covered.php (last 
visited August 13, 2012) with Department of Justice, 
Section 4 of the Voting Rights Act, http://www. 
justice.gov/crt/about/vot/misc/sec_4.php (last visited 
August 13, 2012).

Congress made no findings concerning these 
factual anomalies when it reauthorized the Act in 
2006. This is because Congress did not engage in in- 
depth deliberations regarding the coverage formula.

This Court detailed the congressional delibera­
tions that went into the original enactment of the 
VRA:

Before enacting the measure, Congress ex­
plored with great care the problem of racial 
discrimination in voting. The House and 
Senate Committees on the Judiciary each 
held hearings for nine days and received

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


11

testimony from a total of 67 witnesses. More 
than three full days were consumed discuss­
ing the bill on the floor of the House, while 
the debate in the Senate covered 26 days in 
all.

Katzenbach, 383 U.S at 308-09.

In contrast, and despite the 12,000-plus pages of 
reports and numerous congressional hearings, Con­
gress passed the VRA’s reauthorization in 2006 on an 
expedited basis and without careful deliberation over 
the formula used to determine whether a jurisdiction 
should be covered by the Act. Senators John Cornyn5 
and Tom Coburn,6 members of the Senate Judiciary 
Committee, explained their “significant reservations” 
about this rush to renew:

Those concerns can generally be categorized 
as follows: (1) the record of evidence does not 
appear to reasonably underscore the decision 
to simply reauthorize the existing Section 5 
coverage formula — a formula that is based 
on 33 to 41 year old data, and (2) the seem­
ingly rushed, somewhat incomplete legisla­
tive process involved in passing the 
legislation prevented the full consideration of 
numerous improvements. . . . We also con­
clude that it would have been beneficial if

5 Senator Cornyn represents Texas, a Covered Jurisdiction.
6 Senator Coburn represents Oklahoma, an uncovered 

jurisdiction. See Department of Justice, Section 5 Covered 
Jurisdictions, http://www.justice.gov/crt/about/vohsec_5/covered.php 
(last visited August 13, 2012).

http://www.justice.gov/crt/about/vohsec_5/covered.php


12

the Section 4 coverage formula had been up­
dated in order to adhere to constitutional re­
quirements. . . .

S. Rep. No. 109-295 at 25-26 (2006). The Senators 
continued by stating that the formula should be 
updated to “reflect the problems where they really 
exist and where the record demonstrates some justifi­
cation for the assertion of Federal power and intru­
sion into the local and State electoral processes,” but 
noted that Congress did not take the time to have “a 
full discussion of ways to improve the Act to ensure 
its important provisions were narrowly tailored and 
applied in a congruent and proportional way.” Id. at 
33-34. After the Report was submitted and the bill 
was sent to the Senate floor, the Senate passed it 
unanimously the very next day with only a brief 
debate. 152 Cong. Rec. S8012 (daily ed. July 20, 
2006). However, the Senate Report itself notes that it 
was not provided, even in draft form, to members of 
the Senate before the floor debate. S. Rep. No. 109- 
295 at 55 (2006).

During the Senate debate, Senator Coburn again 
voiced his concerns with the rush to renew the VRA:

My point is that it is unfortunate that we in­
sisted on doing this on an expedited basis 
when the act does not expire for a year. . . . 
Because of the political nature of this bill 
and the fear of being improperly classified as 
“racist,” the bill was crafted and virtually 
passed before any Senator properly under­
stood any of the major changes. For example,



13

the bill that passed out of committee includ­
ed a finding section before any hearings were 
held. No changes to those findings were 
made.

152 Cong. Rec. S7990 (daily ed. July 20, 2006) 
(statement of Sen. Coburn). Senator Cornyn echoed 
this sentiment, opining that the hurried process 
“prohibited the kind of debate and discussion and 
perhaps amendment process that might have been 
helpful to protect the act against future legal chal­
lenges.” 152 Cong. Rec. S7981 (daily ed. July 20, 
2006) (statement of Sen. Cornyn).

Congress expressed the rationale for renewing 
the VRA with the laudable and necessary intention of 
protecting the voting rights of all citizens. See H.R. 
Rep. No. 109-478 at 6 (2006). But neither the House 
nor the Senate seriously considered modernizing the 
coverage formula to reflect current circumstances 
throughout the country.

