Shelby County v. Holder Brief Amici Curiae

    No. 12-96

3n tfje Supreme Court of tlje iHmteb H>tate£

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

Petitioner,

v.

Er ic  H. H o l d e r , Jr ., A t t o r n e y  G e n e r a l , e t a l .,

Respondents.

O n  W r it  o f  C e r t io r a r i to  th e  
U n ite d  St a t e s  C o u r t  o f  A pp e a l s  

fo r  th e  D is t r ic t  o f  C o l u m b ia

BRIEF OF AMICUS CURIAE 
NATIONAL LAWYERS GUILD 

IN SUPPORT OF RESPONDENTS

David Gespass 
GESPASS & JOHNSON 
P.O. BOX 550242 
Birmingham, AL 35255-0242 
205-323-5966 
pass.gandjlaw@gmail.com

Counsel for Amicus Curiae

LEGAL PRINTERS LLC, Washington DC • 202-747-2400 • legalprinters.com

mailto:pass.gandjlaw@gmail.com


TABLE OF CONTENTS

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

STATEMENT OF INTEREST OF AMICUS 
CURIAE............................................................................1

SUMMARY OF ARGUMENT....................................... 2

ARGUMENT................................................................... 4

I. THIS COURT MUST NOT WAVER FROM
THE COUNTRY’S COMMITMENT TO 
ERADICATE RACISM..............................................5

II. JUDICIAL DEFERENCE SHOULD BE
AFFORDED TO LEGISLATIVE 
FACT-FINDING......................................................... 7

III. CERD AND ICCPR IMPOSE A
CONSTITUTIONAL REQUIREMENT ON 
THE U.S. TO UNDERTAKE EFFORTS TO 
ELIMINATE RACISM .............................................. 9

CONCLUSION..............................................................17

i



TABLE OF AUTHORITIES

Ca se s

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

Cook v. United States, 288 U.S. 102 (1933)............. 14

Crawford v. Marion County Election Board, 553 
U.S. 181 (2008)........................................................  16

Dombrowski v. Bister, 380 U.S. 479 (1965).................1

Georgia v. United States, 411 U.S. 526 (1973).......... 6

Hansberry v. Lee, 311 U.S. 32 (1940)......................... 1

Harper v. Virginia Bd. Of Elections, 383 U.S.
663 (1966).................................................................. 12

Holland v. United States, 348 U.S. 121 (1954).........8

Lopez v. Monterey County, 525 U.S. 266 (1998)........6

Marbury v. Madison, 5 U.S. 137 (1803)......................7

Shelby County, Ala. v. Holder, 679 F.3d 848 
(D.C. Cir. 2012)....................................................3, 15

Trans World Airlines, Inc. v. Franklin Mint Corp., 
466 U.S. 243 (1984)................................................  14

United States v. City of Calera, Alabama, No. 
CV-08-BE-1982-S (N.D. Ala. Oct. 29, 2008)...........4

Wesberry v. Sanders, 376 U.S. 1 (1964)...................  12

ii



Constitutional Provisions

U.S. Co n s t . A r t . VI.......................................................9

Sta tu te s

Fannie Lou Hamer, Rosa Parks, and Coretta Scott 
King Voting Rights Act Reauthorization and 
Amendments Act of 2006, Pub. L. No. 109-246,
§ 2(b), 120 Stat. 577 (2006)...................................  16

O th e r  A u th o r itie s

138 Cong. Rec. 8068 (1992)........................................  12

140 Cong. Rec. 14326 (1994)...................................... 13

Barnett Wright, Jefferson County Commission 
Warned In Memo To Follow Consent Decree, 
Birmingham News, Feb. 24, 2012......................... 16

Cong. Globe, 39th Cong., 1st Sess. 157 (1866)..........9

Declaration of Independence (U.S. 1776)............ 5, 10

Douglas A. Blackmon, Slavery by Another Name:
The Re-Enslavement of Black Americans from 
the Civil War to World War II (2008).................... 6

