Northwest Austin Municipal Utility Distr. One v. Holder Brief Amici Curiae Katzenbach et al.

    No. 08-322

In the

Supreme (Court of th z IHnitrti States

NORTHWEST AUSTIN MUNICIPAL UTILITY 
DISTRICT NUMBER ONE,

Appellant,
u.

ERICH. HOLDER, JR.,
Attorney General of the United States, et al.,

Appellees.

O n A ppeal  from  the  U nited  States D istrict C ourt 
for  the D istrict of C olum bia

B r ie f  of  N ic h o la s  d e B . K a t z e n b a c h , D r e w  S. D a y s , III, 
J o h n  R. D u n n e , B r ian  K. L a n d sb e r g , B ill  L an n  L e e , 

J. St a n l e y  P o t tin g e r , and  J a m e s  P  T u rn er  
a s  A mici C uriae in  S u pp o r t  of  A p p e l l e e s

E lissa J. Preheim 
David D. Fauvre 
Sheri L. Shepherd 
A rnold & Porter LLP  

555 Twelfth St. N.W. 
Washington, D.C. 20004 
(202) 942-5000

Samuel R. Bagenstos 
Counsel of Record 

405 Hilgard Ave.
Los Angeles, CA 90095 
(310) 267-4728

Counsel for Amici Curiae

March 25, 2009

221695

$
C O U N S E L  PRESS 

(800) 274-3321 • (800) 359-6859



I

TABLE OF CONTENTS
Page

TABLE OF CITED AUTHORITIES ...............  ii

STATEMENT OF INTEREST
OF AMICI CURIAE ........................................ 1

SUMMARY OF ARGUMENT ..........................  5

ARGUM ENT......................................................... 8

I. The Constitutionality Of The Amendments 
To Section 5’s Preclearance Standard Is 
Not Properly Before The C o u rt.............  8

II. The Amendments To Section 5’s 
Preclearance Standard Are Constitutional 

...........................................................................  11

A. By Requiring Denial of Preclearance 
to Changes with “Any Discriminatory 
Purpose,” Congress Merely Incorpo­
rated This Court’s Own Standard for
Unconstitutional Discrimination----- 12

B. The Amended Retrogression Standard 
Does Not Demand Violations of Shaw I 
and M iller ...........................................  20

CONCLUSION......... ..........................................  30



ii

TABLE OF CITED AUTHORITIES

FEDERALCASES

Adarand Constructors, Inc. v. Pena,
515 U.S. 200 (1995) .......................................... 2,18

Bartlett v. Strickland,
No. 07-689, 2009 WL 578634
(U.S. Mar. 9, 2009) ...........................................  26

Beer v. United States,
425 U.S. 130 (1976) ............................  16, 21, 22, 29

Blodgett v. Holden,
275 U.S. 142 (1927) .......................................... 9

Bushv. Vera,
517 U.S. 952 (1996) ........................................ 23, 28

City o f Boerne v. Flores,
521 U.S. 507 (1997) .......................................... 8

City o f Mobile v. Bolden,
446 U.S. 55 (1980)........................................ 6, 13, 15

City of Richmond v. United States,
422 U.S. 358 (1975) .................................... 7, 22, 28

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

Page

13, 29



Cited Authorities
Page

Clinton v. Jones,
520 U.S. 681 (1997) ................................ . 11

Easley v. Cromartie,
532 U.S. 234 (2001) .................................. . 26

FW/PBS, Inc. v. City of Dallas,
493 U.S. 215 (1990) .......................................... 8

Georgia v. Ashcroft,
539 U.S. 461 (2003) ..................................  23, 24, 25

Georgia v. Ashcroft,
195 F. Supp. 2d 25 (D.D.C. 2002)..................... 29

League o f United Latin Am. Citizens v. Perry,
548 U.S. 399 (2006) .......................................... 26

Lopez v. Davis,
531 U.S. 230 (2001) .......................................... 8

Lopez v. Monterey County,
525 U.S. 266 (1999) .........................................  29

Lorillard v. Pons,
434 U.S. 575 (1978) .........................................  28

Massachusetts v. Mellon,
262 U.S. 447 (1923) .........................................  9



IV

Cited Authorities
Page

Metro Broad,., Inc. v. F.C.C.,
497 U.S. 547 (1990) ................... ......................  2, 18

Miller v. Johnson,
515 U.S. 900 (1995) ......................................passim

Morris v. Gressette,
432 U.S. 491 (1977) .......................................... 16

Personnel Adm’r v. Feeney,
442 U.S. 256 (1979) .......................................... 14

Presley v. Etowah County Comm’n,
502 U.S. 491 (1992) .......................................... 10

Reno v. Bossier Parish Sch. Bd.,
520 U.S. 471 (1997) .......................................... 12

Reno v. Bossier Parish Sch. Bd.,
528 U.S. 320 (2000) ...................................  5, 12, 13

Rogers v. Lodge,
458 U.S. 613 (1982) ....................................  6, 13, 15

Shaw v. Hunt,
517 U.S. 899 (1996) .......................................... 17

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



V

South Carolina v. Katzenbach,
383 U.S. 301 (1966) .........................................  3, 29

Summers v. Earth Island Inst.,
129 S. Ct. 1142 (2009) ...................................... 10

Tennessee v. Lane,
541 U.S. 509 (2004) .......................................... 9, 13

Tilton v. Richardson,
403 U.S. 672 (1971) .......................... .............. 20

United Jewish Orgs. v. Carey,
430 U.S. 144 (1977) ......................................... 2, 18

United States v. Georgia,
546 U.S. 151 (2006) .........................................  13

United States v. Salerno,
481 U.S. 739 (1987) .........................................  9

Village o f Arlington Heights 
v. Metro. Hous. Dev. Corp.,
429 U.S. 252 (1977) ........................................ 14, 15

Washington v. Davis,
426 U.S. 220 (1976) ..............................  6, 12, 13, 15

Washington State Grange
v. Washington State Republican Party,
128 S. Ct. 1184 (2008) ............................

Cited Authorities
Page

11



VI

Wilson v. Layne,
526 U.S. 603 (1999) .......................................... 19

Wright v. Rockefeller,
376 U.S. 52 (1964).............................................  15

CONSTITUTION AND STATUTES

U.S. C on st , art. I l l ...............................................  9

U.S. C on st , amend. XIV ................................... passim

U.S. C on st , amend. XV ............................ 6, 13,14, 15

Section 2 of the Voting Rights Act of 1965,
42 U.S.C. § 1973 ...............................................  12

Section 5 of the Voting Rights Act of 1965,
42 U.S.C. § 1973c ...........................................passim

MISCELLANEOUS

Department of Justice, Guidance Concerning 
Redistricting and R etrogression Under 
Section 5 of the Voting Rights Act, 66 Fed.
Reg. 5412 (Jan. 18, 2001) ........................... passim

Department of Justice, Revision of Procedures 
for the Administration of Section 5 of the 
Voting Rights Act of 1965, 52 Fed. Reg. 486 
(Jan. 6, 1987).................................................  7, 22, 28

Cited Authorities
Page



vii

Cited Authorities

H.R. R ep. N o. 109-478 (2006) ..............................

