Shelby County v. Holder Brief Amici Curiae

    No. 12-96

Shelby County, Alabama

v.

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

ON WRIT OF CERTIORARI 
TO THE UNITED STA TES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA

B r ie f  of  D ic k  T h o r n b u r g h , D r e w  S . D a y s , III, 
J o h n  R. D u n n e , B il l  L a n n  L e e , J. S t a n l e y  

P o t t in g e r , P a u l  F. H a n c o c k , J a m e s  P. T u r n e r , 
W il l ia m  R. Y e o m a n s , B r ia n  K. L a n d s b e r g , a n d  
G il d a  R. D a n ie l s  a s  A m ic i Cu r ia e  in  Su p p o r t  of  

R e s p o n d e n t s

Elizabeth N. Dewar 
M. Patrick Moore, Jr. 
Ropes & Gray LLP 
Prudential Tower 
800 Boylston Street 
Boston, MA 02199

Douglas Hallward-Driemeier 
Counsel of Record 

Ropes & Gray LLP 
One Metro Center 
700 12th Street, NW; Suite 900 
Washington, DC 20005 
(202) 508-4600
Douglas. Hallward-Driemeier 

@ropesgray. com

W ilson-Epes Printing Co., Inc. -  (202)789-0096 -  Washington, D. C. 20002



TABLE OF CONTENTS

Page

Table of authorities....................................................... iii
Interest of amici.............................................................. 1
Summary of the argument..............................................3
Argument:
I. The scope of the 2006 amendments is not

properly before the Court...................................... 5
A. The constitutionality of the 2006 amend­

ments was not challenged below and is not 
within the Court’s grant of certiorari........... 5

B. The 2006 amendments are not vulnerable
to a broad facial challenge..............................7

II. The 2006 amendments to Section 5’s preclear­
ance standard are constitutional........................... 8
A. Section 5’s prohibition of discriminatory

purpose is straightforward and anchored to 
well-established law....................................... 9

B. Denial of preclearance to voting standards
or procedures enacted with a discrimina­
tory purpose cannot be considered unduly 
burdensome...................................................11

C. The handful of preclearance denials based
on the 2006 purpose prong revision 
illustrate effective and straightforward 
enforcement.................................................. 13

D. Section 5, as amended, continues to serve
important purposes distinct from those 
served by Section 2 .......................................15

(i)



11

E. The limited 2006 revision to the
retrogression standard protects certain 
ability-to-elect districts from 
fragmentation and does not pose 
constitutional concerns................................ 17

F. The amended retrogression standard has
been applied without incident in a full 
redistricting cycle.........................................21

III. The Justice Department’s record of enforcement 
is consistent with the text and purpose of Sec­
tion 5...................................................................... 24
A. Recent enforcement of Section 5

demonstrates its continued vitality.............23
B. Voter ID enforcement demonstrates the

effective functioning of Section 5 ................25
C. Past enforcement of Section 5 does not

raise current constitutional concerns.......... 31
Conclusion..................................................................... 36



Ill

TABLE OF AUTHORITIES

Cases ^age

Applewhite v. Commonwealth, 54 A.3d 1
(Pa. 2012)........................................................... 26

Applewhitev. Commonwealth, No. 330 
M.D. 2012, 2012 WL 4497211 (Pa.
Commw. Ct. Oct. 2, 2012)................................ 26

Bacchus Imports, Ltd. v. Dias, 468 U.S. 263
(1984)..................................................................16

Bartlett v. Strickland, 556 U.S. 1 (2009)............. 20
Beerv. United States, 425 U.S. 130 (1976)............17
City o f Cleburne v. Cleburne Living Ctr.,

Inc., 473 U.S. 432 (1985)....................................12
City o f Rome v. United States, 446 U.S. 156

(1980)..................................................................15
Crawford v. Marion C o u n ty  Election Bd.,

553 U.S. 181 (2008)....................................passim
Democratic Party o f Ga., Inc. v. Perdue,

288 Ga. 720 (2011)........................................... 28
Franchise Tax Bd. o f Cal. v. Hyatt, 538 U.S.

488 (2003)............................................................. 6
FW/PBS, Inc. v. City o f Dallas, 493 U.S.

215 (1990)............................................................. 6
Georgia v. Ashcroft, 539 U.S. 461 (2003) 4,15,17,18
LaRoquev. Holder, 831 F. Supp. 2d 183, 223 

(D.D.C. 2011), vacated as moot, 679 
F.3d 905 (D.C. Cir. 2012), cert, denied 
sub nom. N ixv . Holder, No. 12-81,133 S.
Ct. 610, 2012 WL 2955934 (Nov. 13,
2012)........................................................... passim



IV

Cases—Continued Page
Milavetz, Gallop & Milavetz, P.A. v . United 

States, 559 U.S. 229,120 S. Ct. 1324 
( 2010) ............................................................................................................ 7

M illerv. Johnson, 515 U.S. 900 (1995)....... 5,11, 31
Morales v. Handel, No. 08-03172, Dkt.

Entry No. 113 (N.D. Ga. Aug. 24, 2010)..........24
N a t’l  Archives & Records Admin, v. Favish,

541 U.S. 157 (2004)............................................ 32
Nevada D ep’t o f Human Res. v. Hihhs,

538 U.S. 721 (2003)............................................ 23
Northwest Austin Mun. Utility Dist. No.

Onev. Holder, 557 U.S. 193 (2009)....................22
Personnel Admin, o f Mass. v. Feeney,

442 U.S. 256(1979)............................................ 16
Reno v. Bossier Parish Sch. Bd., 520 U.S.

471 (1997)............................................................. 9
Renov. Bossier Parish Sch. Bd., 528 U.S.

320 (2000)............................................................. 9
Sabriv. United States, 541 U.S. 600 (2004).... 18, 19
Shelby Cnty. v. Holder, 679 F.3d 848 (D.C.

Cir. 2012)....................................................passim
Shelby Cnty. v. Holder, 811 F. Supp. 2d 242

(D.D.C. 2011)....................................................21
South Carolina v. Katzenbach, 383 U.S. 301

(1966)..................................................................15
South Carolina v. United States, — F. Supp. 2d —, 

No. 12-203, 2012 WL 4814094 (D.D.C. Oct. 10, 
2012).......................................................... passim



Cases—Continued Page
Tennessee v. Lane, 541 U.S. 509 (2004)................ 23
Texasv. Holder, No. 12-cv-128, 2012 WL 

3743676 (D.D.C. Aug. 30, 2012), notice 
of appeal filed (D.D.C. Aug. 30, 2012)......28, 29

Texas v. United States, No. 11-1303, 2012 
WL 3671924 (D.D.C. Aug. 28, 2012), 
appeal pending No. 12-496 (S.Ct.) (filed 
Oct. 19, 2012)............................................ passim

Texas v. United States, No. 12-496, 27 (U.S.
Dec. 7, 2012)...............................................10. 12

Tilton v. Richardson, 403 U.S. 672 (1971).............. 8
United States v. Georgia, 546 U.S. 151

(2006)..............................................................7<10
United States v. Raines, 362 U.S. 17 (1960)............ 8
United States v. Salerno, 481 U.S. 739 (1987).......7
Village o f Arlington Heights v. Metropolitan 

Housing Development Corp.,
429 U.S. 252 (1977)........................... 9, 10, 11,12

Washington State Granger. Washington 
State Republican Party, 552 U.S. 442 
(2008).......................................................... passim

Constitution, statutes and regulations
U.S. Const.

Art. VI, cl. 2 ....................................................... 10
Pub. L. No. 109-246, 120 Stat. 577 (2006)............. 6
Voting Rights Act of 1965

42 U.S.C. 1973, etseq ...............................passim
42 U.S.C. 1973a(c).............................................6



VI

Constitution, statutes and regulations 
— continued Page

42 U.S.C. 1973c(a)........................................... 16
42U.S.C. 1973c(b).................................... 9,17
42 U.S.C. 1973c(c).............................................. 9
42 U.S.C. 1973c(d)........................................... 17

28 C.F.R. Part 51
Section 51.52(a)...........................................12, 31
Section 51.54(a)...................................................9
Section 51.56...................................... 8, 9,11, 31
Section 51.57(e)...........................................10, 12
Section 51.59(a)...........................................19, 20
Section 51.59(a)(6).................................... 18,19
Section 51.59(b)........................................... 11

Ga. Code Ann. § 21-2-417.1(a)...........................28
Mich. Comp. Laws § 168.523 ................................. 27

Miscellaneous
Department of Justice, Status of Statewide 

Redistricting Plans, available a t 
h ttp: //www. j ustice. go v/cr t/about/vot /sec 
_5/statewides.php..........................................21

Department of Justice, Guidance
Concerning Redistricting Under Section 5 
of the Voting Rights Act, 76 Fed. Reg.
7470 (Feb. 9, 2011)..................................9, 18, 20

H.R. Rep. 109-478 (2006)......................4, 12,18, 19



V ll

Miscellaneous—Continued Page
Letter from Grace C. Becker, Acting 

Assistant Attorney General, to Sara 
Frankenstein (Feb. 11, 2008)........................... 24

Letter from Grace C. Becker, Acting 
Assistant Attorney General, to Brian 
DeBano (Dec. 26, 2007).................................... 27