International Convention on the Elimination of All 
Forms of Racial Discrimination (CERD), 660 
U.N.T.S. 195, entered into force Jan. 4, 1969..... 11

iii



International Covenant on Civil and Political Rights 
(ICCPR), G.A. Res 2200A (XXI), 21 U.N. GAOR 
Supp. (No. 16), U.N. Doc. A/6316 (1966), 993
U. N.T.S. 3, entered into force Jan. 3, 1976........  12

Kent Faulk, Jefferson County Commission 
President David Carrington Agrees County 
Hasn't Lived Up To Employment Practices 
Consent Decree, AL.com, Dec. 5, 2012.................... 16

Kyle Whitmire, Bowman says Jefferson County 
Still Has Discriminatory Hiring, Voices 
Confidence In County Manager To Fix Problem,
AL. com, Dec. 10, 2012........................................... 16

United Nations Charter Art. 1(3), 59 Stat. 1031,
T.S. No. 993, entered into force Oct. 24, 1945.....  10

Wendy M. Rogovin, The Politics of Facts: “The 
Illusion of Certainty,” 46 Hastings L. J. 1723 
(1995)............................................................................7

William Paley, The Principles of Moral and
Political Philosophy 551 (1785).................................8

IV



STATEMENT OF INTEREST 
OF AMICUS CURIAEi

The National Lawyers Guild, Inc. is a non-profit 
corporation formed in 1937 as the nation’s first 
racially integrated voluntary national bar 
association, with a mandate to advocate for the 
protection of constitutional, human, and civil rights. 
As one of the non-governmental organizations 
selected to officially represent the American people 
at the founding of the United Nations in 1945, its 
members helped draft the Universal Declaration of 
Human Rights. Members have brought such cases as 
Hansberry v. Lee, 311 U.S. 32 (1940), which struck 
down segregationist Jim Crow laws in Chicago and 
Dombrowski v. Pister, 380 U.S. 479 (1965), halting 
discriminatory and retaliatory state court criminal 
proceedings against civil rights activists in the 
South.

The Lawyers Guild is also a member organization of 
the International Association of Democratic 
Lawyers, which enjoys consultative status with the 
United Nations Economic and Social Council. 
Through its International Committee, it is actively

1 Letters of consent by the parties to the filing of this brief have 
been lodged with the Clerk of this Court. Pursuant to S. Ct. 
Rule 37.6, counsel for the amicus curiae states that no counsel 
for a party authored this brief in whole or in part, and that no 
person other than the amicus, its members, or its counsel made 
a monetary contribution to the preparation or submission of 
this brief.

1



engaged in promoting and developing international 
peace and human rights through law.

SUMMARY OF ARGUMENT

Amicus National Lawyers Guild writes to underscore 
the obligation of this Court not to arrogate to itself 
the job of the legislature, especially in the face of 
overwhelming evidence supporting the-legitimacy of 
Congress’s decision to extend the constitutionally 
crucial role of Section 5 of the Voting Rights Act and 
the Constitutional authority of an elected Congress 
to evaluate evidence presented to it. Substituting its 
own opinion for that of elected officials who heard 
testimony would immeasurably harm the very 
system of checks and balances that are the 
cornerstone of our democracy and would, in fact, 
bring discredit on the Court and engender 
widespread distrust of its motives. The Court lacks 
the authority to substitute its judgment for the 
measured findings of elected officials that racism 
still runs rampant in this land and that covered 
jurisdictions remain appropriate subjects of the 
greater attention the Voting Rights Act imposes 
when that attention places minimal burdens on 
them.

Those burdens are particularly slight as compared to 
the evil they are intended to address. At stake in 
the issue at hand is the so-called preclearance 
provision of a statute—nearly half a century old— 
that has held jurisdictions accountable when they 
try to enact racist electoral practices. Such practices

2



effectively deprive victims of overt past 
discrimination equality in the exercise of the most 
fundamental right of citizenship.