Letter from Bill Lann Lee, Acting Assistant 
Attorney General, to John C. Henry, Esq. 
(May 20,1998)...................................................

Voting Rights Act: Evidence o f Continued Need, 
H earing Before the Subcomm. on the 
C onstitution o f the H. Comm, on the 
Judiciary, 109th Cong., Serial No. 109-103 
(2006)........... .....................................................

Voting Rights Act: Section 5 o f the Act — 
History, Scope and Purpose: Hearing Before 
the Subcomm. on the Constitution of the H. 
Comm, on the Judiciary, 109th Cong., Serial 
No. 109-79, Vol. I (2005) ..................................

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

Voting Rights Act: The Continuing Need for  
Section 5: Hearing Before the Subcomm. on 
the Constitution o f the H. Comm, on the 
Judiciary, 109th Cong., Serial No. 109-75 
(2005) ..................................................................

Page

25

23

27

10

14, 17

27



1

STATEMENT OF INTEREST OF AMICI CURIAE1

Amici are former Attorney General of the United 
States Nicholas deB. Katzenbach and former officials in 
the Civil Rights Division of the United States Department 
of Justice. Collectively, they have served during 
both Democratic and Republican administrations. 
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. § 1973c. Amici 
believe that their collective experience will illuminate the 
issues before the Court. Amici write this brief principally 
to respond to the brief filed on behalf of Abigail 
Thernstrom and five former Justice Department officials 
(“Thernstrom Amici”). That brief urges this Court to 
strike down the reauthorized Section 5 on the ground that 
it authorizes or demands unconstitutional race-based 
districting. The Thernstrom Am ici’s argument relies 
principally on the ground that the United States 
Department of Justice, which administers the statute, is 
purportedly a serial violator of the Constitution with a 
“proven track record of using [its] power to require at least 
presumptively unconstitutional racial districting.” 
Thernstrom Br. 34.

But that supposed “track record” involves a handful 
of cases during a brief period immediately following the

1 No counsel for a party authored this brief in whole or in 
part, and no such counsel or party made a monetary contribution 
intended to fund the preparation or submission of this brief. 
No person other than amici curiae or their counsel made a 
monetary contribution to its preparation or submission. The 
parties have consented to the filing of this brief and such 
consents are being lodged herewith.



2

1990 census— ie ., nearly two decades ago—when this 
Court’s precedents, exemplified by United Jewish 
Organizations v. Carey, 430 U.S. 144 (1977), appeared 
to permit the use of race in drawing electoral districts 
so long as the district lines did not dilute the votes of 
any group, and when this Court was not even applying 
strict scrutiny to “benign racial classification^]” adopted 
by the federal government, Metro Broadcasting, Inc. 
v. F.C.C., 497 U.S. 547,563 (1990). Since this Court made 
clear in Shaw v. Reno, 509 U.S. 630 (1993) (Shaw I), and 
Miller v. Johnson, 515 U.S. 900 (1995), that districting 
decisions trigger strict scrutiny when race is the “the 
predominant factor motivating the legislature’s decision 
to place a significant number of voters within or without 
a particular district,” id. at 916—and since this Court 
made clear in Adarand Constructors, Inc. v. Pena, 515 
U.S. 200 (1995), that all racial classifications, state and 
federal, trigger strict scrutiny— the Department 
of Justice has assiduously complied with those 
principles. See Guidance Concerning Redistricting and 
Retrogression Under Section 5 of the Voting Rights Act, 
66 Fed. Reg. 5412, 5412-13 (Jan. 18, 2001). Amici who 
served in the Department after this Court’s decisions 
in Shaw I, Miller, and Adarand were responsible for 
ensuring that the Department complied with those 
decisions. Their experience contradicts the assertions 
in the Thernstrom brief. A list of amici follows.

Nicholas deB. Katzenbach. Nicholas deB. 
Katzenbach served as the Deputy Attorney General 
from 1962-1965 and as the Attorney General of the 
United States from 1965-1966, during which time he 
helped draft the Voting Rights Act of 1965 and he 
argued the constitutionality of the Voting Rights Act



3

before this Court in South Carolina v. Katzenbach, 383 
U.S. 301 (1966). He was Under Secretary of State from 
1966-1969. Prior to that time, he was a law professor for 
eight years and then served as Assistant Attorney 
General of the Office of Legal Counsel. Since his 
government service, Katzenbach has served as General 
Counsel of the IBM Corporation and as Chairman of 
the Board of Directors of the MCI Corporation.

Drew S. Days, III. Drew S. Days, III, served as 
Assistant Attorney General for Civil Rights from 1977- 
1981 and as Solicitor General of the United States from 
1993-1996. Prior to his service in the Civil Rights 
Division, he was an attorney for the NAACP Legal 
Defense and Education Fund. Since his government 
service, Days has been the Alfred M. Rankin Professor 
of Law at the Yale Law School.

John R. Dunne. John R. Dunne served as Assistant 
Attorney General for Civil Rights from 1990-1993. Prior 
to that time, he served over 20 years in the New York 
State Senate. Since his government service, Dunne has 
been an attorney in private practice.

Brian K. Landsberg. Brian K. Landsberg was an 
attorney in the Civil Rights Division from 1964-1986, 
where he served as Chief of the Appellate Section from 
1974-1986. In 1993, he returned to the Division to serve 
as Acting Deputy Assistant Attorney General for Civil 
Rights. Since his government service, Landsberg has 
been a professor at the McGeorge School of Law at the 
University of the Pacific. He is the author of two books 
on the Division’s civil rights enforcement: Enforcing Civil 
Rights - Race Discrimination and the Department of



4

Justice (Univ. Press of Kan. 1997) and Free at Last to 
Vote: Alabama and the Origins of the Voting Rights Act 
(Univ. Press of Kan. 2007).

Bill Lann Lee. Bill Lann Lee served as Assistant 
Attorney General for Civil Rights from 1997-2001. Prior 
to that time, he was an attorney for the NAACP Legal 
Defense and Education Fund for 18 years. Since his 
government service, Lee has been an attorney in private 
practice; he chaired the bipartisan National Commission 
on the Voting Rights Act.

J. Stanley Pottinger. J. Stanley Pottinger served 
as Assistant Attorney General for Civil Rights from 
1973-1977. Prior to that time, from 1970-1973, he served 
as D irector of the Office of Civil Rights at the 
Department of Health, Education, and Welfare. Since 
his government service, Pottinger has been a lawyer in 
private practice, an investment banker, and an author.

James E Turner. 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.



