Shelby County v. Holder Brief Amicus Curiae

    No. 12-96

In the
Supreme Court of the United States

Shelby County, Alabama,
Petitioner,

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

Respondents.

ON WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS FOR 

THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR SENATE MAJORITY LEADER 
HARRY M. REID AS AMICUS CURIAE IN 

SUPPORT OF RESPONDENTS
Marc E. Elias 

Co u n s e l  o f  R e c o r d  
John M. D evaney 
Elisabeth Frost 
Perkins Coie l l p  

700 13th St., NW, Suite 600 
Washington, D.C. 20005 
melias@perkinscoie.com 
(202) 654-6200

Noah Guzzo Purcell 
Perkins Coie l l p  

1201 Third Ave., Suite 4900 
Seattle, WA 98101 
(206) 359-8000
Counsel for Senate Majority Leader 
Harry M. Reid

February 1, 2013

mailto:melias@perkinscoie.com


QUESTION PRESENTED

Whether Congress’s decision in 2006 to 
reauthorize Section 5 of the Voting Rights Act under 
the pre-existing coverage formula of Section 4(b) of 
the Voting Rights Act exceeded its authority under 
the Fourteenth and Fifteenth Amendments and thus 
violated the Tenth Amendment and Article IV of the 
United States Constitution.



TABLE OF CONTENTS

Page

INTEREST OF AMICUS CURIAE............................. 1
SUMMARY OF ARGUMENT.......................................1
ARGUMENT.................................................................. 4

I. The Language of the
Constitution and Longstanding 
Precedent Require Application of 
Rational Basis Review............................4

II. The 2006 Reauthorization of
Section 5 Was Approved 
Unanimously by the Senate 
Based on Extensive Evidence and 
Survives Any Standard of Review.... 10

CONCLUSION............................................................. 13



Ill

TABLE OF AUTHORITIES

Page

Federal Cases

Board of Trustees of the University of Alabama 
v. Garrett,
531 U.S. 356 (2001)............................................... 8

City of Boerne v. Flores,
521 U.S. 507 (1997)............................................... 10

City of Rome v. United States,
446 U.S. 156 (1980)...................................... 6, 7, 13

Eldred v. Ashcroft,
537 U.S. 186 (2003).................................................. 7

Ex parte Virginia,
100 U.S. 339 (1879).................................... 2, 3, 5, 6

Florida Prepaid Postsecondary Education 
Expense Board v. College Savings Bank,
527 U.S. 627 (1999)..................................................8

Katzenbach v. Morgan,
384 U.S. 641 (1966).................................................. 6

National Federation of Independent 
Businesses v. Sebelius,
132 S. Ct. 2566 (2012)..............................................3

Nevada Department of Human Resources v.
Hibbs,
538 U.S. 721 (2003).............................................8, 9



IV

TABLE OF AUTHORITIES 
(continued)

Page

Northwest Austin Municipal Utility District 
Number One u. Holder,
557 U.S. 193 (2009)...................................................1

Oregon v. Mitchell,
400 U.S. 112 (1970).................................................. 6

Salazar v. Buono,
130 S. Ct. 1803 (2010).............................................. 9

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

Tennessee v. Lane,
541 U.S. 509 (2004).............................................8, 9

Turner Broad. Sys., Inc. v. FCC,
520 U.S. 180 (1997)................................................ 12

Constitutional Provisions

U.S. Const, amend. XIV......................................passim

U.S. Const, amend. X V .......................................passim

Other Authorities

The Continuing Need for Section 5 Pre-
Clearance: Hearing Before the S. Comm, on 
the Judiciary, 109th Cong. 3-4 (2006)
(statement of Anita S. Earls)................................ 11

H.R. Rep. No. 109-478 (2006).....................................11



V

TABLE OF AUTHORITIES 
(continued)

Page

The Federalist No . 62 (James Madison)................12



1

INTEREST OF AMICUS CURIAE*

Amicus is currently serving as the Senate 
Majority Leader and has two primary interests here. 
First, Amicus seeks to ensure that the Court does 
not reduce Congress’s longstanding authority to 
combat racial discrimination in voting by adopting a 
constricted view of the authority granted to Congress 
by the Fourteenth and Fifteenth Amendments. 
Second, Amicus seeks to remind the Court that 
Section 5 passed the Senate unanimously, with no 
members from covered states voting against, and 
that unanimous ratification deserves great respect in 
light of Congress’s relative institutional 
competence— as an elected branch, unlike the 
Court—to judge what is necessary to prevent racial 
discrimination in election practices.