The House Judiciary Committee, in fact, empha­
sized the strides made in the Covered Jurisdictions 
and did not discuss at any length the similar needs in 
the uncovered jurisdictions. The Committee noted the 
results from the previous incarnations of the VRA 
and summarized its findings that substantial dis­
crimination continued to exist in 2006 in the Covered 
Jurisdictions. Id. at 25. The Committee referenced 
limited anecdotal evidence that allegedly justified 
continuing preclearance obligations for some of the 
Covered Jurisdictions, but failed to include any



14

evidence in its findings concerning the rights of voters 
in uncovered jurisdictions. The House Report con­
tains no findings regarding the non-covered States’ 
population changes, voter registration and turnout, or 
record of minority individuals elected. See Voting 
Rights Act: An Examination of the Scope of Criteria 
for Coverage Under the Special Provisions of the Act, 
109th Cong., 1st Sess., at 92 (Oct. 20, 2005) (state­
ment of Hebert). Moreover, testimony showed that 
“most seem to agree that [the formula] is outdated” 
and that “this is an area that Congress should give 
serious consideration and study to.” Id. Nonetheless, 
the issue was never “addressed in any detail in the 
[Senate] hearings or in the House” and “little evi­
dence in the [legislative] record reexamines whether 
systematic differences exist between the currently 
covered and non-covered jurisdictions.” The Continu­
ing Need for Section 5 Preclearance: Hearing Before 
the Senate Comm, on the Judiciary, 109th Cong., 2d 
Sess., at 200-01 (May 16, 2006) (testimony of Pildes); 
Voting Rights Act: Hearing Before the Subcomm. on 
the Constitution of the House Committee on the Judi­
ciary, 109th Cong., 2d Sess., at 21-22 (May 4, 2006) 
(testimony of Clegg) (“[V]ery little if any evidence 
compares covered jurisdictions to noncovered jurisdic­
tions, and what comparisons there are undermine the 
bill.”).

Likewise, the Senate Judiciary Committee Re­
port barely examined the history or current record of 
voting discrimination in the uncovered jurisdictions. 
See generally, S. Rep. No. 109-295 (2006). The nearly



15

300 pages of appendices to the Report included (1) 
summaries of the reported cases or settlements 
finding discrimination against voters in the Covered 
Jurisdictions and the uncovered jurisdictions; (2) a 
summary of the evidence gathered by the House and 
Senate concerning voting discrimination; and (3) a 
discussion of the lawsuits or enforcement actions, 
statistics, and anecdotal evidence for thirty-five of the 
fifty states. Id. at 65-363. All of the Covered Jurisdic­
tions were represented by pages of discussion, while 
some of the uncovered States, such as Nebraska or 
Tennessee, had only single paragraphs of anecdotal 
evidence presented. The Report and its appendices 
presented no evidence whatsoever regarding Arkan­
sas, Connecticut, Delaware, Hawaii, Idaho, Iowa, 
Kansas, Maine, Nevada, New Hampshire, North 
Dakota, Oregon, Utah, Vermont, or West Virginia. 
The absence of evidence does not compel the conclu­
sion that there were no instances of voter discrimina­
tion in the listed states, but fortifies the claim that 
the Senate failed to collect and incorporate such 
evidence in its report.

Once the bill was sent to the floor, the Senate 
quickly passed it without engaging in meaningful 
debate regarding the outdated formula. Several Sena­
tors expressed concern, but recommended passage of 
the bill nonetheless. 152 Cong. Rec. S7983 (daily ed. 
July 20, 2006) (statement of Sen. Chambliss discuss­
ing some hesitation about leaving unaddressed the 
issue of modernizing the formula); 152 Cong. Rec. 
S7986-87 (daily ed. July 20, 2006) (statement of Sen.



16

Sessions discussing the significant progress that 
Alabama had made in eliminating voting discrimina­
tion while noting that the same could not be said of 
fourteen other jurisdictions that are not covered by 
Section 5 and noting that he “would have expected 
Congress” to take action by modernizing Section 5); 
152 Cong. Rec. S7981 (daily ed. July 20, 2006) 
(statement of Sen. Cornyn expressing a desire that 
Congress focus on “places where the problems really 
do exist and where the record demonstrates with 
some justification for the assertion of Federal power 
and intrusion into the local and State electoral pro­
cesses”).