5

SUMMARY OF ARGUMENT

The arguments raised by the Thernstrom Amici are 
not properly before this Court. The Thernstrom Amici 
essentially concede that Section 5 of the Voting Rights 
Act, as amended in 2006, is valid prophylactic legislation 
as applied to voting changes other than redistricting; 
their argument relates exclusively to the statute’s 
application to claims of vote dilution in redistricting. But 
there is no redistricting issue in this case—nor could 
there be, as Appellant does not elect its board members 
from districts. Moreover, the Appellants have never 
challenged the amendments Congress made to the 
preclearance standard—whether in the district court, 
in their Jurisdictional Statement, or in their opening 
brief on the merits— and the district court did not 
address any such challenge. Indeed, the Thernstrom 
Amici make clear that what they seek is an advisory 
opinion regarding the constitutionality of amended 
Section 5 as it might be applied in the future to 
circumstances different from those at issue here. The 
Court accordingly should not reach the challenges 
asserted for the first time by the Thernstrom Amici.

In any event, the amendments to the preclearance 
standard are constitutional. The amendment to the 
purpose prong of Section 5 requires denial of 
preclearance to voting changes with “any discriminatory 
purpose.” 42 U.S.C. § 1973c(c). To be sure, that 
provision sweeps more broadly than did Section 5’s 
purpose prong as interpreted prior to 2006—which, per 
this Court’s decision in Reno v. Bossier Parish School 
Board, 528 U.S. 320, 328 (2000) (.Bossier II), required 
denial of preclearance only when a change was



6

motivated by a retrogressive purpose. But it sweeps no 
more broadly than does the Constitution itself. 
The amendment to the purpose provision merely 
incorporates the standard this Court has adopted to 
determine whether discrimination violates the 
Fourteenth and Fifteenth Amendments. See Rogers v. 
Lodge, 458 U.S. 613, 617 (1982); City o f Mobile v. 
Bolden, 446 U.S. 55, 67 (1980) (plurality opinion); 
Washington v. Davis, 426 U.S. 229, 240 (1976).

The Thernstrom Amici cannot point to anything in 
the amended purpose standard that in any way purports 
to “require race-based districting that subordinates 
traditional districting principles.” Thernstrom Br. 26. 
Rather, in arguing that the amended Section 5 triggers 
strict scrutiny and is unconstitutional, they simply 
assert that the Department of Justice will apply that 
provision—in violation of its plain text and of this 
Court’s decisions in Shaw I, supra, and Miller, supra— 
to require such districting. Their assertion rests on 
nearly two-decade-old allegations that “ [d]uring the 
1990 redistricting cycle” the Department found 
discriminatory purpose and denied preclearance—in a 
handful of cases involving statewide redistricting—when 
states “fail[ed] to maximize the number of majority- 
minority districts.” Thernstrom Br. 18. But those 
allegations involve conduct that occurred before Shaw 
I  and Miller—and before this Court made clear that 
strict scrutiny applies to all federally imposed racial 
classifications. There is no evidence that the 
Department has disregarded Shaw I  and Miller in its 
administration of the preclearance process in the years 
since this Court decided those cases. Indeed, the 
Department issued guidance that specifically



7

acknowledges that its preclearance decisions must take 
account of, and be constrained by, the principles adopted 
in those cases. See Guidance Concerning Redistricting 
and Retrogression Under Section 5 of the Voting Rights 
Act, 66 Fed. Reg. 5412, 5412-13 (Jan. 18, 2001). To 
conclude, from allegations of conduct in the 1990 
redistricting cycle, that a facially constitutional statute 
should be invalidated based on the presumption 
that the Department will apply that statute 
unconstitutionally, would fundamentally deny the 
respect this Court owes to coordinate branches of 
government.

Nor are the Thernstrom Amici correct to say that 
the amended Section 5 effects standard “locks in all 
existing majority-minority districts until 2031” and does 
so “regardless of intervening demographic or other 
changes.” Thernstrom Br. 26, 28. Both this Court and 
the Department of Justice have long recognized that 
demographic and constitutional constraints may require 
a voting change to be precleared even i f  it is 
retrogressive. See City of Richmond v. United States, 
422 U.S. 358, 370-72 (1975); Guidance Concerning 
Redistricting, supra, at 5412-13; Revision of Procedures 
for the Administration of Section 5 of the Voting Rights 
Act of 1965,52 Fed. Reg. 486,488 (Jan. 6,1987) (codified 
at 28 CFR § 51.54). Although the 2006 amendments 
changed the standard for determining what is 
retrogressive, it made absolutely no change to the 
settled principle that even a retrogressive plan must 
be precleared if the alternative is a constitutional 
violation. Thus, the amended Section 5 will never require 
maintenance of majority-minority districts that violate 
Shaw I  and Miller. The Thernstrom Amici are simply



8

wrong to suggest that the amended effects test bars all 
reductions in minority voting-age population in the 
districts covered by Section 5.

ARGUMENT

I. The Constitutionality Of The Amendments To
Section 5’s Preclearance Standard Is Not Properly
Before The Court

The Thernstrom Am ici’s constitutional challenge 
to the amendments to Section 5’s preclearance standard 
is not properly before this Court. Appellant did not 
present this argument below, in its Jurisdictional 
Statement, or in its opening brief before this Court. 
Throughout these proceedings, Appellant has 
challenged Congress’s decision to extend Section 5 for 
another 25 years without permitting jurisdictions like 
it to bail out; the extension, Appellant has argued, lacks 
congruence and proportionality under City of Bo erne 
v. Flores, 521 U.S. 507 (1997). But Appellant has not 
challenged the changes Congress made to the 
preclearance standard, and the district court issued no 
ruling on such a challenge. In these circumstances, the 
Thernstrom Am ici’s challenge must be disregarded. 
See, e.g., Lopez v. Davis, 531 U.S. 230, 244 n.6 (2001) 
(declining to address issue that was raised only by amici 
and not raised or decided below); FW/PBS, Inc. v. City 
o f 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.” ).



9

Even if the Thernstrom Amici’& challenge had been 
properly raised, it would not be appropriate for this 
Court to reach it. The duty to decide whether Congress, 
a coordinate branch of government, has acted within its 
powers in enacting legislation is “the gravest and most 
delicate duty that this Court is called upon to perform.” 
Blodgett v. Holden, 275 U.S. 142, 148 (1927) (Holmes, 
J., concurring). Accordingly, this Court cannot invalidate 
an Act of Congress on its face so long as any “set of 
circumstances exists under which the Act would be 
valid.” United States v. Salerno, 481 U.S. 739,745 (1987); 
see Tennessee v. Lane, 541 U.S. 509, 530-31 (2004) 
(holding that, having determined that Title II of the 
Americans with Disabilities Act is a valid exercise of 
Congress’s Fourteenth Amendment enforcement power 
as applied to the context before the Court, the Court 
“need go no further”—even if some applications of that 
statute would exceed Congress’s power). This rule is an 
application of the basic principle that Article III of the 
United States Constitution gives federal courts 
authority to review the constitutionality of an Act of 
Congress “only when the justification for some direct 
injury suffered or threatened, presenting a justiciable 
issue, is made to rest upon such an act. Then the power 
exercised is that of ascertaining and declaring the law 
applicable to the controversy.” Massachusetts v. Mellon, 
262 U.S. 447, 488 (1923).