Letter from John Tanner, Chief, Voting 
Section, to Thurbert Baker (Apr. 21,
2006)...................................................................28

Letter from Thomas E. Perez, Assistant 
Attorney General, to Melody T. Chappel 
(Dec. 21, 2012).................................................. 25

Letter from Thomas E. Perez, Assistant 
Attorney General, to Dennis R. Dunn 
(Dec. 21, 2012).................................................. 24

Letter from Thomas E. Perez, Assistant 
Attorney General, to Kenneth Dreher 
(Dec. 3, 2012).....................................................44

Letter from Thomas E. Perez, Assistant 
Attorney General, to Everett T . Sanders 
(Apr. 30,2012)....................................................44

Letter from Thomas E. Perez, Assistant 
Attorney General, to Michael S. Green 
(Apr. 13, 2012)................................................... 20

Letter from Thomas E. Perez, Assistant 
Attorney General, to Robert T . Bass 
(Mar. 12, 2010).................................................. 23

Letter from Thomas E. Perez, Assistant 
Attorney General, to Melissa Ocker (June 
28, 2010)............................................................. 23



V lll

Miscellaneous—Continued Page
Letter from T. Christian Herren, Jr., Chief,

Voting Section, to J. Gerald Herbert
(Sept. 4, 2012)....................................................27

Letter from Thomas Perez, Assistant
Attorney General, to C. Havird Jones, Jr.
(Dec. 23, 2011)...................................................29

Voting Rights Act: Section 5—Preclearance 
Standards, Hearing Before the Subcomm.
On the Constitution o f the H. Judiciary 
Comm., 109th Cong. 8, Serial No. 109-69 
(2005) ................................................................. 10



INTEREST OF AMICI1
Amici arc a group of former officials in the U.S. 

Department of Justice, including former Attorney 
General Dick Thornburgh, former Solicitor General 
Drew S. Days, III, and former officials in the Civil 
Rights Division. They have served during both 
Democratic and Republican administrations, and they 
have substantial experience with the Department’s 
implementation of the preclearance requirement of 
Section 5 of the Voting Rights Act, 42 U.S.C. 1973. 
Amici respectfully submit that their collective 
experience may illuminate the issues before the Court.

Amici write this brief principally to respond to 
contentions raised in two amicus briefs filed in support 
of petitioner contending that constitutional concerns 
regarding the Voting Rights Act are “exacerbate[d]” by 
the 2006 amendments to Section 5’s substantive 
standards. See Shelby County v. Holder, Brief of 
Former Government Officials Hans von Spakovsky et 
al. (No. 12-96) (von Spakovsky Br.); Shelby County v. 
Holder, Brief of John Nix etal. (No. 12-96) (Nix Br.).

Amici former Justice Department officials submit 
this brief to demonstrate that neither the text of the 
2006 amendments nor their interpretation gives rise to 
constitutional concerns, at least no concerns regarding 
the amendments’ facial validity. Moreover, the Justice 
Department’s enforcement record demonstrates that 
the concerns articulated by petitioner’s amici are

1 The parties have consented to the filing of amicus curiae 
briefs in support of either party or of neither party, in letters on 
file with the Clerk. No counsel for any party authored this brief 
in whole or in part, and no person or entity, other than amici curi­
ae or their counsel, made a monetary contribution intended to 
fund the preparation or submission of this brief.

(1)



2

purely speculative. The Department has enforced 
Section 5 in a manner faithful to the Constitution, the 
statutory text, and this Court’s precedent.

A list of amici follows.
Dick Thornburgh served as Attorney General from 

1988-1991, under Presidents Ronald Reagan and 
George H.W. Bush. Preceding that service, he was 
Governor of Pennsylvania from 1979-1987.

Drew S. Days, III, served as Solicitor General 
from 1993-1996. He also served as Assistant Attorney 
General for Civil Rights from 1977-1980.

John R. Dunne served as Assistant Attorney 
General for Civil Rights from 1990-1993.

Bill Lann Lee served as Assistant Attorney 
General for Civil Rights from 1997-2001. Since his 
government service, he has chaired the bipartisan 
National Commission on the Voting Rights Act.

J. Stanley Pottinger served as Assistant Attorney 
General for Civil Rights from 1973-1977.

Paul F. Hancock served in the Civil Rights 
Division of the Justice Department for 27 years, 
including as director of the Voting Rights Act 
litigation program and later as Acting Assistant 
Attorney General for Civil Rights.

James P. Turner was an attorney in the Civil 
Rights Division from 1965-1994. He served as Deputy 
Assistant Attorney General for Civil Rights from 1969- 
1994, and as Acting Assistant Attorney General for 
Civil Rights from 1993-1994.

William R. Yeomans served in the Justice 
Department from 1978-2005, with 24 years in the Civil



3

Rights Division, including as Chief of Staff and Acting 
Assistant Attorney General for Civil Rights.

Brian K. Landsberg served in the Civil Rights 
Division for 22 years, including as Chief of the 
Appellate Section from 1974-1986 and as Acting 
Deputy Assistant Attorney General for Civil Rights m
1993.

Gilda R. Daniels served in the Civil Rights 
Division from 1995-1998 and 2000-2006, including as 
Deputy Chief of the Voting Section.

SUMMARY OF THE ARGUMENT
A. Although the question on which this Court 

granted review concerns only the continued validity of 
Section 4B of the Voting Rights Act’s coverage 
formula, petitioner’s amici attempt to interject two 
additional constitutional challenges that are not 
properly before the Court. Relying on pure
speculation, amici urge that the Department of Justice 
will apply the 2006 amendments to Section 5’s 
substantive standards in an unconstitutional manner.

The Court should refuse to consider these 
arguments. Petitioner made no such argument below, 
nor in the petition for certiorari. Moreover, amici’s 
arguments amount to a broad facial challenge of the 
type rightly disfavored by this Court. Rather than 
speculate about theoretical unconstitutional conduct 
on the part of the Department of Justice, the Court 
should apply the presumption of regularity and address 
any problematic applications of the law if and when 
they occur.

B. Even if the Court does consider amici’s 
challenges, the 2006 amendments to Section 5 are 
constitutional as written, interpreted, and enforced.



4

Section 5’s amended purpose prong bars voting changes 
enacted with discriminatory intent, reflecting 
Congress’s unremarkable determination that the 
Justice Department should not preclear voting laws 
intended to burden minority voters disproportionately. 
Petitioner’s amici do not challenge the substance of the 
standard, but rather complain of the burden of 
establishing a lack of discriminatory intent. But, in 
application, the covered jurisdiction carries its prima 
facie case simply by making a straightforward showing 
that the change has a legitimate, non-discriminatory 
rationale. Since 2006, the amendment has provided the 
basis for only a handful of preclearance denials, none of 
which petitioner’s amici challenge.

Section 5’s amended retrogression standard evinces 
Congressional disagreement with the statutory 
interpretation set forth in Georgia v. Ashcroft, 539 
U.S. 461 (2003), in one narrow context: the
fragmentation of geographically compact ability-to- 
elect districts into potentially illusory “influence” 
districts. The amendment disallows such 
fragmentation. It was intended in part to streamline 
the preclearance process to make it less onerous, and 
has accomplished that goal throughout the 2010 
redistricting cycle. Moreover, the amended 
retrogression standard is directed at compact districts 
that would result from neutral redistricting principles. 
Regarding these districts, the amendment simply 
protects the ability of minority voters to elect 
candidates “on terms similar to other communities,” 
H.R. Rep. No. 109-478, 70 (2006)—embodying the 
very purpose of the Voting Rights Act.

C. Far from raising constitutional concerns, the 
recent enforcement of Section 5 demonstrates its



5

continued necessity and vitality. Recent preclearance 
denials include a jurisdiction with a large Hispan 
population seeking to abandon professional Spanish 
translations of its election materials and reduce the 
number of bilingual poll workers; a state s program 
purportedly designed to strike non-citizen voters from 
its voter rolls under a method disproportionately 
striking African-American and Hispanic citizens 
registered to vote; and a municipality that rescheduled 
its elections from high-turnout November to low- 
turnout July just as African Americans reached a 
majority of the voting-age population.

Petitioner’s amici ignore this record. Instead, they 
mischaracterize the Justice Department’s enforcemen 
record with respect to voter ID laws and speculate that 
the Department will require minority-maximization 
redistricting. Contrary to amici’s assertions, when 
evaluating voter ID laws, the Justice Department has 
acted consistently with this Court’s holding: m 
Crawford v. Marion C ounty Election Board, 553 U.b. 
181 (2008), focusing on the burden the law imposes on 
prospective voters and any provisions aimed at 
mitigating that burden. The Department has
precleared such laws more often than not. And 
speculation that the Department will demand so-called 
“max-black” redistricting is baseless; such enforcement 
is prohibited under Miller v. Johnson, 515 U.S. 900, 
923-925 (1995), and the Department’s regulations 
expressly provide that enforcement of Section 5 shall 
adhere to this Court’s precedent.

The Voting Rights Act is hailed across the political 
spectrum as a crown jewel of American liberties and a 
monumental legislative achievement. Congress 
recently reenacted it with overwhelming majorities.



6

Like any statute, it is not vulnerable to challenge on 
the basis of baseless speculation concerning potential 
misinterpretation or wrongful enforcement.