Congress did not explore the problem of voting 
discrimination throughout the entire country, and 
therefore failed to demonstrate the “great care” that 
the Katzenbach Court required as justification for the 
“uncommon exercise of congressional power” con­
tained in thel965 version of the VRA, power that was 
permissible only due to the “exceptional conditions” 
and “unique circumstances” present in 1965.

B. Current Conditions Do Not Justify the 
VRA’s Departure from the Fundamen­
tal Principle of Equal Sovereignty 
Among the States.

When the VRA was initially enacted in 1965, 
Congress found that there was significant evidence 
of voting discrimination in the southern States. But 
the United States is a different country than it was



17

forty-seven years ago. According to the U.S. Census 
Bureau, in 1960, there were approximately 183 
million people in the country; in 2010, there were 
308.7 million people -  a 68% increase. Compare 1 
U.S. Census of Population: 1960, Characteristics of 
the Population, at xvii (1964), with Census 2010 Brief 
on Population Change and Distribution: 2000 to 2010 
at 1, http://www.census.gov/prod/2001pubs/c2kbr01- 
2.pdf. Certain regions have grown quickly while 
others have grown much more slowly. Id. As dis­
cussed below, these changes in the States’ respective 
populations have significantly changed the picture 
regarding minority representation as voters and 
elected officials. Congress failed to analyze or even 
recognize these shifts, which leaves the VRA even 
further out of step with the current circumstances in 
this country.

1. Arizona and Nevada Are Strikingly 
Similar in Population Makeup, Vot­
er Registration, and Voter Turnout, 
but Are Treated Differently by the 
VRA.

According to the 2000 and 2010 censuses, Nevada 
is by far the fastest growing State in the country, 
while Arizona is the second fastest. Census 2000 Brief 
on Population Change and Distribution: 1990-2000 at 
3, http://www.census.gov/prod/200Ipubs/c2kbr01-2.pdf; 
Census 2010 Brief on Population Change and Distri­
bution: 2000 to 2010 at 2, http://www.census.gov/prod/ 
cen2010/briefs/c2010br-01.pdf. Nevada’s Hispanic

http://www.census.gov/prod/2001pubs/c2kbr01-2.pdf
http://www.census.gov/prod/2001pubs/c2kbr01-2.pdf
http://www.census.gov/prod/200Ipubs/c2kbr01-2.pdf
http://www.census.gov/prod/


18

population more than doubled in the last twenty- 
years, increasing from 10.4% of the population to 
26.5%. Compare Census 2000 Brief on the Hispanic 
Population at 4, http://www.census.gov/prod/2001pubs/ 
c2kbr01-3.pdf with Census 2010 Brief on the His­
panic Population at 6, http://www.census.gov/prod/ 
cen2010/briefs/c2010br-04.pdf. During the same time 
period, Arizona’s Hispanic population grew from 
18.8% to 29.6%. Compare Census 2000 Brief on the 
Hispanic Population at 4, with Census 2010 Brief on 
the Hispanic Population at 6.

The voting registration and turnout records for 
Arizona and Nevada are also similar. During the 2000 
election, 53.3% of Arizona’s total citizenry were 
registered voters and 46.7% voted, and in Nevada 
52.3% were registered and 46.5% voted. See U.S. 
Census Bureau, Voting and Registration in the Elec­
tion of November 2000, http://www.census.gov/hhes/ 
www/socdemo/voting/publications/p20/2000/tab04a.pdf 
(last visited November 7, 2011). But Nevada’s His­
panic population was less represented. Id. In Arizona, 
33.4% of its Hispanic population registered to vote 
and 27.1% voted; while in Nevada, 23.9% of its popu­
lation registered and only 20.4% voted. Id.

In 2004, Arizona’s record showed that 60.3% of 
the total population registered and 54.3% voted. See 
U.S. Census Bureau, Voting and Registration in the 
Election of November 2004, http://www.census.gov/ 
hhes/www/socdemo/voting/publications/p20/2004/tables. 
html (follow “Detailed Tables” hyperlink; then follow 
Table 4a “XLS’ hyperlink). The Arizona Hispanic

http://www.census.gov/prod/2001pubs/
http://www.census.gov/prod/
http://www.census.gov/hhes/
http://www.census.gov/


19

population’s numbers were 30.5% and 25.5%, respec­
tively. Id. Nevada, on the other hand, had 56.8% of its 
entire population registered, with 51.3% actually 
voting. Id. The Nevada Hispanic population’s num­
bers were 27.6% and 23.8%, respectively. Id.