SUMMARY OF ARGUMENT

It may well be that “[tjhings have changed in 
the South,” Nw. Austin Mun. Util. Dist. No. One v. 
Holder, 557 U.S. 193, 202 (2009), but that is not the 
central issue in this case. The words of the 
Fourteenth and Fifteenth Amendments have not 
changed, and those amendments grant Congress the 
power to enact legislation to combat racial 
discrimination in electoral practices. The central

No party or counsel for a party authored or contributed 
monetarily to the preparation or submission of any portion of 
this brief. All parties have filed with the Clerk of the Court 
letters granting blanket consent to the filing of amicus briefs. 
Counsel of record for all parties received notice of amicus’s 
intention to file this brief more than 10 days before it was due.



2

question in this case is whether this Court will, 
contrary to longstanding precedent, reduce
Congress’s power to enforce these amendments and 
instead place itself in charge of deciding what 
measures are needed to prevent discrimination in 
voting.

Since the enactment of the Civil War 
amendments, this Court has consistently held that 
“[a]s against the reserved powers of the States, 
Congress may use any rational means to effectuate 
the constitutional prohibition of racial 
discrimination in voting.” South Carolina v.
Katzenbach, 383 U.S. 301, 324 (1966). The Court 
has applied rational basis review to such enactments 
based on both the plain language and original intent 
of the amendments: “The right of citizens of the 
United States to vote shall not be denied or abridged 
. . .  by any State on account of race, color, or previous 
condition of servitude,” and “Congress shall have 
power to enforce this article by appropriate 
legislation.” U.S. Const, amend. XV. By this 
language, “the Framers indicated that Congress was 
to be chiefly responsible for implementing the rights 
created.” Katzenbach, 383 U.S. at 326. ‘“It is the 
power of Congress which has been enlarged. 
Congress is authorized to enforce the prohibitions by 
appropriate legislation.’” Id. (quoting Ex parte 
Virginia, 100 U.S. 339, 345 (1879)) (emphasis 
added).

Despite this explicit grant of authority to 
Congress, Petitioner claims that Congress has 
overstepped its bounds and infringed on state



3

sovereignty. Such claims are nothing new, and this 
Court has consistently rejected them for nearly 150 
years. “The prohibitions of the Fourteenth 
Amendment are directed to the States, and they are 
to a degree restrictions of State power. It is these 
which Congress is empowered to enforce . . . .  Such 
enforcement is no invasion of State sovereignty. No 
law can be, which the people of the States have, by 
the Constitution of the United States, empowered 
Congress to enact.” Ex parte Virginia, 100 U.S. at 
346.

Put simply, for well over a century this Court 
has held—based on clear constitutional language— 
that Congress’s power is at its apex when it seeks to 
“effectuate the constitutional prohibition of racial 
discrimination in voting.” Katzenbach, 383 U.S. at 
324. The Court has therefore consistently applied 
rational basis review to such enactments. If the 
Court follows its longstanding precedent and does 
the same here, it must uphold Section 5.

The Court also should uphold Section 5 based 
on its stated desire to show “respect for a coordinate 
branch of the government” and the judicial role. 
Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 
2566, 2579 (2012). Section 5, at its heart, aims to 
protect the political process from discriminatory 
practices. If there is one thing about which the 
elected branches know more than this Court, it is the 
political process. See id. (“[W]e possess neither the 
expertise nor the prerogative to make policy 
judgments. Those decisions are entrusted to our 
Nation’s elected leaders . . . .”). And when Congress



4

reauthorized Section 5 in 2006, the Senate passed it 
unanimously, with not a single member from a 
covered state voting against. If this Court strikes 
down Section 5, it will in effect be declaring that it 
knows better than the elected Senators from these 
states whether the protections of Section 5 remain 
necessary. There is no basis in the Constitution or 
in any proper conception of the judicial role for such 
a ruling.