The Thernstrom Am ici’s challenge to Section 5’s 
amended preclearance standard focuses entirely on the 
application of those amendments to redistricting plans. 
There is, however, no redistricting plan at issue in this 
case, and for good reason—Appellant does not even elect 
its board members from districts. As a result, Appellant



10

would lack standing to challenge Section 5’s possible 
application to redistricting. Appellant faces no “actual 
and imminent,” as opposed to “ conjectural or 
hypothetical,” injury that is fairly traceable to the 
application of Section 5 to redistricting. Summers v. 
Earth Island Inst., 129 S. Ct. 1142,1149 (2009). Section 
5, of course, extends to a “wide range” of voting changes 
other than redistricting. Presley v. Etowah County 
Comm’n, 502 U.S. 491, 502 (1992).2 Those changes 
include changes to “the manner of voting,” such as the 
moving or consolidation of polling places; changes to 
“ candidacy requirements and qualifications” ; and 
changes “affecting the creation or abolition of an elective 
o ffice .” Id. at 502-03. The Thernstrom A m ici 
acknowledge that, as applied to those non-redistricting 
sorts of voting changes, the amended Section 5 “is 
simply a prophylactic prohibition against devices that 
exclude access to the ballot, and does not coerce racial 
favoritism or proportionality.” Thernstrom Br. 10 
(emphasis in original). Under this Court’s precedents, 
that concession is sufficient to defeat the Thernstrom 
A m ici’ s facial challenge, even if a justiciable

2 In fact, of the approximately 4,000 to 6,000 Section 5 
submissions received by the Justice Department each year, 
“ [rjedistricting plans are only a small portion of those 
submissions.” Voting Rights Act: Section 5 of the Act —  History, 
Scope, and Purpose: Hearing Before the Subcomm. on the 
Constitution of the H. Comm, on the Judiciary, 109th Cong. 9, 
Serial No. 109-79, Vol. I (2005) (statement of Bradley J. 
Schlozman, then-Acting Assistant Attorney General of the Civil 
Rights Division, United States Department of Justice). During 
the two years immediately following a decennial census, 
redistrictings constitute less than 20% of the total number of 
preclearance requests, and that number drops below 10% in 
the other eight years of the decade. See id. at 9-10.



11

facial challenge were properly before this Court. 
See Washington State Grange v. Washington State 
Republican Party, 128 S. Ct. 1184,1190 (2008) (stating 
that all members of the Court “agree that a facial 
challenge must fail where the statute has a plainly 
legitimate sweep”) (internal quotation marks omitted).

Indeed, in the last two pages of their brief, the 
Thernstrom Amici state—with admirable candor-—that 
what they seek from this Court is nothing more or less 
than an advisory opinion regarding whether the 
amended Section 5 is constitutional insofar as it might 
be applied in the future to different parties and facts 
than those presented in this case. Thernstrom Br. 36- 
37 (“ [W]e emphasize that receiving the Court’s guidance 
now on § 5’s constitutionality in the redistricting context 
is extremely important” as “ [rjedistricting will begin in 
2011.”). But “ the judicial power to decide cases and 
controversies does not include the provision of purely 
advisory opinions to the Executive.” Clinton v. Jones, 
520 U.S. 681, 700 (1997).

II. The Amendments To Section 5’s Preclearance
Standard Are Constitutional

Even if they were properly before this Court, the 
Thernstrom Amici'1 s constitutional challenges to the 
amendments to Section 5 would be unavailing. Section 
5 has always provided that preclearance should be 
withheld if a proposed voting change is discriminatory 
in purpose or effect. The 2006 amendments to the Voting 
Rights Act made changes to both the purpose and effect



12

prongs of the statute. Contrary to the contentions 
of the Thernstrom A m ici, those changes are 
constitutional.

A. By Requiring Denial of Preclearance 
to Changes with “Any Discriminatory 
Purpose,” Congress Merely Incorporated This 
Court’s Own Standard for Unconstitutional 
Discrimination

In Bossier II, this Court held that “the ‘purpose’ 
prong of § 5 covers only retrogressive dilution.” 528 U.S. 
at 328. Thus, even if a proposed voting change reflected 
purposeful discrimination on the basis of race—and thus 
violated the Constitution—B ossier I I  required 
preclearance of that change so long as the purpose was 
not to make things worse than they had been in the past. 
See id. at 336 (requiring preclearance of “a plan that is 
not retrogressive—no matter how unconstitutional it 
may be”)- In the 2006 amendments to the statute, 
Congress overturned that ruling. Section 5 now provides 
that “any discriminatory purpose” behind a voting- 
change—not just a retrogressive purpose—warrants a 
denial of preclearance. 42 U.S.C. § 1973c(c).3 Because 
the amended purpose provision simply incorporates 
this Court’ s own standard for unconstitutional 
discrimination, see Washington v. Davis, 426 U.S. 229 
(1976), it is valid legislation to enforce the Fourteenth

8 By contrast, Congress left intact this Court’s holding in 
Reno v. Bossier Parish School Board, 520 U.S. 471, 485 (1997) 
(.Bossier I) that a violation of Section 2 of the Voting Rights Act, 
42 U.S.C. § 1973, cannot alone provide a basis for denying 
preclearance under Section 5.



13

and Fifteenth Amendments. See United States v. 
Georgia, 546 U.S. 151, 158 (2006) (stating that “no one 
doubts that” Congress may provide remedies for actual 
constitutional violations).4

The Thernstrom Am ici argue that Congress’s 
decision to incorporate the Washington v. Davis 
standard somehow triggers strict scrutiny and threatens 
constitutional principles. They assert that the 
amendment to the purpose provision of Section 5 
“authorize[s] the Department [of Justice] to use its 
‘discriminatory purpose’ power to again require race- 
based districting that subordinates traditional 
districting principles.” Thernstrom Br. 26. That assertion 
is curious, because the Constitution itself prohibits 
states from diluting minority voting strength with a 
discriminatory purpose. See Rogers, 458 U.S. at 617; City 
o f Mobile, 446 U.S. at 67.

4 This Court’s decision in Bossier II rested on principles of 
statutory interpretation. See 528 U.S. at 329-36 (emphasizing 
that a retrogressive effect had already been held to be necessary 
to violate Section 5’s effects prohibition, and that, because the 
words “purpose” and “effect” were textually parallel terms in 
that section, a retrogressive purpose must be necessary to 
violate the section’s purpose prohibition). Because purposeful 
discrimination violates the Constitution, it cannot violate the 
Constitution for Congress to prohibit that conduct, and shifting 
the burden of proof to jurisdictions with a significant history of 
discrimination is appropriate in light of Congress’s “wide berth 
in devising appropriate remedial and preventative measures 
for unconstitutional actions.” Lane, 541 U.S. at 520; see City of 
Rome v. United States, 446 U.S. 156, 181-82 (1980) (Section 5’s 
burden shift is appropriate response to history of discrimination 
by covered jurisdictions).