In this case, both the district court and the court of 
appeals upheld the constitutionality of Section 5. In 
rejecting Shelby County’s challenge, Judge David S. 
Tatel of the U.S. Court of Appeals for the District of 
Columbia Circuit, writing for the majority, ruled 
that Congress appropriately extended the 
protections of the preclearance requirement in 2006 
for 25 more years, finding that judicial deference to 
Congress was warranted after an exhaustive review 
of the record, “given that overt racial discrimination 
persists in covered jurisdictions notwithstanding 
decades of section 5 preclearance.” Shelby County, 
Ala. v. Holder, 679 F.3d 848, 873 (D.C. Cir. 2012).

This case affords the Court the opportunity to step 
back to acknowledge and adhere to the principles of 
a fair government envisioned in 1787 by the 
founders: three separate, distinct and coequal
branches of government with overlapping but 
separate spheres of authority, created to prevent 
abuse of power and ensure the protection of 
individual freedoms. While the specific legal and 
moral imperative of eliminating racism within our 
society is an imposing one, members of the Court are 
also duty-bound to exercise judicial deference to the 
lawmakers whose exhaustive fact-finding formed the 
basis for their decision.

Moreover, amicus wishes to elaborate on the treaty 
obligations the United States has undertaken and 
which Congress has implemented by extending

3



Section 5. These obligations exist both under the 
norms of international law and by the mandate of 
Article VI of the Constitution, which makes those 
treaty obligations “the supreme Law of the Land.” 
Compliance with treaty obligations constitutes an 
additional compelling governmental interest in 
enactment of this statute.

ARGUMENT

A reversal in this case would represent the Court’s 
intervention in a way that would undermine our 
society’s commitment to ensuring that vestiges of 
racism are not afforded the opportunity to blossom 
and grow. The record in this case indicates the 
enduring presence of racial discrimination in Shelby 
County, the very kind of prejudice that Section 5 of 
the Voting Rights Act has been relied upon to curtail 
for nearly half a century.

The district court noted the likelihood that, of the 
hundreds of violations of Section 5 that have taken 
place in recent years, many had the intent or effect 
of curtailing the electoral power of African- 
Americans and other excluded peoples. This is 
exemplified by the case brought by the Justice 
Department against the City of Calera in Shelby 
County, resolved by consent decree, United States v. 
City of Calera, Alabama, No. CV-08-BE-1982-S (N.D. 
Ala. Oct. 29, 2008), which alleged multiple Section 5 
violations but did not explicitly allege racial 
disparity. One of the underlying facts, however, was 
that, following an unauthorized change in Calera’s

4



election law, the city’s lone African-American 
councilor lost an election. When the change was 
voided to redress the Section 5 violation, he was 
reelected. It is telling that Shelby County is seeking 
this remedy rather than the simpler and less costly 
remedy of meeting its obligations for ten years and 
being excused from further coverage.

I. THIS COURT MUST NOT WAVER FROM 
THE COUNTRY’S COMMITMENT TO 
ERADICATE RACISM

Certain facts regarding this matter cannot be in 
dispute. The United States has a shameful history 
of discrimination against, and oppression of, African- 
Americans, Native peoples, and other persons of 
color dating back centuries prior to the adoption of 
the Constitution. The first enslaved Africans came 
to the Americas as early as 1502 and, with the 
establishment of a British colony in Virginia in 1607, 
the trade came to what is now part of the United 
States.2 The contempt in which indigenous people 
were held by our founders is embodied in the 
Declaration of Independence, which lists as one of 
the grievances against King George III that he 
“endeavoured to bring on the inhabitants of our 
frontiers, the merciless Indian Savages.” 
Declaration of Independence (U.S. 1776).

2 Amicus trusts this history is sufficiently well documented that 
the Court will take judicial notice of it.

5



Following the Civil War and the passage of the 
Thirteenth Amendment, the situation for African- 
Americans in the deep south -  the center of areas 
subject to section 5 -  hardly improved. See e.g., 
Douglas A. Blackmon, Slavery by Another Name: 
The Re-Enslavement of Black Americans from the 
Civil War to World War II (2008) (concentrating on 
the post-bellum oppression of African-Americans in 
Alabama, where Shelby County is located, and which 
persisted unabated up to World War II).