ARGUMENT
I. THE SCOPE OF THE 2006 AMENDMENTS IS

NOT PROPERLY BEFORE THE COURT
A. The Constitutionality Of The 2006 Amend­

ments Was Not Challenged Below And Is Not 
Within The Court’s Grant Of Certiorari

This case presents a constitutional challenge to the 
coverage formula set forth in Section 4(b) of the Voting 
Rights Act, 42 U.S.C. 1973b(b). It is not a challenge 
to the limited amendments to Section 5 adopted by 
Congress in 2006, Pub. L. No. 109-246, 120 Stat. 577 
(2006), codified at 42 U.S.C. 1973, et seq. Petitioner 
has not asked the Court to interpret the 2006 
amendments, nor to assess how they have been applied. 
Indeed, petitioner concedes that Section 5, as amended, 
is properly applied to bailed-in jurisdictions found to 
have violated “any statute to enforce the voting 
guarantees of the [F]ourteenth or [F]ifteenth 
Amendment.” 42 U.S.C. 1973a(c); see Pet. Br. 57. 
The issue before the Court, then, is not whether the 
particular pre-clearance standard set forth in Section 5 
is constitutional, but rather whether the jurisdictions 
covered by Section 4(b) should be subject to the 
preclearance process at all.

The Court’s grant of certiorari reflects this scope: 
The Court limited the question presented to the 
constitutionality of “Congress’ decision in 2006 to 
reauthorize Section 5 of the Voting Rights Act under 
the pre-existing coverage formula.” And the court of 
appeals below likewise recognized that the 2006



7

amendments’ constitutionality was not before it. 
Shelby Cnty. v. Holder, 679 F.3d 848, 883 (D.C. Cir. 
2012) (noting that “Shelby County [had] neither 
challenge^] the constitutionality of the 2006 
amendments [n]or even argue[d] that they increase 
[S]ection 5’s burdens.”).

In these circumstances, petitioner’s amici s 
challenge must be disregarded. See Franchise Tax Bd. 
of Cal. v. H yatt, 538 U.S. 488, 497 (2003) (Court 
generally will not consider challenges to the judgment 
below advanced only by amici). And, although 
petitioner now raises—for the first time an argument 
that the 2006 amendments impermissibly added to the 
burden of the preclearance process, Pet. Br. 25-27, the 
Court should disregard these belated contentions. See 
FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 224 
(1990) (“It is this Court’s practice to decline to review 
those issues neither pressed nor passed upon below. ).

B. The 2006 Amendments Are Not Vulnerable To 
A Broad Facial Challenge

Moreover, even if the 2006 amendments were 
properly before this Court, petitioner and its amici 
raise, at most, a broad facial challenge. Such a 
challenge is “the most difficult challenge to mount,” 
United States v. Salerno, 481 U.S. 739, 745 (1987), as 
this Court will “uphold the law if there is any 
‘conceivable]’ manner in which it can be enforced 
consistent with the constitution, Milavetz, Gallop & 
Milavetz, P.A. v. United States, 559 U.S. 229, , 120
S. Ct. 1324, 135 (2010). The record of the 
amendments’ enforcement since 2006, see pp. 24-34, 
infra, conclusively demonstrates petitioner’s failure to 
meet this “heavy burden of persuasion.” Crawford v. 
Marion Cnty. Election Bd., 553 U.S. 181, 200 (2008).



8

Furthermore, this Court has been clear that 
“[f]acial challenges are disfavored for several 
reasons”—reasons vindicated here. Washington State 
Grange v. Washington State Republican Party, 552 
U.S. 442, 450-451 (2008). Most importantly, “facial 
challenges threaten to short circuit the democratic 
process by preventing laws embodying the will of the 
people from being implemented in a manner consistent 
with the Constitution.” Ibid.', see ibid, (quoting 
Ayotte  v. Planned Parenthood o f N . New Eng., 546 
U.S. 320, 329 (2006)). Facial challenges also “raise the 
risk of premature interpretation of statutes on the 
basis of factually barebones records” and “run contrary 
to the fundamental principle of judicial restraint that 
courts should neither anticipate a question of 
constitutional law in advance of the necessity of 
deciding it nor formulate a rule of constitutional law 
broader than is required by the precise facts to which it 
is to be applied.” Id. at 450 (internal quotations and 
citations omitted).

The submissions by petitioner’s amici bear the 
hallmarks of a flawed facial challenge. Rather than 
addressing the 2006 amendments’ text, interpretation, 
or enforcement, petitioner’s amici rely on speculation 
“about hypothetical or imaginary cases.” Washington 
State Grange, 552 U.S. at 450 (internal quotation 
marks and citations omitted); see pp. 28-35, infra. But 
“[t]he delicate power of pronouncing an Act of 
Congress unconstitutional is not to be exercised with 
reference to hypothetical cases thus imagined.” United 
States v. Raines, 362 U.S. 17, 22 (1960). Petitioner’s 
amici also suggest that the amendments may lead the 
Justice Department to overreach in disregard of this 
Court’s precedent. See, e.g., von Spakovsky Br. 17-24. 
This naked speculation is refuted by the Department’s



9

own regulations, which require fidelity to this Court’s 
decisions. 28 C.F.R. 51.56. Even were it not, “judicial 
concern about these possibilities cannot, standing 
alone, warrant striking down a statute as 
unconstitutional.” Tilton v. Richardson, 403 U.S. 672, 
679 (1971).

In any event, even if amici’s argument were 
properly before the Court, it finds no support in the 
statute’s text, interpretation, or enforcement. See pp. 
9-34, infra.
II THE 2006 AMENDMENTS TO SECTION 5’S

PRECLEARANCE STANDARD ARE CON­
STITUTIONAL
The 2006 amendments are constitutional as 

written. They are constitutional as interpreted by the 
Justice Department in regulations and guidelines pro­
mulgated under the Act. And they are constitutional 
as applied in the handful of preclearance decisions to 
which they have been relevant since 2006, none of 
which is presently before this Court.

A. Section 5’s Prohibition Of Discriminatory 
Purpose Is Straightforward And Anchored To 
Well-Established Law

Congress’s clarification of Section 5’s purpose 
prong reflects its unremarkable conclusion that the 
Justice Department should not preclear a voting 
qualification or prerequisite to voting, or standard, 
practice, or procedure with respect to voting” that has 
been enacted with an unconstitutional, discrimmatory 
purpose. 42 U.S.C. 1973c(b).

Interpreting the former language of the statute, in 
2000, this Court held that “the ‘purpose’ prong of §5 
cover[ed] only retrogressive dilution.” Reno v. Bossier



10

Parish Sch. Bd., 528 U.S. 320, 328 (2000). As the 
Court recognized, under its interpretation, the statute 
required preclearance of a voting change enacted with 
a discriminatory purpose “that is not retrogressive—no 
matter how unconstitutional i t  m ay b e ” Id. at 336 
(emphasis in original). In 2006, Congress indicated its 
disagreement by amending Section 5 to prohibit 
preclearance of voting changes enacted with “any 
discriminatory purpose,” retrogressive or otherwise. 42 
U.S.C. 1973c(c).

As amended, the purpose provision simply 
incorporates this Court’s standard for unconstitutional 
discrimination. 28 C.F.R. 51.54(a) (“The Attorney 
General’s evaluation of discriminatory purpose under 
[S]ection 5 is guided by the analysis in Village o f 
Arlington Heights v. Metropolitan Housing 
Development Corp., 429 U.S. 252 (1977).”);
Department of Justice, Guidance Concerning 
Redistricting Under Section 5 of the Voting Rights 
Act, 76 Fed. Reg. 7470, 7471 (Feb. 9, 2011) (“2011 
Guidance”) (same); see 28 C.F.R. 51.56 (“In making 
determinations the Attorney General will be guided by 
the relevant decisions of the Supreme Court of the 
United States and other Federal courts.”). Section 5, 
as amended, operates to preclude intentional 
discrimination, in which no jurisdiction has any right 
to engage. U.S. Const, art. VI, cl. 2. The amendment 
therefore validly enforces the Fourteenth and Fifteenth 
Amendments. See United States v. Georgia, 546 U.S. 
151, 158 (2006) (“[N]o one doubts that § 5 [of the 
Fourteenth Amendment] grants Congress the power to 
‘enforce . . . the provisions’ of the Amendment by 
creating private remedies against the States for actual 
violations of those provisions.”) (emphasis in original).



11

The discriminatory purpose standard is well- 
defined by reference to this Court’s precedents. 
Analysis under the standard begins with a simple 
requirement that the covered jurisdiction provide a 
reasonable explanation for its voting change. See pp. 
12-14, infra. Thereafter, the factors set forth in Village 
of Arlington Heights are considered: whether the 
decision’s impact “bears more heavily on one race than 
another”; the decision’s historical background; the 
sequence of events leading up to the decision, including 
whether there are procedural abnormalities or 
substantive departures from the factors ordinarily 
considered; and the decision-makers’ contemporaneous 
statements. 28 C.F.R. 51.57(e); 2011 Guidance at 
7471. These finite and concrete factors form a 
“longstanding yardstick for determining 
discriminatory intent.” Texas v. United States, — F. 
Supp. 2d —, No. 11-1303, 2012 WL 3671924, at *13 
(D.D.C. Aug. 28, 2012), appeal filed No. 12-496 (U.S. 
Oct. 19, 2012); see Renov. Bossier Parish Sch. Bd., 520 
U.S. 471, 488-489 (1997) (collecting Section 5 
preclearance decisions applying Village of Arlington 
Heights analysis).