ARGUMENT

I. The Language of the Constitution and 
Longstanding Precedent Require 
Application of Rational Basis Review

Before this Court turns to the question of 
whether Congress compiled a record sufficient to 
support the reauthorization of Section 5, it must first 
determine what level of scrutiny it will apply: the 
rational basis test or a less deferential standard? 
The question is critical because it impacts not only 
the Court’s approach to this case, but also the 
fundamental balance of power between the judiciary 
and Congress. Out of respect for the Constitution’s 
plain language, the intent of the Framers, the 
Court’s own precedent, and a coordinate branch of 
government, the Court should apply rational basis 
review.

The Fourteenth and Fifteenth Amendments 
could not be clearer in two respects crucial to this 
case. First, they expressly limit the power of states: 
“No State shall make or enforce any law which shall 
abridge the privileges or immunities of citizens of



5

the United States; nor shall any State deprive any 
person of life, liberty, or property, without due 
process of law; nor deny to any person within its 
jurisdiction the equal protection of the laws.” U.S. 
Const, amend. XIV. “The right of citizens of the 
United States to vote shall not be denied or abridged 
. . .  by any State on account of race, color, or previous 
condition of servitude.” U.S. Const, amend. XV. See 
also Ex parte Virginia, 100 U.S. at 346 (“The 
prohibitions of the Fourteenth Amendment are 
directed to the States . . . .”).

Second, the amendments make clear that 
“Congress shall have power to enforce this article by 
appropriate legislation.” U.S. Const, amend. XV. ‘“It 
is the power of Congress which has been enlarged. 
Congress is authorized to enforce the prohibitions by 
appropriate legislation.’” Katzenbach, 383 U.S. at 
326 (quoting Ex parte Virginia, 100 U.S. at 345).

There can thus be no question that these 
amendments give Congress power to prevent 
discrimination by states; the only question is how to 
judge what qualifies as “appropriate legislation” to 
advance this purpose. For nearly 150 years, this 
Court has held that “legislation is appropriate” if it 
is “adapted to carry out the objects the amendments 
have in view,” i.e., if it “tends to enforce submission 
to the prohibitions they contain, and to secure to all 
persons the enjoyment of perfect equality of civil 
rights and the equal protection of the laws against 
State denial or invasion.” Ex parte Virginia, 100 
U.S. at 345-46. The Court has applied this same 
rational basis test countless times to laws enacted by



6

Congress to prevent racial discrimination in voting, 
repeatedly emphasizing that “[a]s against the 
reserved powers of the States, Congress may use any 
rational means to effectuate the constitutional 
prohibition of racial discrimination in voting.” 
Katzenbach, 383 U.S. at 324. See also City of Rome 
v. United States, 446 U.S. 156, 175 (1980); Oregon v. 
Mitchell, 400 U.S. 112, 118, 217, 231 (1970); 
Katzenbach v. Morgan, 384 U.S. 641, 651 (1966).

Under this standard, this Court does not sit as 
a super-legislature to decide whether Congress has 
appropriately respected states. The Framers of the 
Fourteenth and Fifteenth Amendments have already 
made that decision by giving Congress power to 
enforce them: “Such enforcement is no invasion of 
State sovereignty. No law can be, which the people 
of the States have, by the Constitution of the United 
States, empowered Congress to enact.” Ex parte 
Virginia, 100 U.S. at 346.

Instead, the Court simply asks whether 
“Congress could rationally have concluded” that 
extending Section 5 would help prevent racial 
discrimination in election practices. City of Rome, 
446 U.S. at 177. As detailed in the next section, the 
only plausible answer to that question is yes.

Petitioner contends, however, that the Court 
should apply the congruence and proportionality 
standard from its recent Fourteenth Amendment 
cases rather than the rational basis test it has 
always applied to judge Section 5 and other laws 
aimed at eliminating discrimination in voting. Pet.