This sordid history need not be recounted at length, 
but it should not be forgotten and this Court must 
consider its present effects. Indeed, this Court has 
found each prior extension of the Act to be 
warranted. Georgia v. United States, 411 U.S. 526 
(1973), City of Rome v. United States, 446 U.S. 156, 
100 (1980), and Lopez v. Monterey County, 525 U.S. 
266 (1998). The district court and the court of 
appeals have both detailed the extensive 
investigation undertaken by Congress before it 
passed the latest extension in addition to the 
mountain of evidence supporting its decision. 
Because others, including the two lower courts here, 
have thoughtfully explored why it is the province of 
Congress to make such a determination, amicus 
restricts itself only to brief commentary without 
recounting all the testimony and evidence that led 
Congress to its decision.

6



II. JUDICIAL DEFERENCE SHOULD BE 
AFFORDED TO LEGISLATIVE FACT­
FINDING

Since this Court decided Marbury v. Madison, 5 U.S. 
137 (1803), the federal courts have been unwilling 
fact finders, preferring to remain true to their 
constitutional jurisdiction and decide matters of law. 
Federal courts have deferred to Congress and state 
legislatures in findings of fact. And, indeed, 
legislatures have resources and time to dedicate to 
the process of collecting and evaluating information 
necessary to take action. Members of Congress and 
other legislatures may engage in a range of activities 
to assemble their facts, including consulting “staff, 
friends and constituents,” and educating themselves 
“by reviewing past legislation or even by reading a 
novel or watching television.” Wendy M. Rogovin, 
The Politics of Facts: “The Illusion of Certainty, ” 46 
Hastings L. J. 1723, 1743 (1995).

Here, testimony was presented to Congress and its 
Members weighed in on such issues as the credibility 
and persuasiveness of the witnesses it heard. Its 
members were popularly elected and, therefore, 
reflect the popular will. While this Court has the 
duty to determine when the popular will infringes on 
fundamental individual rights, it should be a rare 
case where it voids a law within the specific 
constitutional domain of Congress. Voiding a law 
raises the specter of the judiciary being viewed as an 
overtly partisan political body. The Court should 
make every effort to ensure that it is viewed as an 
independent branch of government divorced from

7



politics and as a neutral arbiter of constitutional 
interpretation.

Further, let us suppose, without acknowledging, that 
the dissent below reasonably interpreted the 
evidence before Congress. That does not mean that 
the majority opinion and the district court’s opinion 
were unreasonable and, if both sides are reasonable, 
that necessarily means that the courts should defer 
to Congress. Even if the evidence before Congress 
admits to differing interpretations and even if 
Congress did not have direct proof of ongoing 
problems in covered jurisdictions, but only inferred 
the need for continuing coverage, it acted within its 
constitutional prerogative.

The evidence before Congress, even if only 
circumstantial (amicus would argue it is more than 
that) was extensive. A defendant in a criminal case 
can be convicted with only circumstantial evidence. 
Holland v. United States, 348 U.S. 121 (1954) 
(“circumstantial evidence is intrinsically no different 
from testimonial evidence”). Some scholars have 
written that circumstantial evidence is more credible 
than direct evidence. See e.g., William Paley, The 
Principles of Moral and Political Philosophy 551 
(1785) (“well-authenticated circumstances composes 
a stronger ground of assurance than positive 
testimony, unconfirmed by circumstances, usually 
affords. Circumstances cannot lie”). Surely Congress 
can implement legislation fulfilling its 
Constitutional duty under the Thirteenth and 
Fourteenth Amendments based upon similar 
evidence.

8



Moreover, winning the right not just to testify but to 
have one’s experiences taken seriously by the law 
was a critical advance in the civil rights struggle in 
this country. See e.g., Cong. Globe, 39th Cong., 1st 
Sess. 157 (1866) (report of the Judiciary Committee 
that Congress had the Constitutional power to allow 
African Americans as witnesses in state courts and 
recommending that the House do so). With efforts to 
protect racial equality finally gaining majoritarian 
support in the political branches, it would be cruel 
irony indeed if this Court were to substitute its 
factual beliefs for the considered judgment of 
Congress, informed as it was by the testimony of 
experts and constituents.