Moreover, the Justice Department has found the 
Village o f Arlington Heights analysis fully 
administrable in the Section 5 context. See Voting 
Rights Act: Section 5—Preclearance Standards,
Hearing Before the Suhcomm. On the Constitution of 
the H. Judiciary Comm., 109th Cong. 8, Serial No. 
109-69 (2005) (testimony of Mark A. Posner, former 
Special Counsel for Section 5, Department of Justice).2

2 The Village of Arlington Heights analysis will not permit 
the Justice Department to withhold preclearance of all redistrict­
ing plans that fail to adopt a so-called “max-black” approach, as



12

B. Denial Of Preclearance To Voting Standards 
Or Procedures Enacted With A Discrimina­
tory Purpose Cannot Be Considered Unduly 
Burdensome

No jurisdiction, covered or uncovered, has a 
sovereign right to enforce a voting law enacted with 
discriminatory intent. U.S. Const, art VI, cl. 2. That 
Section 5 prevents a covered jurisdiction from 
enforcing a voting law enacted with discriminatory 
intent cannot, therefore, constitute an undue burden. 
Implicitly acknowledging as much, petitioner’s amici 
contend not that the substantive purpose prong itself is 
problematic, but instead that the requirement to 
“prove a negative”—the absence of discriminatory 
intent—presents an overly burdensome, nearly 
insurmountable obstacle, von Spakovsky Br. 14-16; 
Nix Br. 34-38. This concern echoes one voiced by 
petitioner. Pet. Br. 25-26.

Judicial interpretation of the Section 5 purpose 
prong requires no extraordinary or impossible showing. 
Instead, the covered jurisdiction only “must present 
some prima facie evidence ‘to show that [its] voting 
changes are nondiscriminatory.’ ” Florida v. United 
States,— F. Supp. 2d —, No. 11-1428, 2012 WL 
3538298, at *38 (D.D.C. Aug. 16, 2012) (citing Shelby

petitioner’s amici purportedly fear, von Spakovsky Br. 15-16; Nix 
Br. 35. To the contrary, Department regulations and guidance— 
ignored by petitioner and its amici—expressly provide that “[a] 
jurisdiction’s failure to adopt the maximum possible number of 
majority-minority districts m ay not be the sole basis for determin­
ing that a jurisdiction was motivated by a discriminatory pur­
pose.” 28 C.F.R. 51.59(b) (emphasis added); 2011 Guidance at 
7471 (same); see M iller v. Johnson, 515 U.S. 900, 923-925 (1995) 
(prohibiting the practice); 28 C.F.R. 51.56 (providing that Justice 
Department will be guided by the Court’s precedent).



13

Cnty. v. Holder, 811 F. Supp. 2d 242, 431 (D.D.C. 
2011)). “As a practical matter, this means that the 
plaintiff must come forward with evidence of 
legitimate, nondiscriminatory motives for the proposed 
changes to [its] voting laws.” Ibid, (quoting State of 
New York v. United States, 874 F. Supp. 394, 400 
(D.D.C. 1994)). This requirement—essentially just to 
show a rational basis for the law—cannot be considered 
onerous or unusual. Cf. City o f Cleburne v. Cleburne 
Living Ctr., Inc., 473 U.S. 432, 446-447 (1985).

Once the jurisdiction makes such a showing, the 
burden “ ‘shifts to the Attorney General,’ to provide 
some evidence to ‘refute the covered jurisdiction’s 
prima facie showing.’ ” Florida, 2012 WL 3538298, at 
*38 (quoting Bossier, 528 U.S. at 332). The Attorney 
General’s evidence, if any, will relate to the Village of 
Arlington Heights factors. Id. at *39; see 28 C.F.R. 
51.57(e). Only “[w]hen each party has met its 
production burden” will the Court assess 
discriminatory purpose. Florida, 2012 WL 3538298, at 
*38. The Justice Department’s preclearance process 
follows the same framework. See 28 C.F.R. 51.52(a) 
(“the Attorney General shall make the same 
determination that would be made by the court in an 
action for declaratory judgment under Section 5”); cf. 
United States’ Mot. to Affirm in Part, Texas v. United 
States, No. 12-496, 27 (U.S. Dec. 7, 2012) (reflecting 
Justice Department’s acceptance of burden-shifting 
approach).

Far from proving a negative, the covered 
jurisdiction need only demonstrate that evidence of a 
legitimate purpose outweighs the evidence of 
discriminatory intent. Only where the record reflects 
evidence of racial hostility and the law lacks a



14

discernible purpose does the jurisdiction’s burden 
become weighty. And that is what Congress intended. 
H.R. Rep. No. 109-478, 68 (2006) (attempts to 
“ ‘purposefully’ keep minority groups ‘in their place’ 
have no role in our electoral process and are precisely 
the types of changes Section 5 is intended to bar”).

C. The Handful Of Preclearance Denials Based 
On The 2006 Purpose Prong Revision 
Illustrate Effective And Straightforward 
Enforcement

The revised purpose definition, portrayed as a vast 
expansion by petitioner and its amici, is anything but. 
A survey of enforcement since 2006 illustrates the 
point.

Since the amendment, only three jurisdictions’ 
redistricting plans have been denied preclearance under 
the revised purpose prong. In each instance, the 
covered jurisdiction failed to provide any rational 
explanation for its proposed plan.3 One of these three, 
Texas, bypassed the Justice Department and was 
denied judicial preclearance for its post-2010 statewide 
redistricting plans. See Texas v. United States, 2012 
WL 3671924, at *1, *37. In Texas’s U.S. House 
redistricting, incumbent representatives of African-

3 The Justice Department denied preclearance to a non-re- 
districting voting change, in sui generis circumstances. See Letter 
from Wan J. Kim, Assistant Attorney General, to Tommy Cole­
man (Sept. 12, 2006) (refusing preclearance where Randolph 
County Board of Registrars met, without notice or rational expla­
nation, to reassign the African-American Chair of the Randolph 
County Board of Education from his ability-to-elect District 4 to 
predominately-white District 5, despite a court decision expressly 
determining his residence to be in District 4; the change would 
have ensured his defeat in the upcoming re-election).



15

American and Hispanic ability-to-elect districts saw 
their respective offices meticulously excised from then- 
districts. Id. at *19-20. The same fate did not befall a 
single representative of a majority-white district. Id.i 
“The only explanation Texas offerefd] for this pattern 
[was] ‘coincidence.’ ” Id. The district court rejected 
that explanation, citing the “substantial surgery” to 
ability-to-elect districts, the complete exclusion of 
African-American and Hispanic representatives from 
the redistricting process, and the plan s expedited 
consideration in a special legislative session quite 
different from what [Texas had] seen in the past. Id. 
at *21.

The City of Clinton, Mississippi, likewise failed to 
offer any plausible explanation for its post-2010 
redistricting plan. See Letter from Thomas E. Perez, 
Assistant Attorney General, to Kenneth Dreher (Dec. 
3, 2012). Despite an African-American population that 
had doubled in the prior 20 years to 34 percent of 
Clinton’s population, the city’s redistricting afforded 
minority voters no ability to elect a candidate of choice 
in any of the six wards. Ibid. The redistricting plan 
adopted on an expedited schedule without 
consideration of alternatives fragmented minority 
population centers to reach this result. Ibid. The only 
explanation the city gave for the fragmentation was 
that it was “not possible to devise a constitutionally 
valid ward in which African American voters have the 
ability to elect candidates of choice to office.” Ibid. 
This explanation proved flatly incorrect. Ibid.

i  The “economic engines” of these districts e.g., hospitals, 
universities, arenas, and even the Alamo—were likewise excised. 
Texas v. United States, 2012 WL 3671924, at *20. Majority white 
districts managed to avoid similar surgery. Ibid.



16

The City of Natches, Mississippi similarly failed to 
offer any rational explanation for its decision—for the 
fourth consecutive redistricting cycle—to reduce the 
African-American population of its Ward 5, which had 
nearly been an ability-to-elect district. See Letter from 
Thomas E. Perez, Assistant Attorney General, to 
Everett T. Sanders (Apr. 30, 2012). Ward 5 happened 
to hold the balance of power on Natches’s Board of 
Aldermen. See ibid. The city’s sole explanation was 
that the reduction of the African-American population 
in Ward 5 was needed to prevent retrogression 
elsewhere. Ibid. That explanation proved false. Ibid.

In light of this record, the most that can be said 
about the burden imposed by the amended purpose 
prong is that a covered jurisdiction cannot meet 
evidence of discriminatory intent with silence, 
falsehoods, or implausible assertions of coincidence. 
The record refutes amici’s hyperbolic suggestion that 
the modified purpose prong “will effectively force 
covered jurisdictions to prove that hundreds of 
legislators did not act with a particular motivation.” 
von Spakovsky Br. 14 (emphasis added).5 Such 
speculation cannot form the basis for striking down an 
act of Congress. Washington State Grange, 552 U.S. at 
455 (quoting Pullman Co. v. Knott, 235 U.S. 23, 26 
(1914)) (“A statute ‘is not to be upset upon 
hypothetical and unreal possibilities, if it would be 
good upon the facts as they are.’ ”).