In the 1972 election, only 49.5% of Nevada’s 
voting age residents voted. (See Dave Leip’s Atlas, 
supra (follow “1972” hyperlink; then follow “%VAP” 
hyperlink).) Also, none of Nevada’s current laws 
protecting non-English-speaking voters had been 
enacted. (See Nev. Rev. Stat. § 293.2699 (added 2003); 
Nev. Rev. Stat. § 293.296 (added 1973); Nev. Rev. Stat. 
§ 293C.282 (added 1997).) In spite of these facts, 
Arizona is a Covered Jurisdiction while Nevada has 
never been covered.

Despite the similar populations, a smaller per­
centage of Hispanic voters in Nevada are voting than 
in Arizona. In the Senate Judiciary Committee Re­
port, there were only two pieces of anecdotal evidence 
regarding possible voting discrimination in Nevada, 
but both involved discrimination against Hispanic 
voters. S. Rep. No. 109-295 at 277 (summarizing 
anecdotal evidence that Hispanics have been told 
they need to speak English or have a driver’s license 
in order to vote and that voter registration forms for 
some Hispanics were found in dumpsters and not 
submitted). Congress made no findings concerning 
the number of minorities elected to office in Nevada 
or regarding the possibility of racial polarization in 
its elections. This lack of justification by Congress 
for the different treatment of Arizona and Nevada



20

despite the stark similarities in their current popula­
tions and voter turnout records is evidence that the 
VEA’s formula is neither congruent with, nor propor­
tional to, the goal of eliminating discrimination in 
voting. Further, Congress’s failure to take into ac­
count these similar statistics shows that its decision 
to continue using the outdated coverage formula is 
arbitrary.

2. Several States Adopted Voter- 
Identification Laws but Experienced 
Dramatically Different Treatment 
Under the VRA.

Thirty states presently have laws in place that 
may require voters to show identification at the polls 
in November. Voter Identification Requirements, Na­
tional Conference of State Legislatures, http://www. 
ncsl.org/legislatures-elections/elections/voter-id.aspx 
(last visited August 13, 2012). Whether the laws may 
be effective depends greatly on whether the jurisdic­
tion is Covered or not. Since 2001, nearly 1,000 bills 
have been introduced in forty-six states. Id. Twenty- 
one states passed major legislation between 2003 and 
2011. Id. New voter-identification laws were passed 
in Alabama, Colorado, Montana, North Dakota, and 
South Dakota in 2003; Alabama had to request pre­
clearance {id.), which DOJ granted on August 15,

http://www


21

2003 (DOJ File Nos. 2003-2245; 2003-3434).7 In 2004, 
Arizona voters passed a voter-identification law. 
Gonzalez v. Arizona, 624 F.3d 1162, 1169 (9th Cir. 
2010) (en banc). The DOJ precleared Arizona’s law. 
See DOJ File No. 2004-5004. In 2005, new laws were 
passed in Indiana, New Mexico, and Washington, 
while Georgia passed legislation to strengthen its 
existing voter-identification law. See Voter Identifica­
tion Requirements, supra. Georgia had to request 
preclearance, while the other States did not. The DOJ 
precleared Georgia’s law on August 26, 2005. See 
Common Cause/Georgia, League of Women Voters of 
Ga., Inc. v. Billups, 439 F. Supp. 2d 1294, 1303 (N.D. 
Ga. 2006).

Indiana enacted a law in which voters who were 
unable to produce photo identification on election day 
could cast a provisional ballot that would be counted 
only it they produced an appropriate affidavit or 
produced photo identification before the court clerk 
within ten days following the election. Crawford, 553 
U.S. at 185-86. Because Indiana is not covered by 
Section 5, it did not have to seek preclearance. This 
Court upheld the facial validity of Indiana’s law, 
stating that the Court could not “conclude that the

7 Alabama has enacted a new voter-identification law that 
has not yet been submitted for preclearance and which will not 
take effect until 2014.