14

The Thernstrom Amici repeatedly disparage the 
prohibition on purposeful discrimination. They call it a 
“free-floating purpose inquiry” (Thernstrom Br. 34), and 
frequently render the word “purpose” in quotation 
marks (id. at 3, 15, 17). They also complain about the 
supposed complexity of the discriminatory purpose 
inquiry; they urge, for example, that it requires a 
“subjective, open-ended assessment of the submitting 
jurisdiction’s ‘purpose’” (id. at 16-17), and a “speculative 
and amorphous analysis of whether the alternative was 
rejected “ ‘because of,” not merely “in spite of,” ’ its 
‘dilutive’ effect” (id. at 15-16 (quoting Personnel Adm’r 
v. Feeney, 442 U.S. 256,279 (1979))). But as their citation 
to Feeney suggests—as does their citation, in the next 
sentence, to Village o f A rlington  Fleights v. 
Metropolitan Housing Development Corp., 429 U.S. 
252, 265 (1977)—this sort of discriminatory purpose 
analysis is the standard analysis this Court applies in 
all Fourteenth and Fifteenth Amendment discrimination 
cases.

In criticizing that analysis as “extraordinarily open- 
ended and amorphous in the redistricting context” 
(Thernstrom Br. 16), the Thernstrom Amici disregard 
the experience of the Department of Justice, which has 
found the Arlington Heights analysis fully administrable 
in the Section 5 context. See Voting Rights Act: Section 
5— Preclearance Standards, H earing Before the 
Subcomm. on the Constitution o f the H. Judiciary 
Comm., 109th Cong. 8, Serial No. 109-69 (2005) 
(testimony of Mark A. Posner, former Special Counsel 
for Section 5, United States Department of Justice). 
More important, they ignore this Court’s cases, which 
make clear that the discriminatory purpose requirement



15

“applies to claims of racial discrimination affecting voting 
just as it does to other claims of racial discrimination.” 
City of Mobile, 446 U.S. at 67; see also Rogers, 458 U.S. 
at 617 (holding that the Washington v. Davis!Arlington 
Heights standard governs constitutional vote dilution 
cases). Indeed, Washington v. Davis itself held that the 
purposeful discrimination requirement applies across 
the board in Fourteenth Amendment race cases—and 
it explicitly invoked a redistricting case, Wright v. 
Rockefeller, 376 U.S. 52 (1964), as an example of the 
point. Davis, 426 U.S. at 240 (citing Wright).

Because the amended purpose provision merely 
incorporates the very standard that this Court has 
applied to determine whether the Fourteenth and 
Fifteenth Amendments have been violated, the 
Thernstrom Amici are simply wrong to say that the 
amended provision “contains an ‘implicit command that 
States engage in presumptively unconstitutional race- 
based districting.’” Thernstrom Br. 2 (quoting Miller, 
515 U.S. at 927). Contrary to the Thernstrom Amici’s 
assertion, the amended purpose provision does not 
authorize the Department of Justice “ to find 
discriminatory purpose whenever a covered jurisdiction 
has failed to create a race-based district, even where 
the district is plainly at odds with traditional districting 
principles” (Thernstrom Br. 18), or to “use its 
‘discriminatory purpose’ to again require race-based 
districting that subordinates traditional districting 
principles” (id. at 26). And it certainly does not permit 
the Department “to force Georgia to create a third 
majority-[minority] district that ignores standard 
districting principles” (id.) or to deny preclearance if it 
determines that “improvements to minority voting



16

strength” are “not sufficiently far-reaching to maximize 
minority voting strength” (id. at 33-34). As this Court 
underscored, a state does not engage in unconstitutional 
intentional discrimination simply by failing to maximize 
minority voting strength or following traditional 
districting principles. See Miller, 515 U.S. at 924 (holding 
that a “policy of adhering to other districting principles 
instead of creating as many majority-minority districts 
as possible does not support an inference that the plan 
‘so discriminates on the basis of race or color as to violate 
the Constitution’” (quoting Beer v. United States, 425 
U.S. 130, 141 (1976))).5

Not surprisingly, the Thernstrom Amici can point 
to nothing in the amended purpose requirement of 
Section 5 that purports to authorize the Department of 
Justice to “ require race-based districting that 
subordinates traditional districting principles.” 
Thernstrom Br. 26. Instead, their argument relies 
almost entirely on allegations that U[d]uring the 1990 
redistricting cycle, the Department routinely denied

5 The Thernstrom Amici assert that there is not “any 
judicial review” of the Attorney General’s decision to deny 
preclearance. Thernstrom Br. 18. That assertion is misleading 
at best. Although the Attorney General’s decision to grant 
preclearance is final and nonreviewable, see Morris v. Gressette, 
432 U .S. 491 (1977), when the Attorney General denies 
preclearance the submitting jurisdiction is entitled, by the very 
terms of Section 5, to a de novo trial of the issue before a three- 
judge district court, with direct review to this Court. See 42 
U.S.C. § 1973c(a). As the many judicial preclearance cases that 
have reached this Court demonstrate, that process is certainly 
a “practical” means of obtaining judicial review. Cf. Thernstrom 
Br. 17-18 n.3 (internal quotation marks omitted).



17

preclearance to redistricting plans” based on 
discriminatory purpose where those plans “failfed] to 
maximize the number of majority-minority districts.” 
Thernstrom Br. 18 (emphasis added). These allegations 
involve a handful of statewide redistrictings that took 
place three presidential administrations and nearly two 
decades ago. And far from a “routine” practice, there 
are only two instances in which this Court concluded 
that the Department required “maximization” : the 
Georgia redistricting, Miller, 515 U.S. at 917, 925-26, 
and the North Carolina redistricting, Shaw v. Hunt, 517 
U.S. 899, 913 (1996) (Shaw II), both of which followed 
the 1990 census. In general, “ [t]he Department utilized 
the well-established framework for conducting 
discriminatory purpose analyses set forth by the 
Supreme Court in the Arlington Heights case.” Voting 
Rights Act: Section 5—Preclearance Standards, supra, 
at 14.

In any event, the Georgia and North Carolina 
objections that were the subject of Miller and Shaw II  
occurred at a time when the state of constitutional law 
was very different than it is today. When covered 
jurisdictions were drawing redistricting plans and 
submitting them for preclearance during the 1990 
redistricting cycle, this Court had not yet ruled that the 
Constitution could be violated by race-based line 
drawing that did not deny or dilute any individual’s or 
group’s vote. That ruling did not come until 1993, 
in Shaw I, 509 U.S. at 649-50, and the contours 
of Shaw P s constitutional prohibition on “ racial 
gerrymandering” were not clear until 1995, when this 
Court decided Miller, 515 U.S. at 915-17, 920-23. Nor 
had the Court ruled, by the time of the 1990 redistricting



18

cycle, that racial classifications adopted by the federal 
government receive the same strict scrutiny as those 
adopted by the states. That ruling did not come until 
1995, when this Court decided Adarand, 515 U.S. at 
226-27; cf. Metro Broad., 497 U.S. at 563 (applying only 
intermediate scrutiny to “benign racial classification^]” 
adopted by the federal government).