5 The Nix amici further speculate that the purpose analysis 
is so withering as to coerce covered jurisdictions to “prioritiz[e] 
changes that improve minorities’ expected electoral success.” Nix 
Br. 37. Setting aside the fundamental implausibility of this sug­
gestion, amici do not cite a single instance of such coercion.



17

D. Section 5, As Amended, Continues To Serve 
Important Purposes Distinct From Those 
Served By Section 2

Section 5 performs the important function of 
“shifting ‘the advantage of time and inertia’ ” from 
those who have enacted discriminatory voting laws to 
the laws’ victims. City o f Rome v. United States, 446 
U.S. 156, 182 (1980) (quoting South Carolina v. 
Katzenbach, 383 U.S. 301, 309 (1966)). Section 5 thus 
redresses the problem that, if discriminatory voting 
changes take effect, those harmed cannot be 
adequately compensated, and those benefited may be 
more firmly ensconced in positions of power. See 
Shelby Cnty. v. Holder, 679 F.3d 848, 861 (D.C. Cir. 
2012).

Petitioner’s amici argue that preclearance should 
be used only to prevent “backsliding.” Nix Br. 3 
(quoting Georgia v. Ashcroft, 539 U.S. 461, 477 
(2003)). They further assert that if preclearance may 
be denied for any discriminatory purpose, Section 5 
will no longer serve its limited purpose of freezing the 
status quo so that it do[es] not worsen while Section 2 
cases [are] pending.” Id. at 3,18-19.

These arguments fail to address the fact that that 
Congress could reasonably conclude that a voting 
change enacted with a discriminatory purpose would 
likely worsen the status quo, i.e., that there is a risk the 
change would achieve its discriminatory objective. See 
Personnel Admin, of Mass. v. Feeney, 442 U.S.^256, 
279 (1979) (“ ‘Discriminatory purpose’ implies 
that the decision maker * * * selected or reaffirmed a 
particular course of action at least in part ‘because of 
* * * [expected] adverse effects upon an identifiable 
group.”); see also Bacchus Imports, Ltd. v. Dias, 468



18

U.S. 263, 271 (1984) (noting that in dormant 
Commerce Clause context, evidence of discriminatory 
purpose alone is sufficient to support finding of 
economic protectionism). Moreover, the statute’s 
plain language cannot accommodate amici’s attempt to 
distinguish between, on the one hand, those voting 
laws that do have retrogressive effect, which they 
argue are the historical focus of Section 5, and, on the 
other, those laws that intend to have a discriminatory 
effect but may not. See 42 U.S.C. 1973c(a) (covered 
jurisdiction must establish that change in voting law 
“neither has the purpose nor will have the effect of 
denying or abridging the right to vote on account of 
race or color”). Section 5 reaches all laws enacted with 
a discriminatory intent, preventing their proponents 
from inflicting an irreparable injury.

E. The Limited 2006 Revision To The Retrogres­
sion Standard Protects Certain Ability-To- 
Elect Districts From Fragmentation And Does 
Not Pose Constitutional Concerns

Ballot access alone does not guarantee effective 
exercise of the electoral franchise, as votes may be 
diluted through discriminatory districting. 
Accordingly, protection of the “ability of minority 
groups to participate in the political process” must be 
paired with protection of their ability “to elect their 
choices to office.” Beery. United States, 425 U.S. 130, 
141 (1976) (quoting H.R. Rep. No. 94-196, at 60 
(1975)). The latter protection is the focus of the 2006 
amendments to the Section 5 effects prong, which now 
provides that no voting procedure should “diminish the 
ability” of protected citizens to “elect their preferred 
candidates of choice.” 42 U.S.C. 1973c(b), (d).



19

The 2006 amendments have a narrow purpose, 
namely to address a specific disagreement over the 
definition of retrogression—a disagreement relevant 
only in the context of some redistricting plans. See pp. 
23-24, infra. In Georgia v. Ashcroft, 539 U.S. 461 
(2003) this Court considered a state senate 
redistricting plan that reduced the African-American 
voting-age population in three previously majority- 
minority districts to “just over 50 [percent], which 
made it at least “marginally less likely that minority 
voters [could] elect a candidate of their choice m those 
districts.” Id. at 486. At the same time, the plan 
increased the African-American voting-age population 
in four districts where African Americans remained a 
voting-age minority. Id  at 487. Interpreting Section 
5 the Court concluded that the addition of these non- 
majority “influence” districts re n d e r th e
redistricting plan non-retrogressive. Ib id  The Court 
concluded that “[t]he State may choose, consistent 
with § 5, that it is better to risk having fewer minority 
representatives” in order to attain “greater overall 
minority” influence. Id. at 483.

The amended Section 5 reflects Congress s 
conclusion, contrary to Georgia, that retr(>^ssion 
generally occurs where minority voters are remov 
from certain ability-tolled districts and fragmmted 
into districts in which they have only a lesser, 
undefined “influence” in the electoral process. 42 
U.S.C. 1973c(b), (d); see v . 83 .
Supp. 2d 183, 223 (D.D.C. 2011), vacateed as moot 679 
F 9d 905 (D C. Cir. 2012), cert, denied sub nom. A/xv. 
Holder, No.’ 12-81, 133 S. Ct. 610, 2012 WL 295593 
(Nov. 13, 2012). The legislative record indicates that 
the amendments are directed at “f  °gr5 ^ ic a y  
compact” majority-minority districts. H.R. Rep. 1W-



20

478, at 70. These are the districts that would result 
from adherence to neutral redistricting principles, such 
as “compactness and contiguity” and regard for 
“natural or artificial boundaries” like rivers or 
municipal borders. 28 C.F.R. 51.59(a)(6). Where the 
Voting Rights Act has operated to create or protect 
such districts, the “ability to elect” standard preserves 
them, at least against their substitution for potentially 
illusory “influence” districts. See H.R. Rep. 109-478, 
at 69-70 (2005); accord Georgia, 539 U.S. at 493-494 
(Souter, J., dissenting) (noting that “without the 
anchoring reference to electing a candidate of choice,” 
the nonretrogression principle would be “substantially 
diminished” and “practically unadministrable”).

Petitioner’s amici contend that this limited 
revision to the retrogression standard, applicable only 
in limited contexts, simply “ossif[ies] existing majority- 
minority districts.” von Spakovsky Br. 13; see Nix Br. 
29. As an initial matter, this is not a redistricting case, 
and redistricting cases necessarily involve unique facts. 
See 2011 Guidance, 76 Fed. Reg. at 7471-7472. 
Consequently, the Court’s general reluctance to pass 
“judgment on [a] fact-poor record” should be 
particularly acute here. Sabri v. United States, 541 
U.S. 600, 609 (2004); see Crawford v. Marion Cnty. 
Election Bd., 553 U.S. 181,198-199 (2008).

Furthermore, although the height of post-2010 
redistricting has passed, amici have not identified a 
single instance where the amended retrogression 
standard has been misapplied. See pp. 23-24, infra. 
Speculation that the standard could be misapplied 
founders on the principle that hypothetical harms do 
not justify “ ‘premature interpretation of statutes on 
the basis of factually barebones records.’ ” Washington



21

State Grange v. Washington State Republican Party, 
552 U.S. 442, 450 (2008) (quoting Sabri, 541 U.S. at 
609).

There are at least four additional reasons why the 
speculative ossification argument fails. First, as the 
legislative history reflects, the ability-to-elect standard 
focuses primarily on protecting “geographically 
compact” majority-minority districts from 
fragmentation via redistricting—that is, protects 
districts that would have existed in a world of race- 
neutral redistricting. See H.R. Rep. 109-478 (noting 
standard provides that a “geographically compact 
minority group” will be able to elect its preferred 
“candidates * * * to office—on terms similar to other 
communities”). The governing Justice Department 
regulations reflect this focus. See 28 C.F.R. 51.59(a) 
(in determining retrogressive effect, Department will 
consider minority fragmentation, dilution, departure 
from objective redistricting criteria, compactness, and 
contiguity, and regard for naturally occurring 
boundaries).

Second, “courts and the Justice Department are 
required to consider certain constitutional mandates, 
including compliance with the one person one vote 
principle and equal protection principles.” LaRoque, 
831 F. Supp. 2d at 224. As the Department has 
recognized, retrogression analysis necessarily 
incorporates these constitutional mandates, which, 
under some circumstances, can and do require dilution 
of ability-to-elect districts. See 28 C.F.R. 51.59(a); 
2011 Guidelines at 7472.

Third, over time, overall population decline may 
result in the elimination of an ability-to-elect district. 
2011 Guidelines at 7472; cf. Letter from Thomas E.



22

Perez, Assistant Attorney General, to Michael S. 
Green (Apr. 13, 2012) (denying preclearance to 
county’s elimination of both ability-to-elect districts, 
but noting that reduction to one ability-to-elect 
district may have been permitted).