III. CERD AND ICCPR IMPOSE A
CONSTITUTIONAL REQUIREMENT ON 
THE U.S. TO UNDERTAKE EFFORTS TO 
ELIMINATE RACISM

Given the unquestioned history of discrimination, 
particularly in the-states subject to the preclearance 
provisions of Section 5, and the embarrassment it 
has caused the United States around the world, 
principles of international and treaty law must be 
given due consideration in this Court’s analysis. 
Because its treaty obligations are the “supreme Law 
of the Land,” this is not merely a matter of 
international law, but of constitutional requirements 
as well. U.S. Const. Art. VI. In addition, It should 
be noted that “a decent respect for the opinions of 
mankind” and the submission of what we do and 
why to a “candid world” are integral to our history

9



and inscribed in one of the two foundational 
documents that gave birth to this nation. 
Declaration of Independence (U.S. 1776).

The United Nations Charter is a treaty entered into 
and ratified by the United States. Indeed, the 
United States played a leading role in establishing 
the United Nations. The Charter provides that one 
of the raisons d’etre of the United Nations is 
“promoting and encouraging respect for human 
rights and for fundamental freedoms for all without 
distinction as to race, sex, language, or religion.” 
United Nations Charter Art. 1(3), 59 Stat. 1031, T.S. 
No. 993, entered into force Oct. 24, 1945. Congress’s 
efforts to insure the fundamental right of African- 
Americans and other citizens of color to engage 
meaningfully in the electoral process is therefore 
both a response to a treaty obligation and a 
constitutional mandate.

Accordingly, the government has a compelling, 
indeed constitutionally compelling, interest in 
enforcing the International Convention on the 
Elimination of All Forms of Racial Discrimination 
(CERD, which states:

Special measures taken for the sole 
purpose of securing adequate 
advancement of certain racial or ethnic 
groups or individuals requiring such 
protection as may be necessary in order 
to ensure such groups or individuals 
equal enjoyment or exercise of human 
rights and fundamental freedoms shall 
not be deemed racial discrimination,

10



provided, however, that such measures 
do not, as a consequence, lead to the 
maintenance of separate rights for 
different racial groups and that they 
shall not be continued after the 
objectives for which they were taken 
have been achieved. . . .

States Parties shall, when the 
circumstances so warrant, take, in the 
social, economic, cultural and other 
fields, special and concrete measures to 
ensure the adequate development and 
protection of certain racial groups or 
individuals belonging to them, for the 
purpose of guaranteeing them the full 
and equal enjoyment of human rights 
and fundamental freedoms. These 
measures shall in no case entail as a 
consequence the maintenance of 
unequal or separate rights for different 
racial groups after the objectives for 
which they were taken have been 
achieved.

International Convention on the Elimination of All 
Forms of Racial Discrimination (CERD), 660 
U.N.T.S. 195, entered into force Jan. 4, 1969, Art 
1(4), Art. 2(2). CERD’s purpose is to insure 
“adequate advancement of certain racial or ethnic 
groups or individuals requiring such protection,” so 
as to afford them “equal enjoyment or exercise of 
human rights and fundamental freedoms.” CERD 
Art. 1 § 4. While it is true that special measures 
should only be utilized for as long as they are

11



needed, which is the issue here, the right to vote is 
“precious” and “fundamental,” so such measures are 
particularly important and any error should be on 
the side of insuring equal access to the polls. See 
Harper v. Virginia Bd. Of Elections, 383 U.S. 663, 
670 (1966). As this Court has sagely observed: 
“Other rights, even the most basic, are illusory if the 
right to vote is undermined. Our Constitution leaves 
no room for classification of people in a way that 
unnecessarily abridges this right.” Wesberry v. 
Sanders, 376 U.S. 1, 17 (1964). If there is any area 
in which the courts should tread carefully, it is in 
regard to the threat of disenfranchisement of citizens 
exercising this fundamental right.