22

statute imposes ‘excessively burdensome require­
ments’ on any class of voters.” Id. at 202.8

South Carolina and Texas, both Covered Juris­
dictions, have not yet been permitted to enforce their 
voter-identification requirements, despite the fact 
that these laws are similar to the Indiana law upheld 
in Crawford. The DOJ denied preclearance for South 
Carolina’s voter-identification law. South Carolina v. 
U.S., D.D.C. Cause No. l:12-cv-203 (CKK, BMK, 
JDB) (Doc. 1). South Carolina has filed a declaratory- 
judgment action, seeking reconsideration of DOJ’s 
preclearance denial. Id. Trial begins on August 27, 
2012. Id. at Doc. 155.

Texas, like South Carolina, requested DOJ’s 
preclearance. Despite Texas’s responses to DOJ’s 
repeated requests for more information, DOJ still had 
not provided a preclearance decision six months after 
the State’s initial submission. Texas v. Holder, D.D.C. 
Cause No. l:12-cv-00128 (RMC, DST, RLW) (Doc. 1). 
By then, DOJ had rejected South Carolina’s similar 
law and, facing a likely similar rejection, Texas opted 
to file a declaratory judgment seeking preclearance. 
Id. The DOJ eventually rejected Texas’s request for 
administrative preclearance nearly seven months 
after the initial submission. Trial was held from 
July 10 through 13, 2012, and Texas is awaiting a

The Ninth Circuit held that Arizona’s voter-identification 
law did not violate Section 2 of the VRA. Gonzalez, 624 F.3d at 
1194.



23

preclearance decision from the district court -  more 
than a year after its legislature enacted the voter- 
identification law.

Judge Williams asked in his dissent in this case 
“Why should voter ID laws from South Carolina and 
Texas be judged by different criteria . . . from those 
governing Indiana?” (Pet. App. 94a.) Judge Williams 
could not find a rational explanation other than the 
historical records of the Covered Jurisdictions, but 
noted that such a focus appears to be “foreclosed by 
Northwest Austin’s requirement that current burdens 
be justified by current needs.” (Id. at 95a.) This 
dramatic disparity in the treatment of similar States 
is incompatible with our history of treating the States 
as equal sovereigns and warrants this Court’s review.

C. The Preclearance Requirements Are 
Arbitrary and Burdensome.

As with the voter-identification laws discussed 
above, Section 5’s preclearance obligations lead to 
other absurdities. The Covered States and their 
political subdivisions must obtain federal preclear­
ance before they enforce any change in a voting- 
related standard, practice, or procedure. See 42 
U.S.C. § 1973c; 28 C.F.R. § 51.1. Changes requiring 
preclearance include:

• “Any change in qualifications or eligibil­
ity for voting”;

• “Any change concerning registration, 
balloting, and the counting of votes and



24

any change concerning publicity for or 
assistance in registration or voting”; and

• “Any change in the boundaries of voting 
precincts or in the location of polling 
places.”

28 C.F.R. § 51.13(a), (b), (d). At the state level, the 
various attorneys general monitor legislation for 
“covered” changes and submit those changes to DOJ 
for preclearance. If a change originates at the local 
level, the local officials identify and submit the 
change.

1. Updating Alabama’s Voting Ma­
chinery to Comply with the Help 
America Vote Act of 2002 (“HAVA”).

HAVA contains detailed standards for the type of 
voting machinery a State may employ. See 42 U.S.C. 
§ 15481. In Alabama, each of the State’s sixty-seven 
counties handled the process of purchasing HAVA- 
compliant machines. The Alabama Attorney General 
spearheaded a unified preclearance submission, 
which included the necessary information under 28 
C.F.R. § 451.27 for each county. The DOJ precleared 
the changes for use in the June 2006 primary elec­
tion.9 But, because Alabama’s 450 municipalities

9 See DOJ File Nos. 2006-2900, 2006-3444, 2006-3446, 
2006-3449, 2006-3450, 2006-3454, 2006-3470 through 2006- 
3484, 2006-3533, 2006-3537, 2006-3539 through 2006-3541, 
2006-3548, 2006-3551, 2006-3555, 2006-3556, 2006-3568
through 2006-3580, and 2006-3583 through 2006-2594.