Finally, as racially polarized voting diminishes, 
minority ability to elect may require ever-smaller 
percentages of the voting population. Cf. Bartlett v. 
Strickland, 556 U.S. 1, 25 (2009) (opinion of Kennedy, 
J.). The Department’s guidelines recognize this fact. 
“In determining whether the ability to elect * * * 
continues in the proposed [redistricting] plan, the 
Attorney General does not rely on any predetermined 
or fixed demographic percentages at any point in the 
assessment.” 2011 Guidelines, 76 Fed. Reg. at 7471. 
“Rather, in the Department’s view, this determination 
requires a functional analysis of the electoral behavior 
within the particular jurisdiction,” including “voting 
patterns within the district, voter registration and 
turnout information.” Ibid. These are not static 
factors; nor, consequently, is the racial composition of 
an ability-to-elect district. See ibid. 6 Amici’s 
suggestion that majority-minority districts will be 
frozen in perpetuity lacks foundation, and this Court

6 Petitioner’s amici inexplicably contend that the amended 
retrogression standard “requires preserving every functioning ‘in­
fluence’ district.” Nix Br. 30. They fail to address the authority 
to the contrary. See LaRoque, 831 F. Supp. 2d at 223 (“Influence 
districts do not fit within the terms of the amendments because 
voters who only ‘influence’ an election are not able to choose, and 
then elect, the candidates who best represent them.”); Texas v. 
United States, 831 F. Supp. 2d 244, 265 (D.D.C. 2011) (“Redis­
tricting can have no retrogressive effect on an ability to elect that 
has not yet been realized.”). Nor do amici identify a single denial 
of preclearance on this basis.



23

should not presume that the 2006 amendments to 
Section 5 will be applied in that manner.

F. The Amended Retrogression Standard Has 
Been Applied Without Incident In A Full Re­
districting Cycle

The 2006 extension of the Voting Rights Act was 
intended to cover two full redistricting cycles. See 
Shelby Cnty., 811 F. Supp. 2d at 499. The first cycle, 
following the 2010 Census, is mostly complete. Only 
Texas—which proceeded directly to a three-judge 
panel—had its redistricting plan blocked as
retrogressive. See Texas v. United States, 2012 WL 
3671924. Every other statewide redistricting plan met 
the retrogression standard. Department of Justice, 
Status of Statewide Redistricting Plans, available at 
http://www.justice.gov/crt/about/vot/sec_5/statewides. 
php (last accessed Feb. 1, 2013). Moreover, only 
approximately 15 local jurisdictions have failed to 
satisfy the retrogression standard, and petitioner’s 
amici fail to identify a single one in which the 2006 
amendments were determinative.

Given this record, there is no credible argument 
that the 2006 retrogression amendments increase the 
preclearance burden imposed on covered jurisdictions. 
In fact, as the LaRoque Court recognized, the 
amendments likely have made the preclearance process 
more straightforward. See LaRoque, 831 F. Supp. 2d 
at 218-219 (citing legislative concerns that Georgia 
decision made “preclearance decisions ‘less predictable 
and more open to subjective judgments, individual 
preconceptions and even political biases’ ”); Fed. Resp. 
Br. 46 (collecting legislative history reflecting these 
concerns).

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


24

III. THE JUSTICE DEPARTMENT’S RECORD
OF ENFORCEMENT IS CONSISTENT WITH 
THE TEXT AND PURPOSE OF SECTION 5
Recent enforcement of Section 5 has reflected two 

priorities: protecting minority voting rights and due 
regard for state and local interests in enforcement of 
nondiscriminatory voting laws. The record of 
approximately 30 denials of preclearance since 2006 
reflects these priorities. See pp. 25-28, infra.

Instead of addressing this record, petitioner’s amici 
focus on a supposed disparity between the ability of 
uncovered jurisdictions to condition the right to vote 
on the presentation of photo ID and the inability of 
covered jurisdictions to do so. Neither the facts nor 
the law support their argument. The Justice 
Department has granted preclearance to photo ID laws 
in the State of Georgia, and in covered jurisdictions in 
Michigan and New Hampshire; and the district court 
has precleared South Carolina’s photo ID law for 
future application. South Carolina v. United States, — 
F. Supp. 2d —, No. 12-203, 2012 WL 4814094, at *19- 
21 (D.D.C. Oct. 10, 2012). Moreover, photo ID laws 
in covered jurisdictions, like those in uncovered 
jurisdictions, rise or fall depending on the burden 
imposed on voters and the ameliorative processes 
accorded voters for whom that burden is too great.

In addition, amici’s emphasis on long-past Section 
5 enforcement practices in order to suggest concerns 
about the Act going forward is misplaced and 
inaccurate. Enforcement decisions made in the 1980s 
and 1990s—prior to this Court’s more recent relevant 
decisions—shed little light on the “current burdens” 
imposed by Section 5. Northwest Austin Mun. Utility 
Dist. No. Onev. Holder, 557 U.S. 193, 204 (2009). To



25

the extent past decisions are demonstrative of 
anything, it is the “[p]ast success” of the Act that this 
Court has consistently recognized. See, e.g., ibid.

A. Recent Enforcement Of Section 5 Demon­
strates Its Continued Vitality

A review of the approximately 30 preclearance 
denials since 2006 reveals the importance of Section 5 
in precluding discriminatory voting changes before 
proponents of such changes are permitted to “win[] 
elections” under them “and gain[] the advantage of 
incumbency.” Shelby Cnty. v. Holder, 679 F.3d 848, 
861, 872 (D.C. Cir. 2012). Rather than giving rise to 
constitutional concerns, this record of enforcement has 
remedied them.7

For example, the Justice Department has refused 
to preclear a number of voting laws with the purpose or 
effect of limiting minority ballot access. Despite a 
continued increase in Hispanic voters, Gonzales 
County, Texas, proposed to replace professional 
translation of election materials with Google-translate 
and to reduce the number of bilingual poll workers. 
See Letter from Thomas E. Perez, Assistant Attorney 
General, to Robert T. Bass (Mar. 12, 2010). Citing 
retrogressive purpose and effect, the Department 
denied preclearance. Ibid. Similarly, Runnels County, 
Texas, proposed to replace the bilingual worker 
assigned to each polling place with a single

7 In addition, as noted by Respondent, this Court has con­
sidered post-enactment evidence when determining whether Con­
gress validly exercised its authority under the Reconstruction 
Amendments. Fed. Resp. Br. 25, n. 3; see, e.g., Tennessee v. 
Lane, 541 U.S. 509, 524-525 (2004); Nevada D ep’t  of Human Res. 
v. Hibbs, 538 U.S. 721, 733-734 & nn. 6-9 (2003).



26

(purportedly bilingual) county official available by 
phone. See Letter from Thomas E. Perez, Assistant 
Attorney General, to Melissa Ocker (June 28, 2010). 
Again noting retrogressive purpose and effect, the 
Department denied preclearance. Ibid. (Runnels 
County had also improperly failed to submit the 
change for preclearance immediately, and, while the 
change was in effect, one “bilingual” official made 
available by telephone was not, in fact, proficient in 
Spanish. Ibid.) In addition, the Department denied 
preclearance to a Georgia voter verification process 
that errantly and disproportionately struck minority 
voters from the voting rolls, unless those voters took 
additional steps to verify their eligibility—including 
appearing at the county courthouse with three days’ 
notice. Letter from Loretta King, Assistant Attorney 
General, to Hon. Thurbert E. Baker (May 29, 2009); 
see also Morales v. Handel, No. 08-03172, Dkt. Entry 
113 (N.D. Ga. Aug. 24, 2010) (discussing Georgia’s 
revisions to its verification process and subsequent 
Justice Department preclearace).

The Justice Department has also refused to 
preclear voting changes with the purpose or effect of 
limiting minority representation at the very time that 
representation was about to shift the balance of power. 
For example, the African-American voting-aged 
population in the Cities of Augusta and Richmond, 
Georgia, which share a consolidated municipal 
government, has been steadily growing. See Letter 
from Thomas E. Perez, Assistant Attorney General, to 
Dennis R. Dunn (Dec. 21, 2012). The 2010 Census 
reflected that African Americans had reached a 
majority of the voting-age population. Ibid. Shortly 
thereafter, the Georgia legislature passed a bill drafted 
so as to apply only to Augusta-Richmond, which



27

rescheduled municipal elections from November (when 
African-American turnout is high) to July (when it is 
not). Ibid. Preclearance was rejected on the basis of 
retrogressive purpose and effect. Ibid. In Charles Mix 
County, South Dakota, the county elected its 
commissioners from three single-member districts, one 
of which was a Native American ability-to-elect 
district. See Letter from Grace C. Becker, Acting 
Assistant Attorney General, to Sara Frankenstein 
(Feb. 11, 2008). Just as a Native American won a 
primary in that district, and was to run unopposed to 
be the county’s first Native American commissioner, 
the county increased its commission to include five 
representatives—the additional two hailing from at- 
large districts. Ibid. The proposed change was denied 
preclearance. Ibid. In the Beaumont Independent 
School District of Jefferson County, Texas, African- 
American and Hispanic voters—constituting 
approximately 56 percent of the population—had 
become the majority in four of seven districts. See 
Letter from Thomas E. Perez, Assistant Attorney 
General, to Melody T. Chappel (Dec. 21, 2012). The 
district redistricted, creating five districts and two at- 
large seats. Ibid. Only one African-American
candidate had won an at-large election for any office in 
that district in the prior ten years. Ibid. Citing 
retrogressive purpose and effect, the Department 
denied preclearance. Ibid.