The U.S. government likewise expressed its view 
that actions aimed at rectifying past discrimination 
are consistent with its treaty obligations when it 
ratified the International Covenant on Civil and 
Political Rights (ICCPR), G.A. Res 2200A (XXI), 21 
U.N. GAOR Supp. (No. 16) at 49, U.N. Doc. A/6316 
(1966), 993 U.N.T.S. 3, entered into force Jan. 3, 
1976. That convention prohibits discrimination or 
distinctions based upon race, color, sex, language, 
religion, political or other opinion, national or social 
origin, property, birth or other status. Because the 
text of the covenant did not specifically sanction 
corrective measures, the United States adopted an 
understanding to the effect that it would make 
distinctions if rationally related to a legitimate 
government objective. 138 Cong. Rec. 8068 (1992). 
That is to say, the government’s understanding of its 
treaty obligation under the ICCPR is that only a

12



rational basis is required for such corrective action.3 
And that treaty obligation is the “supreme Law of 
the Land.” U.S. Const. Art. 6.

Although the United States adopted a number of 
reservations, understandings and declarations when 
it ratified the CERD, it never disavowed the need to 
take corrective action to remedy past discrimination. 
Congress reserved the right not to follow Article 4, 
which forbids racist speech, and Article 7, which 
requires that “States Parties undertake to adopt 
immediate and effective measures, particularly in 
the fields of teaching, education, culture and 
information, with a view to combating prejudices 
which lead to racial discrimination. . .” 140 Cong. 
Rec. 14326 (1994). It did not, however, preclude 
measures necessary to address the legacy of 
discrimination that has plagued the union since 
before its birth. It is clear that the United States 
has undertaken treaty obligations that endorse 
measures taken for the purpose of achieving genuine 
equality. Again, such measures are especially crucial 
when it comes to voting, because the failure to 
remedy the problem there makes it impossible to 
remedy the problem anywhere.

3 Amicus understands that this Court may have imposed a 
somewhat more rigorous standard, requiring that the law must 
be “congruent and proportional” to the evil sought to be 
corrected, perhaps without regard to the ICCPR and our 
government’s understanding of the extent of what could be 
done to correct this particular evil.

13



Admittedly, our jurisprudence holds that non-self­
executing treaties, like the CERD, require enabling 
legislation to have the force of law under U.S. 
CONST., Art, VI. See e.g., Trans World Airlines, Inc. 
v. Franklin Mint Corp., 466 U.S. 243, 252 (1984) 
(holding that no enabling legislation was required to 
give the Warsaw Convention, a self-executing treaty, 
the force of law); see also, Cook v. United States, 288 
U.S. 102, 119 (1933). However, these cases hold only 
that non-self-executing treaties are distinct only 
because they need enabling legislation to be 
enforceable in domestic courts. Nowhere is it said 
that non-self-executing treaties are without meaning 
-  a position which, if adopted, would wreak havoc 
with international relations as it would render any 
ratification of a non-self-executing treaty 
meaningless. At a bare minimum, these human 
rights treaties serve as persuasive articulation of the 
compelling government interest in genuine equality 
which clearly cannot be achieved in any area if not 
protected in the electoral sphere; and in turn, 
compliance with our declarations of commitment to 
these high principles is a compelling state interest. 
Abandonment of such principles should be 
inconceivable. In fact, Section 5 be would have been 
seen as enabling legislation enacted pursuant to the 
CERD had it been originally been passed by 
Congress prior to the United States ratifying the 
treaty. The latest extension of Section 5, passed 
after the United States ratified the CERD, in 
addition to the myriad other reasons articulated by 
the district and circuit court opinions, should be so 
understood.