7

Br. 23 n.4. Alternatively, Petitioner contends that 
the Court may simply avoid this question because 
“Section 5 and Section 4(b) are no longer 
‘appropriate’ enforcement legislation under any 
applicable standard of review.” Id. Neither 
argument bears scrutiny.

There is no justification in this case to apply 
the congruence and proportionality standard. To 
begin with, the Fifteenth Amendment—on its own— 
provided sufficient authority for Congress to enact 
and extend Section 5, which aims exclusively at 
preventing discrimination in voting. But this Court 
has never applied the congruence and
proportionality standard to a law enacted under 
Congress’s Fifteenth Amendment power. See Eldred 
v. Ashcroft, 537 U.S. 186, 218 (2003) (“[Petitioners 
ask us to apply the ‘congruence and proportionality’ 
standard described in cases evaluating exercises of 
Congress’ power under § 5 of the Fourteenth 
Amendment. But we have never applied that
standard outside the § 5 context.”) (citation omitted).

Moreover, in evaluating prior extensions of 
Section 5—that is, in the precedent directly on 
point—this Court has applied rational basis review 
rather than the congruence and proportionality 
standard. City of Rome, 446 U.S. at 175 (holding 
that Congress’s authority under section 2 of the 
Fifteenth Amendment is “no less broad than its 
authority under the Necessary and Proper Clause”); 
Katzenbach, 383 U.S. at 324 (“As against the 
reserved powers of the States, Congress may use any 
rational means to effectuate the constitutional



8

prohibition of racial discrimination in voting.”). By 
contrast, the Court has applied the congruence and 
proportionality standard in cases addressing 
statutes far removed from the central purpose of the 
Fourteenth and Fifteenth Amendments: the
elimination of discrimination based on race. See, 
e.g., Nev. Dep’t of Human Resources v. Hibbs, 538 
U.S. 721 (2003) (applying congruence and
proportionality test in upholding provision of Family 
and Medical Leave Act allowing recovery of money 
damages from states); Bd. of Trs. of the Univ. of Ala. 
v. Garrett, 531 U.S. 356 (2001) (applying test in 
invalidating provisions of the Americans with 
Disabilities Act subjecting state employers to money 
damages); Fla. Prepaid Postsecondary Educ. Expense 
Bd. v. Coll. Sav. Bank, 527 U.S. 627 (1999) (applying 
test in invalidating provisions of the Patent and 
Plant Variety Protection Remedy Clarification Act 
that made states liable in federal court for patent 
infringement). See also Tennessee v. Lane, 541 U.S. 
509, 563 (2004) (Scalia, J., dissenting) (noting that 
“racial discrimination . . . was the principal evil 
against which the Equal Protection Clause was 
directed, and the principal constitutional prohibition 
that some of the States stubbornly ignored”).

Thus, even if the Court were to conclude that 
Congress had to rely on its Fourteenth Amendment 
power to extend Section 5, it should still apply 
rational basis review given that Section 5’s purpose 
of preventing racial discrimination in voting is at the 
very heart of the purpose of the Fourteenth and 
Fifteenth Amendments. See, e.g., Lane, 541 U.S. at 
561 (Scalia, J., dissenting) (“Giving § 5 more



9

expansive scope with regard to measures directed 
against racial discrimination by the States accords to 
practices that are distinctively violative of the 
principal purpose of the Fourteenth Amendment a 
priority of attention that this Court envisioned from 
the beginning, and that has repeatedly been 
reflected in our opinions.”); id. (“I shall leave it to 
Congress, under constraints no tighter than those of 
the Necessary and Proper Clause, to decide what 
measures are appropriate under § 5 to prevent or 
remedy racial discrimination by the States.”).