Unwilling to grapple with this record of 
enforcement, amici focus instead on photo ID 
requirements and the illusory fear that the Justice 
Department will mandate “max-black” redistricting. 
As addressed below, they fail to identify any 
constitutional concerns.



28

B. Voter ID Enforcement Demonstrates The Ef­
fective Functioning Of Section 5

Petitioner’s amici asserted dichotomy of uncovered 
states free to require voters to present photo ID and 
covered states incapable of enforcing such a 
requirement, von Spakovsky Br. 17-21, is wrong on 
both the facts and the law.

First of all, among the photo ID laws passed by 
covered jurisdictions since 2006, more have been 
cleared (New Hampshire, Georgia, and Michigan), 
than not (Texas and South Carolina, the latter blocked 
for the 2012 election only). In addition, the Justice 
Department has precleared a number of state voter ID 
laws that require voters to present one of a broader 
class of non-photo IDs, like Social Security cards and 
utility bills. E.g., Letter from T. Christian Herren, Jr., 
Chief, Voting Section to Joshua N. Lief (Aug. 20, 2012) 
(Virginia); see Fed. Resp. Br. in Opp. at 32 (discussing 
Arizona and Virginia preclearance). And covered 
jurisdictions are not the only ones who find their photo 
ID requirements subject to immediate challenge. See, 
e.g., Applewhite v. Commonwealth, 54 A.3d 1, 3-5 (Pa. 
2012) (expressing serious reservations regarding burden 
imposed by Pennsylvania’s photo ID law due to delay 
in issuing required IDs); Applewhite v. 
Commonwealth, No. 330 M.D. 2012, 2012 WL 
4497211, at *3 (Pa. Commw. Ct. Oct. 2, 2012) 
(enjoining enforcement of photo ID law for the 2012 
election).

Second, as a legal matter, amici’s argument relies 
on a misinterpretation of this Court’s decision in 
Crawford v. Marion County, 553 U.S. 181 (2008). 
Crawford does not grant an automatic constitutional 
pass to any and all photo ID requirements. Rather, in



29

rejecting a facial challenge, the Court stressed the 
paucity of the evidentiary record of unreasonable 
burdens imposed by Indiana’s particular photo-ID 
requirement and observed that the petitioners had “not 
introduced evidence of a single Indiana resident who 
will be unable to vote as a result” of the law. Id. at 
188-189, 204. The Court’s analysis focused on the 
burden imposed on Indiana voters, which it found to be 
minimal; the required photo IDs were free and widely 
available, and a trip to obtain one did not “represent a 
significant increase over the usual burdens of voting.” 
Id. at 198-200.8 The Court further stressed that any 
such burden was mitigated by the fact that voters 
lacking photo ID would not be denied ballot access. 
Id. Instead, they were afforded an opportunity to cast 
a provisional ballot to be supplemented, within 10 
days, by an affidavit indicating, among other 
possibilities, that the “affiant is indigent and unable to 
obtain proof of identification.” Id. at 186 n.2 (quoting 
Ind. Code Ann. § 3-11.7-5-2.5(c)). And the Court 
stressed that the statute remained subject to an as- 
applied challenge, particularly as to those burdens 
“imposed on voters who cannot afford or obtain a birth 
certificate and who must make a second trip to the 
circuit court clerk’s office after voting.” Id. at 200.

Consistent with this Court’s analysis in Crawford, 
the Justice Department’s preclearance scrutiny of 
photo ID laws has focused on the burden imposed on 
protected voters by the particular statutes at issue and 
any provisions aimed at mitigating that burden.

8 The documents required to obtain a photo ID, e.g., a birth 
certificate, were available for $3 to $12. Crawford, 553 U.S. at 
198 n.17. The Crawford petitioners’ facial challenge did not iden­
tify anyone incapable of paying this fee.



30

Accordingly, the Department has precleared photo 
ID laws where appropriate, as in New Hampshire, 
Michigan, and Georgia. New Hampshire’s photo ID 
law, for example, provides for issuance of free photo 
IDs and permits voters without photo ID to vote upon 
execution of an affidavit affirming his or her identity, 
residence, and registration. See N.H. Rev. Stats. 
§§ 659:13, 260:21. Finding that these requirements 
neither were enacted with a discriminatory purpose nor 
would cause a retrogressive effect, the Department 
precleared the law. See Letter from T. Christian 
Herren, Jr., Chief, Voting Section, to J. Gerald 
Herbert (Sept. 4, 2012). Michigan’s photo ID law, 
which permits a wide range of photo IDs, also allows 
any voter unable to obtain a photo ID to vote upon 
executing an affidavit affirming his or her identity. See 
Mich. Comp. Laws § 168.523. Finding no underlying 
discriminatory purpose nor retrogressive effect, the 
Department precleared the law. See Letter from Grace 
C. Becker, Acting Assistant Attorney General, to 
Brian DeBano (Dec. 26, 2007).

Similarly, Georgia requires in-person voters to 
present photo IDs that are available free of charge at 
offices in each of Georgia’s (many) counties. Ga. Code 
Ann. § 21-2-417.1(a). But every voter is afforded the 
opportunity to vote by absentee ballot, which may be 
obtained without photo ID. E.g., Democratic Party of 
Ga., Inc. v. Perdue, 288 Ga. 720, 726 (2011). These 
factors supported the Justice Department’s conclusion 
that the law is compliant with Section 5. Letter from 
John Tanner, Chief. Voting Section, to Thurbert Baker 
Apr. 21. 2006 *

'  Beta the Mieaigaa ia c  G eerca prwlearaaee deeisioES pre­
dared Q a r b rd



31

By contrast, where a photo ID law imposes a 
disproportionate burden on minority voters and does 
not provide any means to mitigate that burden, 
Section 5 will bar its enforcement. See Texas v. 
Holder, No. 12-cv-128, 2012 WL 3743676, at *26-30, 
*32-33 (D.D.C. Aug. 30, 2012). Texas’s photo ID law, 
a “strict, unforgiving” requirement described by the 
district court as “the most stringent in the country,” 
required all voters to present one of a limited number 
of photo IDs. Id. at *33, *1. The most readily 
obtainable ID could be acquired from the Texas 
Department of Public Safety (“DPS”). Id. But 
“almost one-third of Texas’s counties” lack a DPS 
office, and undisputed evidence reflected that certain 
voters would need to travel “200 to 250 mile[s] round 
trip” to the nearest office. Id. at *28. On this 
evidence, the court concluded that “when the closest 
office is 100 to 125 miles away,” the “trip—especially 
for would-be voters having no driver’s license [i.e., 
those actually in need of obtaining a photo ID]— 
constitutes a ‘substantial burden’ on the right to vote.” 
Ibid.10 Texas conceded that the voters unable to meet 
this burden disproportionately would be those 
protected by Section 5. Id. at *29.

In addition, Texas provided no alternative ballot 
access for voters unable to obtain a photo ID (aside 
from limited exceptions for the disabled). See Texas, 
2012 WL 3743676, at *29. Indeed, the Texas 
legislature had rejected an amendment that would

10 Further, the required photo ID could not be obtained 
without documentation costing at least $22, which the Texas 
court found to be more burdensome than the Indiana photo ID 
law upheld in Crawford and the Georgia photo ID law precleared 
by the Justice Department. Texas, 2012 WL 3743676, at *15-16.



32

have “allowed indigent persons to cast provisional 
ballots without photo ID .” Id. at *33. Given the 
burdens it imposed, without material ameliorative 
provisions, the Texas court concluded that the photo 
ID requirement statute would have a retrogressive 
effect. Id. at *1. Thus, Section 5 barred enforcement 
of Texas’s photo ID law because it was defined by 
characteristics that the laws in New Hampshire, 
Michigan, and Georgia lacked: for many voters the act 
of obtaining the required photo ID was substantially 
more burdensome than the act of voting itself, see 
Crawford, 553 U.S. at 199, and Texas provided no 
alternate ballot access for those voters.

The denial of preclearance to South Carolina lies 
between the poles of New Hampshire, Michigan and 
Georgia, on the one hand, and Texas, on the other— 
and illustrates Section 5’s continuing efficacy. As 
enacted, South Carolina’s photo ID requirement raised 
certain retrogression concerns. These included the 
limited availability of the required IDs and the 
ambiguous scope of the alternative ballot access, which 
permitted a voter without photo ID to vote only after 
executing an affidavit stating that he or she “suffers 
from a reasonable impediment that prevents the 
elector from obtaining photographic identification.” 
See Letter from Thomas Perez, Assistant Attorney 
General, to C. Havird Jones, Jr. (Dec. 23, 2011). As 
the Justice Department noted, the “exception’s 
vagueness raises the possibility that it will be applied 
differently from county to county * * * and thus risks 
exacerbating rather than mitigating the retrogressive 
effect of the new [photo ID] requirement.” Ibid. In 
addition, there was a concern that the exception was 
circular. The South Carolina law required the affidavit 
to be notarized, which in turn may have required a



33

photo ID. See South Carolina, 2012 WL 4814094, at 
*7. Noting these concerns, among others, the 
Department denied preclearance, subject to 
reconsideration should South Carolina provide 
additional information concerning its enforcement 
plans.