When the Department of Justice was reviewing 
preclearance submissions during the 1990 redistricting 
cycle, the then-existing precedent most relevant to the 
issues the Court would later address in Shaw I and 
Miller was United Jewish Organizations, supra. This 
Court’s decision in United Jewish Organizations was, 
to be sure, “highly fractured.” Shaw I, 509 U.S. at 651. 
But it provided substantial support for the proposition 
that, in the absence of vote dilution, “ racial 
gerrymandering” did not violate the Constitution. 
See id. at 658-59 (White, J., joined by Blackmun and 
Stevens, JJ., dissenting) (noting that a majority of 
justices “held that plaintiffs were not entitled to relief 
under the Constitution’s Equal Protection Clause” 
because “members of the white majority could not 
plausibly argue that their influence over the political 
process had been unfairly canceled or that such had 
been the State’s intent” (citations omitted)). Indeed, in 
Shawl itself, four justices dissented on the ground that 
United Jewish Organizations foreclosed the cause of 
action for nondilutive “racial gerrymandering” that the 
Court adopted there. See id. at 658-59 (White, J., joined 
by Blackmun and Stevens, JJ., dissenting); id. at 684 
(Souter, J., dissenting). Miller, too, was decided over 
the dissent of four justices. See Miller, 515 U.S. at 934 
(Ginsburg, J., joined by Stevens and Breyer, JJ., and



19

by Souter, J., in part, dissenting). The failure of 
Department of Justice officials, in 1990, “to predict the 
future course of constitutional law,” Wilson v. Layne, 526 
U.S. 603, 617 (1999) (internal quotation marks omitted), 
does not justify invalidating a congressional enactment 
today based on the presumption that the Department will 
disregard this Court’s decisions in the future.

The Thernstrom Amici have not offered a shred of 
evidence that, since Shaw I  and Miller, the Department 
of Justice has refused to preclear a redistricting plan 
unless it subordinated traditional districting principles in 
an effort to maximize minority voting strength. Indeed, 
after Shaw I  and Miller, the Department issued guidance 
that specifically recognized that the principles adopted in 
those cases are among the constraints that may require 
preclearance of a retrogressive change. See Guidance 
Concerning Redistricting and Retrogression Under 
Section 5 of the Voting Rights Act, 66 Fed. Reg. 5412,5412- 
13 (Jan. 18, 2001). If, in the future, the Department 
disregards the rules of constitutional law this Court settled 
in Shaw I  and Miller, a covered jurisdiction can bypass 
the Department entirely and seek preclearance in the 
District Court for the District of Columbia. See 42 U.S.C. 
§ 1973c(a). And a private party could always file a lawsuit 
under Shaw I  and Miller themselves. But to presume that 
the United States Department of Justice will apply the 
purpose prong of Section 5 unconstitutionally, and to 
invalidate the statute itself based on that presumption, 
would fail to accord the proper respect to coordinate 
branches of government. As this Court has explained:

A possibility always exists, of course, that the
legitimate objectives of any law or legislative



20

program may be subverted by conscious design 
or lax enforcement. There is nothing new in this 
argument. But judicial concern about these 
possibilities cannot, standing alone, warrant 
striking down a statute as unconstitutional.

Tilton v. Richardson, 403 U.S. 672, 679 (1971). Because 
the amended purpose provision of Section 5 does 
nothing more than incorporate the standard that this 
Court has itself adopted to assess unconstitutional 
discrimination under the Fourteenth Amendment, that 
provision is a valid exercise of Congress’s power to 
enforce that Amendment. The Court may not apply 
strict scrutiny and invalidate that provision based on 
the presumption— a presumption at odds with 
published Department guidance—that the Department 
of Justice will disregard this Court’s Shaw I  and Miller 
jurisprudence and refuse to enforce the provision 
according to its terms.

B. The Amended Retrogression Standard Does 
Not Demand Violations of Shaw I  and Miller

In addition to the changes to Section 5’s purpose 
standard, the 2006 amendments to the Voting Rights 
Act also changed its effects standard. See 42 U.S.C. 
§ 1973c(b), (d).6 The Thernstrom Amici assert that the

6 Congress amended Section 5’s effects standard to 
measure retrogression by determining whether the change at 
issue will diminish minority citizens’ ability “to elect their 
preferred candidates of choice,” rather than whether it will 
diminish minority citizens’ influence in the political or electoral 
process. 42 U.S.C. § 1973c(b); see id. § 1973c(d) (“[t]he purpose

(Cont’d)



21

amended effects test triggers strict scrutiny and violates 
the Constitution because it has a “ nakedly racial 
purpose” (Thernstrom Br. 32); that it “ locks in all 
existing majority-minority districts until 2031,” and does 
so “ regardless of intervening demographic or other 
changes” (id. at 26, 28); and that it therefore operates 
as a “quota ceiling on nonminorities’ ability to elect” 
(id. at 27). These assertions rest on a fundamental 
misunderstanding of the amended effects prohibition.

Since the enactment of the Voting Rights Act in 
1965, Section 5 has prohibited voting changes with a 
discriminatory effect. In its authoritative decision in 
Beer, this Court read the effects provision of Section 5 
as requiring “that no voting-procedure changes would 
be made that would lead to a retrogression in the 
position of racial minorities with respect to their effective 
exercise of the electoral franchise.” 425 U.S. at 141. On

(Cont’d)
of subsection (b) of this section is to protect the ability of such 
citizens to elect their preferred candidates of choice”). 
Subsection (b) states:

Any voting qualification or prerequisite to voting, 
or standard, practice, or procedure with respect to 
voting that has the purpose of or will have the effect 
of diminishing the ability of any citizens of the 
United States on account of race or color, or in 
contravention of the guarantees set forth in section 
1973b(f)(2) of this title, to elect their preferred 
candidates of choice denies or abridges the right to 
vote within the meaning of subsection (a) of this 
section.

Id. § 1973c(b).



22

its face, the original Section 5 effects provision contained 
“no defense or justification” (cf. Thernstrom Br. 27) that 
would permit a voting change that diminished minority 
voting strength. But this Court recognized that Section 
5 could not be understood as imposing an utterly 
inflexible prohibition on retrogression. Thus, in City of 
Richmond v. United States, 422 U.S. 358 (1975), the 
Court held that an annexation that reduced the black 
population percentage in Richmond, Virginia, from 52 
percent to 42 percent did not violate Section 5’s effects 
prohibition. See id. at 370-72. It was enough, this Court 
held, that the city’s election plan “fairly reflected] the 
strength of the Negro community as it exist[ed] after 
the annexation.” Id. at 371 (emphasis added).