“Respect for a coordinate branch of 
Government forbids striking down an Act of 
Congress except upon a clear showing of 
unconstitutionality.” Salazar v. Buono, 130 S. Ct. 
1803, 1820 (2010). The Court cannot, consistent 
with this rule, change its longstanding approach to 
evaluating congressional enactments designed “to 
effectuate the constitutional prohibition of racial 
discrimination in voting.” Katzenbach, 383 U.S. at 
324. This is doubly so because congressional power 
is at its apex when Congress legislates to protect 
rights subject to heightened scrutiny, including the 
right that is the singular focus of Section 5—the 
right to vote free from racial discrimination. Hibbs, 
538 U.S. at 736.

In sum, the language of the Fourteenth and 
Fifteenth Amendments, as well as decades of 
precedent applying them, compel the conclusion that 
the Court should apply rational basis review here. 
The 2006 extension of Section 5 plainly survives 
review under that (or any) standard.



10

II. The 2006 Reauthorization of Section 5 
Was Approved Unanimously by the 
Senate Based on Extensive Evidence and 
Survives Any Standard of Review

Congress’s conclusion that reauthorization of 
Section 5 was necessary was based on extensive 
testimony and substantial documentary evidence, as 
reflected by the legislative history compiled by both 
houses, which runs to over 15,000 pages. The 
decision to reauthorize was not a close question. The 
vote in support was bipartisan and overwhelming in 
both chambers. In the Senate, it was unanimous. 
The conclusion of the legislative branch that, on the 
record before it, reauthorization was justified was 
plainly reasonable and is entitled to substantial 
deference from this Court.

Not only is the legislative record in support of 
Congress’s 2006 reauthorization of Section 5 
sufficient to defeat Petitioner’s attack, it is much 
more substantial and extensive than this Court’s 
precedent requires. Congress’s decision to 
reauthorize Section 5 was based on a voluminous 
record replete with evidence of its effectiveness and 
continued necessity, including evidence specific to 
the jurisdictions presently covered by Section 4(b)’s 
formula. That record easily satisfies the rational 
basis review that should apply, and also more than 
satisfies the congruence and proportionality test 
outlined in City of Boerne v. Flores, 521 U.S. 507 
(1997). Amicus leaves a more extensive discussion of 
the record to Respondents, except to reiterate that 
the days of testimony and thousands of pages of



11

documentary submissions provide extensive evidence 
that reauthorization of Section 5 is justified by 
current needs, including specific and substantial 
evidence of continued discriminatory practices in 
covered jurisdictions.1 The Court may not second 
guess and substitute its judgment for Congress’s 
reasonable conclusion, made on this extensive

1 See, e.g., The Continuing Need for Section 5 Pre-Clearance: 
Hearing Before the S. Comm, on the Judiciary, 109th Cong. 3-4 
(2006) (statement of Anita S. Earls, Director of Advocacy, 
University of North Carolina Law School Center for Civil 
Rights) (summarizing “five main sources of evidence 
documenting continued intentional discrimination in voting in 
the covered jurisdictions” including “numerous objection letters 
from every covered jurisdiction [since 1982]” that “document an 
extensive record of local officials seeking to change dates of 
election, change election district boundaries, change city 
boundaries, and make other changes in election procedures out 
of a desire to suppress, diminish, or negate the effect of 
minority voters”; 25 declaratory judgment actions where 
jurisdictions were denied pre-clearance; numerous judicial 
findings of intentional discrimination in litigation brought 
under Section 2 in published and unpublished opinions; and 
501 instances in which proposed changes affecting voting were 
withdrawn after the Department of Justice requested more 
information about the proposed changes); H.R. REP. No. 109- 
478, at 36 (2006) (finding that “voting changes devised by 
covered jurisdictions [in recent years] resemble those 
techniques and methods used in 1965, 1970, 1975, and 1982 
including: enacting discriminatory redistricting plans;
switching offices from elected to appointed positions; relocating 
polling places; enacting discriminatory annexations and 
deannexations; setting numbered posts; and changing elections 
from single member districts to at-large voting and 
implementing majority vote requirements” and “[t]he 
Committee received testimony indicating that these changes 
were intentionally developed to keep minority voters and 
candidates from succeeding in the political process”).