Before a three-judge panel of the district court, 
South Carolina committed to an interpretation of the 
photo ID requirement under which, the court 
concluded, the law would not be retrogressive in 
purpose or effect. See South Carolina, 2012 WL 
4814094, at *6 (“accepting] and adopting], as a 
condition of pre-clearance, the expansive interpretation 
offered by the South Carolina Attorney General and 
the South Carolina State Election Commission”); id. at 
*21 (Bates, J., concurring) (“[T]o state the obvious, 
[the law] as now pre-cleared is not the [law] enacted in 
May 2011. It is understandable that the Attorney 
General * * * would raise serious concerns about South 
Carolina’s voter photo ID law as it then stood.”). This 
interpretation ensured that the alternative ballot 
access was expansive. Though the plain language of 
the statute required voters without a photo ID to 
attest to a “reasonable impediment” to obtaining one, 
South Carolina construed the statute to permit a voter 
to cast a ballot simply by attesting to his or her 
identity and his or her reason for failing to obtain a 
photo ID. Id. at *7. No reason given would be 
rejected as unreasonable unless demonstrably false. 
Ibid. In addition, South Carolina committed that the 
“process of filling out the [affidavit] must not become a 
trap for the unwary,” and represented that would not 
become a de facto literacy test. Id. at *9-10. These 
constructions—rendered, as the district court noted, in 
“real time,” id. at *4—ensured that the State’s interest



34

in preventing voting fraud would be met without 
retrogressive consequences. Id. at *5.11

The South Carolina decision demonstrates the 
continued wisdom of Section 5. Rather than 
permitting a vague ballot access provision to take 
effect, subject to a multitude of potentially 
retrogressive interpretations, the Section 5 process led 
South Carolina to construe its law consistent with the 
unencumbered exercise of voting rights. As two of the 
panel’s judges noted, Section 5 was the catalyst to this 
“evolutionary process.” South Carolina, 2012 WL 
4814094, at *21 (Bates, J., concurring).

C. Past Enforcement Of Section 5 Does Not 
Raise Current Constitutional Concerns

Justice Department regulations expressly provide 
that the enforcement of Section 5 “will be guided by 
the relevant decisions of the Supreme Court of the 
United States.” 28 C.F.R. 51.56. In its preclearance 
decisions, the Department “shall make the same 
determination that would be made by the court in an 
action for declaratory judgment under [S]ection 5.” 28 
C.F.R. 51.52(a). Accordingly, where this Court’s 
decisions have evolved, see, e.g., Miller v. Johnson, 
515 U.S. 900, 923-927(1995), Section 5 enforcement has 
evolved in kind. Petitioner’s amici provide no evidence

11 Because the statute contemplated an eleven-month ramp- 
up period, and because certain of South Carolina’s positions con­
gealed only weeks before the 2012 election and required standard­
izing and simplifying the affidavit form, the district court could 
not conclude that the photo ID requirement was immediately 
compliant with Section 5 with respect to the 2012 election. South 
Carolina. 2012 WL 4814094, at *17-18. Instead, the court “pre­
cleared the requirement] for future elections.” Id. at *17 (em­
phasis in original .



35

that either the Justice Department or covered 
jurisdictions have engaged in prohibited minority 
maximization since this Court’s decision in Miller. 
Amici’s continued reference to “max-black” 
redistricting and other straw men prohibited by this 
Court’s precedent is therefore misplaced. Amici 
provide the Court no reason to doubt that the Justice 
Department’s lengthy track record of assiduous 
adherence to this Court’s precedent and to the 
Department’s own regulations embodying that 
precedent will continue. See, e.g., Washington State 
Grange v. Washington State Republican Party, 552 
U.S. 442, 449-450 (2008) (“In determining whether a 
law is facially invalid, we must be careful not to * * * 
speculate about ‘hypothetical’ or ‘imaginary’ cases.”); 
N a t’l  Archives & Records Admin, v. Favish, 541 U.S. 
157, 174 (2004) (and cases cited) (in absence of clear 
evidence to the contrary, presumption of regularity 
attaches to acts of public officers in discharging official 
duties).



36

CONCLUSION
For the foregoing reasons, neither the 2006 

amendments to Section 5, nor the Justice 
Department’s record of Section 5 enforcement poses 
constitutional concerns. The judgment of the Court of 
Appeals should be affirmed.

Respectfully submitted,

D o u g l a s  H a l l w a r d - D r ie m e ie r  
E l iz a b e t h  N . D e w a r  
M . P a t r ic k  M o o r e , J r  
R o p e s  & Gr a y  L L P

February 2013





* T *Est.j[941

WILSON-EPES PRINTING
ta, inc.

E-Mail Address: 
briefs@wilsonepes. com

Web Site:
www.wilsonepes.com

775 H Street, N.E. 
Washington, D.C. 20002

Tel (202) 789-0096 
Fax (202) 842-4896

No. 12-96

S h elby  Co u n t y , Ala bam a ,

Petitioner,
v.

E ric H. H o l d e r , J r ., Attorney  Ge n e r a l , et a l .,

Respondent.

AFFIDAVIT OF SERVICE

I HEREBY CERTIFY that on February 1, 2013, three (3) copies of the BRIEF OF DICK 
T h o r n b u r g h , D r e w  S. D a y s , III, J o h n  R. D u n n e , B il l  La n n  L e e , J. S t a n l e y  P o t t in g e r , 
P a u l  F. Ha n c o c k , J a m e s  P. Tu r n e r , W il lia m  R. Y e o m a n s , B r ia n  K. La n d s b e r g , a n d  
G il d a  R. D a n ie l s  a s  A m ic i Cu riae  in  S u p p o r t  o f  R e s p o n d e n t s  in the above-captioned 
case were served, as required by U.S. Supreme Court Rule 29.5(c), on the following:

B ert  W. Re in  
Counsel o f Record 

W iley  Re in  LLP  
1776 K Street, NW 
Washington, DC 20006 
(202) 719-7000
Counsel for Petitioner, Shelby County,

Alabama
D ebo  P. Ad eg b ile  

Counsel o f Record
NAACP Leg al  D e f e n s e  & E du ca tio n al  

F u n d , In c .
99 Hudson Street, 16th Floor 
New York, NY 10013 
(212) 965-2249
Counsel for Respondent,

Earl Cunningham, et al.
J on  M. Gr e e n b a u m  

Counsel o f Record
La w y er s’ Com m ittee  for  Civil  R ights 

U n d e r  Law
1401 New York Avenue, NW 
Suite 400
Washington, DC 20005 
(202) 662-8315
Counsel for Respondent, Bobby Lee Harris

La u g h lin  McD onald  
Counsel o f Record 

Am er ic an  Civil  Lib er tie s  U n io n  
F o u n d a t io n  

230 Peachtree Street NW 
Atlanta, GA 30303-1504 
(404) 523-2721
Counsel for Respondent, Bobby Pierson, et al.
D onald  B. V er r illi, J r .

Counsel o f Record
Solicitor General o f the United States 

U n it e d  S tates D epa r tm en t  of  J u stic e  
950 Pennsylvania Avenue, NW 
Washington, DC 20530-0001 
(202) 514-2217
Counsel for United States o f America

http://www.wilsonepes.com


The following addresses have been served electronically:

Meritsbriefs@supremecourt.gov 
brein@wileyrein.com 
dadegbile@naacpldf.org 
jgreenbaum@lawyerscommittee.org 
lmcdonald@aclu.org 
SupremeCtBriefs@USDOJ.gov 
Douglas.Hallward-Driemeier @ropesgray.com

R. D ea n  W illis 
W il so n -Ep e s  P r in t in g  Co m pa n y , In c . 
775 H Street, N.E.
Washington, D.C. 20002 
(202) 789-0096

Sworn to and subscribed before me this 1st day of February, 2013.

so Y '"  A

f l OTARy • ". m -

■ ^ P U B L I C  v-

, C < OF COVy

My commission expires June 14, 2013.

Ch r isto ph e r  R. D orsey  
N otary P ublic  
District of Columbia

mailto:Meritsbriefs@supremecourt.gov
mailto:brein@wileyrein.com
mailto:dadegbile@naacpldf.org
mailto:jgreenbaum@lawyerscommittee.org
mailto:lmcdonald@aclu.org
mailto:SupremeCtBriefs@USDOJ.gov


No. 12-96

In  T h e

Supreme Court of tfje fHntteb States;

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

V.

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

On Writ of Certiorari to the  
United States Court o f Appeals 

for the D istrict of Columbia

BRIEF OF DICK THORNBURGH, DREW S. DAYS, III, 
JOHN R. DUNNE, BILL LANN LEE, J. STANLEY 

POTTINGER, PAUL F. HANCOCK, JAMES P. TURNER, 
WILLIAM R. YEOMANS, BRIAN K, LANDSBERG, AND 

GILDA R. DANIELS AS A M IC I CU RIA E  IN SUPPORT OF

As required by Supreme Court Rule 33.1(h), I certify that the document contains 
8,954 words, excluding the parts of the document that are exempted by the Supreme 
Court Rule 33.1(d).

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

Executed on February 1, 2013

RESPONDENTS

CERTIFICATE OF COMPLIANCE

Christopher R. Dorsey ^  
Wilson-Epes Printing Co., Inc.