In a similar vein, the Department of Justice has long 
refused to “read Beer to require the reflexive imposition 
of objections in total disregard of the circumstances 
involved or the legitimate justifications in support of 
changes that incidentally may be less favorable to 
minority voters.” Revision of Procedures for the 
Administration of Section 5 of the Voting Rights Act of 
1965, 52 Fed. Reg. 486, 488 (Jan. 6,1987). In particular, 
the Department has recognized that retrogression can 
be justified where a plan that maintains preexisting- 
minority voting strength would violate the Constitution: 
“ [I]n the redistricting context, there may be instances 
occasioned by demographic changes in which reductions 
of minority percentages in single-member districts are 
unavoidable, even though ‘retrogressive,’ i.e., districts 
where compliance with the one person, one vote 
standard necessitates the reduction of minority voting 
strength.” Id. Since this Court made clear, in Shaw I 
and Miller, that the Constitution prohibits nondilutive



23

racial gerrymandering, the Department has recognized 
that a retrogressive redistricting plan must nonetheless 
be precleared if the only alternative is a plan that 
violates the principles articulated in those cases. 
See Guidance Concerning Redistricting, supra, at 5413 
(“ [Preventing retrogression under Section 5 does not 
require jurisdictions to violate Shaw v. Reno and related 
cases.”); Letter from Bill Lann Lee, Acting Assistant 
Attorney General, to John C. Henry, Esq., 3 (May 20, 
1998) (stating that “a reduction in minority voting 
strength that is required by the United States 
Constitution does not violate Section 5” and specifically 
recognizing that a Shaw violation may warrant “some 
reduction in minority voting strength”).7 And even where 
retrogression was not justified, it was settled law that 
“ [njonretrogression is not a license for the State to do 
whatever it deems necessary to ensure continued 
electoral success; it merely mandates that the minority’s 
opportunity to elect representatives of its choice not 
be diminished.” Bush v. Vera, 517 U.S. 952, 983 (1996) 
(opinion of O’Connor, J.).

The 2006 amendments to Section 5’ s effects 
provision made absolutely no change to these principles. 
In amending the effects provision, Congress merely 
addressed a very specific controversy over the 
definition  of retrogression— a controversy that is 
relevant only in the context of some redistricting plans. 
In Georgia v. Ashcroft, 539 U.S. 461 (2003), this Court 
considered whether a Georgia state senate redistricting 
plan was retrogressive. That plan reduced the black

7 Available at http://www.usdoj.gov/crt/voting/sec_5/ltr/ 
l_052098.php.

http://www.usdoj.gov/crt/voting/sec_5/ltr/


24

voting-age population in three previously majority- 
minority districts to “just over 50%,” which made it at 
least “marginally less likely that minority voters [could] 
elect a candidate of their choice in those districts.” 
Id. at 486. But, at the same time, the plan increased the 
black voting-age population percentage in four other 
districts where blacks remained a voting-age minority. 
See id. at 487. The Court held that the district court 
should not have denied preclearance to the plan simply 
on the basis of the reduction in minority voting-age 
population in the three majority-minority districts; it 
directed the district court to consider, on remand, 
whether the addition of more non-majority “influence” 
or “ coalitional” districts rendered the new plan, 
considered as a whole, nonretrogressive. Id. The Court 
explained that it would not necessarily be retrogressive 
for a state to trade existing districts in which minority 
voters had the opportunity to elect candidates of their 
choice for ‘“influence districts’—where minority voters 
may not be able to elect a candidate of choice but can 
play a substantial, if not decisive, role in the electoral 
process.” Id. at 482. 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 achieve greater overall representation of a minority 
group by increasing the number of representatives 
sympathetic to the interests of minority voters.” 
Id. at 483.

It is on this narrow point that Congress took issue 
with this Court’s retrogression jurisprudence. The 
amended Section 5, overturning Georgia v. Ashcroft, 
deems it retrogressive when a state trades away 
existing districts in which minority voters have the



25

opportunity to elect candidates of choice in order to 
create more districts in which minority voters have some 
undefined “influence” in the political or electoral process. 
Now, retrogression must be measured solely by whether 
the voting change will diminish minority citizens’ ability 
“to elect their preferred candidates of choice.” 42 U.S.C. 
§ 1973c(b), (d). Congress thus agreed with the Georgia 
v. Ashcroft dissenters that “redefining] effective voting 
power in § 5 analysis without the anchoring reference 
to electing a candidate of choice” leaves the 
nonretrogression principle “substantially diminished” 
and “practically unadministrable.” Georgia v. Ashcroft, 
539 U.S. at 493-94 (Souter, J., dissenting).8 But the 
amendment to the effects provision did not change the 
principle that demographic or constitutional constraints 
may justify even a retrogressive redistricting plan under 
Section 5.

8 The Thernstrom Amici assert (at 33) that the amendment 
to the effects provision reflects Congress’s “outrage!]” at “the 
notion of Georgia being allowed to take some baby steps away 
from super-majority black districts.” That is not a fair reading of 
the record. As the House committee report shows, Congress was 
not moved by outrage at what transpired on the ground in the 
State of Georgia, but by disagreement with the Georgia Court’s 
conclusion that a state may diminish the ability of minority voters 
to elect the candidates of their choice and leave them to a difficult 
to define notion of “influence.” See H.R. Rep. N o. 109-478, at 69 
(2006) (“Under its ‘new’ analysis, the Supreme Court would allow 
the minority community’s own choice of preferred candidates to 
be trumped by political deals struck by State legislators purporting 
to give ‘influence’ to the minority community while removing that 
community’s ability to elect candidates.”); id. at 70 (“[T]he 
Committee is concerned by testimony indicating that ‘[mjinority 
influence is nothing more than a guise for diluting minority voting 
strength.’”) (footnote omitted).



26

As this description should make clear, the amendment 
to the effects provision does not “lock[] in all existing 
majority-minority districts until 2031.” Thernstrom Br. 28; 
accord id. at 4,26.9 What it presumptively locks in—subject 
to the same defenses that applied before the 2006 
amendments—is minority voters’ ability to elect the 
candidates of their choice. As racially polarized voting 
diminishes, minorities in those districts may be able to 
maintain the same ability to elect the candidates of their 
choice with smaller percentages of the population. 
See Bartlett v. Strickland, No. 07-689, 2009 WL 578634, 
at *16 (U.S. Mar. 9, 2009) (opinion of Kennedy, J.).10

9 The Thernstrom Amici assert that the “existing majority- 
minority districts . . . raise serious Fourteenth Amendment 
concerns.” Thernstrom Br. 28. But there is no constitutional concern 
with a majority-minority district per se. See, e.g., Easley v. 
Cromartie, 532 U .S. 234, 253 (2001). Such districts raise 
constitutional concerns only when race is “the predominant factor 
motivating the legislature’s decision to place a significant number 
of voters within or without a particular district,” and the legislature 
“subordinate[s] traditional race-neutral districting principles . . . 
to racial considerations.” Miller, 515 U.S. at 916. Indeed, where a 
majority-minority district is consistent with traditional districting 
principles (as when minorities make up a majority of the 
population of a sizeable city), it is the failure to draw such a district 
that will raise constitutional concerns. Cf. League of United Latin 
Am. Citizens v. Perry, 548 U.S. 399, 440 (2006) (dividing Laredo, 
with its cohesive Latino community, bore “the mark of intentional 
discrimination”).