12

record, that reauthorization was necessary to 
remedy current discrimination and prevent 
backsliding on the progress that the Voting Rights 
Act has made possible. Turner Broad. Sys., Inc. v. 
FCC, 520 U.S. 180, 195 (1997) (“In reviewing the 
constitutionality of a statute, courts must accord 
substantial deference to the predictive judgments of 
Congress,” which “is far better equipped than the 
judiciary to amass and evaluate the vast amounts of 
data bearing upon legislative questions.”) (internal 
quotation marks omitted).

Finally, the bicameral legislative system 
envisioned by the Framers and enshrined in our 
Constitution ensures that “[n]o law or resolution can 
. . .  be passed without the concurrence, first, of a 
majority of the people [as represented by the House 
of Representatives], and then, of a majority of the 
States [as represented by the Senate].” THE 
FEDERALIST NO. 62 (James Madison). The 2006 
reauthorization of Section 5 was approved 
overwhelmingly by both chambers, with not a single 
Senator voting against it. In other words, the 2006 
reauthorization was approved unanimously by the 
States through their elected representatives, 
including those most directly affected by Section 5. 
That provides further reason for the Court to reject 
Petitioner’s argument that the reauthorization 
violates constitutional principles of federalism.

CONCLUSION

The question before the Court is not the 
wisdom of extending Section 5, although the Court is



13

certainly free to disagree with Congress on that 
question. The question is whether “Congress could 
rationally have concluded” that extending Section 5 
would advance the cause of eradicating racial 
discrimination in election practices. City of Rome, 
446 U.S. at 177. On that question, there can be no 
meaningful dispute, especially given the unanimous 
conclusion of the elected members of the United 
States Senate that Section 5 remains necessary.

Respectfully submitted,

Marc E. Elias 
Co u n s e l  o f  R e c o r d  

John Devaney 
Elisabeth  C. Frost 
Perkins Coie LLP 
700 13th St., NW, Suite 600 
Washington, D.C. 20005 
melias@perkinscoie.com 
(202) 654-6200

Noah Guzzo Purcell 
Perkins Coie LLP 
1201 Third Ave., Suite 4900 
Seattle, WA 98101 
(206) 359-8000
Counsel for Senate Majority Leader 
Harry M. Reid

February 1, 2013

mailto:melias@perkinscoie.com




No. 12-96

In T he

ĵ itprgmg (Court of tlig United i>tatga

Sh elby  County , Alab a m a ,
Petitioner,

V .

Eric H. H older , J r ., A ttorney  General of the U nited Sta t e s , e t  al.,
Respondents.

AFFIDAVIT OF SERVICE
I HEREBY CERTIFY that all parties required to be served, have been served, on this 1st day of February, 
2013, in accordance with U.S. Supreme Court Rule 29.5(c), three (3) copies of the foregoing BRIEF FOR 
SENATE MAJORITY LEADER HARRY M. REID AS AMICUS CURIAE IN SUPPORT OF 
RESPONDENTS by placing said copies with U.S. Mail, First Class Mail, postage prepaid, addressed as 
listed below. I further certify that in accordance with U.S. Supreme Court Rule 25.9 an electronic 
version of the foregoing was sent to the parties listed below:

Bert W. Rein 
Wiley Rein LLP 
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Washington, DC 20006 
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Donald B. Verrilli, Jr.
Solicitor General of the United States 
United States Department of Justice 
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Washington, DC 20530-0001 
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Jon M. Greenbaum 
Lawyers’ Committee for

Civil Rights Under Law 
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Suite 400
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jgreenbaum@lawyerscommittee.org

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American Civil Liberties 

Union Foundation 
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& Educational Fund, Inc. 
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Sworn to and subscribed before me this 1st day of Februai%2013.

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CERTIFICATE OF COMPLIANCE

No. 12-96

Shelby County, Alabama, Petitioner, 
v.

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

As required by Supreme Court Rule 33.1(h), I certify 
that the brief for Senate Majority Leader Reid as 
amicus curiae in support of Respondents contains 
3,005 words, excluding the parts of the brief that are 
exempted by Supreme Court Rule 33.1(d).

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

Executed on dP /

Marc E. Elias



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