25

manage their own elections, when the time came for 
them to hold their own elections in 2008, they had to 
devote the time and expense to submit their own 
preclearance materials -  even though they used the 
same voting machines as their corresponding coun­
ties. This example demonstrates both the burden and 
arbitrariness of the preclearance requirements. These 
requirements were all the more absurd because, at 
least in this instance, because the changes these 
governments had to preclear were simply their good- 
faith efforts to comply with another federal statute.

2. Arizona’s Decision to Close Several 
Motor Vehicle Department Branches.

Because Arizona, like many other States, has 
faced serious budget concerns over the past several 
years, the Arizona Motor Vehicle Department (“MVD”) 
opted to close several branch offices. Arizona citizens 
who apply for a driver license or license renewal may, 
if otherwise qualified, register to vote or update their 
voter registration at the same time. Ariz. Rev. Stat. 
§ 16-122. Thus, this decision to close the branch 
offices was a change concerning registration that 
necessitated a preclearance submission.

On June 21, 2012, Arizona requested preclear­
ance to close an MVD location within the Pima Coun­
ty Justice Court in Tucson, Arizona. The submission 
noted that there were three other voter registration 
locations in the immediate vicinity — one of which was 
the Pima County Recorder’s Office in the very same



26

building as the MVD office that was closing. This type 
of administrative decision should be left to the local 
jurisdictions. But because of Section 5, Arizona’s 
MVD had to wait until it received DOJ’s preclearance 
letter to effectuate that change. See DOJ File No. 
2012-3656.

D. The Prospect of Bailout for the Cov­
ered States Is Illusory.

Congress justified the possibility that its cover­
age formula would be over- or under-inclusive, with 
the bailout and bail-in provisions. Shelby Cnty., 811 
F. Supp. 2d at 432-33. As discussed below, it will be 
extremely difficult for any of the currently Covered 
States to ever be able to bail out.

Like Congress, the majority below found solace in 
the bailout provision, stating that as of May 9, 2012, 
136 jurisdictions and sub-jurisdictions had successful­
ly bailed out. (Pet. App. 57a.) But no Covered State 
has ever been allowed to bail out, and as Judge 
Williams noted in his dissent, bailout does not remove 
federal oversight. (Pet. App. 92a (stating that “for a 
decade after bailout, the court ‘retain[s] jurisdiction’ 
just in case the Justice Department or ‘any aggrieved 
person’ wishes to file a motion ‘alleging that conduct 
has occurred which . . . would have precluded’ bailout 
in the first place.”).) Further, the 1982 reauthoriza­
tion of the VRA tightened the substantive standards 
for bailout:



27

A covered jurisdiction can now obtain bailout 
if, and only if, it can demonstrate that, dur­
ing the preceding ten years, it has (simplify­
ing slightly): (1) effectively engaged in no 
voting discrimination (proven by the absence 
of any judicial finding of discrimination or 
even a Justice Department “objection” (un­
less judicially overturned); (2) faithfully 
complied with § 5 preclearance; (3) “elimi­
nated voting procedures and methods of elec­
tion which inhibit or dilute equal access to 
the electoral process”; and (4) engaged in 
“constructive efforts to eliminate intimida­
tion and harassment of persons exercising 
rights protected” under the act and “in other 
constructive efforts, such as the expanded 
opportunity for convenient registration.”

Id. citing 42 U.S.C. § 1973b(a)(l). No State is likely 
to ever successfully bail out because it must prove 
that it (and all of its sub-jurisdictions) meets all the 
bailout requirements for the ten years preceding its 
declaratory judgment seeking bailout. If even one 
sub-jurisdiction receives an objection letter from DOJ 
for a voting change, the ten-year time period starts 
anew. Covered Jurisdictions such as the Amici States 
likely will be forced to continue to operate under the 
unconstitutional burdens of Sections 4 and 5 of the 
VRA unless and until this Court removes them. The 
Court should do so now.



28

CONCLUSION

The Court should grant certiorari to Shelby 
County and declare Sections 4(b) and 5 of the Voting 
Rights Act unconstitutional.

Respectfully submitted this 23rd day of August, 
2012.

Thomas C. H orne 
Arizona Attorney General
David R. Cole 
Solicitor General
M ichele L. F orney 
Assistant Attorney General
Attorneys for Amici Curiae