10 The Thernstrom Amici are therefore incorrect to state that 
the amended effects provision “increases federal race-conscious 
mandates in inverse proportion to the race-consciousness of the 
electorate.” Thernstrom Br. 31-32. As we explain in text, as racially 
polarized voting decreases, the constraints the effects provision 
imposes on the states will necessarily loosen.



27

The amended effects prohibition therefore is 
not insensitive to “ changes in voting patterns.” 
Cf. Thernstrom Br. 4. Indeed, it is only the continuing 
existence of racially polarized voting that can make 
districting the sort of racial zero-sum game the 
Thernstrom Amici posit (Thernstrom Br. II);11 absent 
racially polarized voting, the maintenance of minorities’ 
ability to elect the candidates of their choice can 
impose no “ceiling on nonminorities’ ability to elect.” 
Cf. Thernstrom Br. 27.

Nor does the amended effects provision set forth 
an “inviolable” prohibition that requires maintenance 
of minority voting strength “regardless of changes in .. 
. demographics,” (cf. Thernstrom Br. 4), or regardless 
of any inquiry into “feasibility” or any other “defense or 
justification” {cf. id. at 27). It is true that the amended 
Section 5, like the original Section 5, does not contain 
any express defenses for retrogressive changes. But 
both this Court and the Department of Justice have 
recognized that demographic and constitutional 
constraints may appropriately justify a voting change 
that is retrogressive. See pp. 21-23, supra. The 
amendments to Section 5 changed the definition of 
retrogression, but they did not purport to alter the

11 See, e.g., Voting Rights Act: The Continuing Need for 
Section 5: Hearing Before the Subcomm. on the Constitution of 
the H. Comm, on the Judiciary, 109th Cong. 4-5, Serial No. 109- 
75 (2005) (testimony of Laughlin McDonald); id. at 49-79 
(testimony of Prof. Richard Engstrom); Voting Rights Act: 
Evidence of Continued Need, Hearing Before the Subcomm. on 
the Constitution of the H. Comm, on the Judiciary, 109th Cong. 
301-02, Serial No. 109-103 (2006) (Appendix to the Statements 
of the Hon. Bill Lann Lee and the Hon. Joe Rogers).



28

principle that demographic or constitutional constraints 
may require preclearance even of some retrogressive 
changes. See Lorillard v. Pons, 434 U.S. 575, 580 (1978) 
(“Congress is presumed to be aware of an administrative 
or judicial interpretation of a statute and to adopt that 
interpretation when it re-enacts a statute without 
change.” (citations omitted)). Accordingly, the amended 
effects provision would still require preclearance of a 
retrogressive redistricting plan where demographic 
changes made retrogression “unavoidable,” Revision of 
Procedures, supra, at 488; cf. City of Richmond, 422 
U.S. at 371 (“It is true that the black community, if there 
is racial bloc voting, will command fewer seats on the 
city council; and the annexation will have effected a 
decline in the Negroes’ relative influence in the city. But 
a different city council and an enlarged city are involved 
after the annexation.”), or where avoiding retrogression 
would require violating Shaw I  and Miller, see Guidance 
Concerning Redistricting, supra, at 5413.

Nor is there anything problematic about Congress’s 
prohibition of changes that “diminish[]” the opportunity 
to elect candidates of choice, 42 U.S.C. § 1973c(b). 
Cf. Thernstrom Br. 26. Diminishment of minority voting 
strength is what retrogression has always meant, and it 
is hardly novel to use “diminish” and “retrogress” as 
synonyms in this context. See Bush v. Vera, 517 U.S. at 
983 (opinion of O’Connor, J.) (“Nonretrogression . . . 
mandates that the minority’s opportunity to elect 
representatives of its choice not be diminished, directly 
or indirectly, by the State’ s actions.” (emphasis 
omitted)). To the extent that the Thernstrom Amici 
mean to suggest that the amended effects provision 
would bar any reduction in the minority voting-age



29

population percentage in a district, the foregoing 
discussion should demonstrate that the provision will do 
no such thing. It is diminishment in the opportunity to 
elect, not in district demographics, that the amended 
provision defines as retrogressive. In many cases, a 
reduction in minority voting-age population percentage 
will not diminish the opportunity to elect candidates of 
choice.12

Finally, the decision to frame the effects test in terms 
of non-diminishment rather than in terms of “racial 
equality” (Thernstrom Br. 28) was not an innovation of 
the 2006 amendments to the Voting Rights Act. To the 
contrary, it is an essential part of the retrogression 
standard that has governed discriminatory effects analysis 
under Section 5 at least since Beer, supra. The Court has 
upheld Section 5, with its nonretrogression standard, 
because it applies to those areas of the country where a 
deep history of discrimination raises especial concern that 
a diminution of minority voting strength will be an 
unequal diminution. See Lopez v. Monterey County, 525 
U.S. 266, 282-84 (1999); City of Rome, 446 U.S. at 181-82; 
South Carolina v. Katzenbach, 383 U.S, 301, 330-331 
(1966); see also Brief for Intervenor-Appellees Texas State 
Conference of NAACP Branches, Austin Branch of the 
NAACR and Nathaniel Lesane at 22-49. That analysis 
applies equally to the post-2006 effects language. 
Accordingly, this Court should neither apply strict scrutiny 
nor invalidate the amended effects test.

12 See Georgia v. Ashcroft, 195 F. Supp. 2d 25, 74-76 (D.D.C. 
2002) (noting that “Section 5 is not an absolute mandate for 
maintenance of [majority-minority] districts” and that in 
certain circumstances “dilution of minority voting age 
population may have no retrogressive effect”), vacated on other 
grounds by 539 U.S. 461 (2003).



30

CONCLUSION

This Court should not reach the constitutional 
questions raised for the first time in the Thernstrom 
Amici brief. Should the Court reach those questions, 
however, it should reject the Thernstrom A m ici’& 
arguments and affirm the judgment of the district court.

Respectfully submitted,

Samuel R. Bagenstos 
Counsel of Record 
405 Hilgard Ave.
Los Angeles, CA 90095 
(310) 267-4728

Elissa J. Preheim 
David D. Fauvre 
Sheri L. Shepherd 
Arnold & Porter LLP 
555 Twelfth St. N.W. 
Washington, D.C. 20004 
(202) 942-5000

Counsel for Amici Curiae

March 25, 2009