14



Assuming that the extension of the Voting Rights 
Act should be congruent and proportional to the 
problem it seeks to correct, that congruence and 
proportionality still must balance the overriding 
importance of the right to vote against the relatively 
minimal burdens placed upon states and their 
subdivisions to obtain preclearance. See 679 F.3d at 
868 (observing that the process of obtaining 
preclearance is “routine and efficient”); 811 F. Supp. 
at 501 (noting the “minimal administrative cost” 
related to compliance).4

More than overwhelming those minimal burdens, 
Congress (and others) have properly determined that 
the effects of a racist past remain with us, 
particularly in covered jurisdictions. Jefferson 
County, Alabama, which is contiguous to Shelby 
County,5 has recently admitted that it has failed to 
abide by a 30-year-old consent decree intended to 
remedy race and gender discrimination in hiring of 
county and that discriminatory practices have 
continued.6

4 In fact, the burdens imposed by Sec. 5 are so minimal that the 
oxymoronic “retroactive preclearance” of changes is routine.

5 In relatively recent years, many whites fled from Jefferson to 
Shelby County because of the increased African-American 
population and the concomitant increase in black electoral 
power.

6 The contempt hearing took place in December 2012 and no 
ruling has yet been made. Reports, however, reflect the 
county’s admissions. See e.g., Kyle Whitmire, Bowman says 
Jefferson County Still Has Discriminatory Hiring, Voices

15



Far less has been enough to sustain legislative 
action in other settings. For example, there is no 
evidence anywhere in the country that people voting 
illegally in person have affected the outcome of any 
election, yet this Court has previously found that 
laws requiring voters to provide photo identification 
before being allowed to cast ballots are 
constitutional. Crawford v. Marion County Election 
Board, 553 U.S. 181 (2008). By contrast, 15,000 
pages of evidence, carefully weighed by Congress led 
it to the conclusion that discrimination persists in 
the electoral arena and adversely affects people of 
color, particularly in the jurisdictions covered by Sec. 
5. Fannie Lou Hamer, Rosa Parks, and Coretta 
Scott King Voting Rights Act Re authorization and 
Amendments Act of 2006, Pub. L. No. 109-246, § 
2(b), 120 Stat. 577 (2006). This Court cannot 
consistently find that the Indiana legislature acted

Confidence In County Manager To Fix Problem, AL.com, Dec. 
10, 2012 (“Several career categories at the county still showed 
statistically significant bias against women and minorities, 
witnesses from both sides said”); Kent Faulk, Jefferson County 
Commission President David Carrington Agrees County Hasn't 
Lived Up To Employment Practices Consent Decree, AL.com, 
Dec. 5, 2012 (reporting that white County Commission 
president David Carrington acknowledged the failure of the 
county to comply with the requirements of the consent decree 
and needed to correct certain hiring practices); Barnett Wright, 
Jefferson County Commission Warned In Memo To Follow 
Consent Decree, Birmingham News, Feb. 24, 2012 (reporting on 
a memo written by a member of the county attorney’s office 
warning Commissioner Jimmie Stephens that his decisions to 
lay off lower paid African-American employees rather than 
higher-paid white employees would be “very difficult to 
explain”).

16



constitutionally in Crawford and that Congress 
exceeded its authority here.

In light of a history of hundreds of years of 
oppression and disenfranchisement, the continuing 
incidents of such disenfranchisement, the slight 
burden on covered jurisdictions to meet their 
obligations under Section 5 of the Voting Rights Act, 
the fundamental nature of the right involved, the 
constitutional burdens assumed by the United 
States by its treaty obligations and the international 
understanding of the importance of rectifying past 
racial discrimination, the reasons Congress has 
found for extending the Act are more than sufficient 
to justify its decision.

CONCLUSION

For the foregoing reasons, amicus curiae respectfully 
urges this Honorable Court to affirm the decision 
below.

Dated: February 1, 2013

Respectfully submitted,

David Gespass 
GESPASS & JOHNSON 
P.O. Box 550242 
Birmingham, AL 35255-0242 
205-323-5966 
pass.gandjlaw@gmail.com

17

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February 1, 2013

Clerk
Supreme Court o f the United States 
1 First Street, NE 
Washington, D.C. 20002

Re No. 12-96: Shelby County, Alabama v. Eric H. Holder, Jr., Attorney General, etal.

Dear Sir or M adam :

As a member o f the Supreme Court Bar, 1 hereby certify that pursuant to Rule 29, on 
February 1, 2013, I caused to be served, by depositing in an official “first class mail” receptacle 
o f the United States Post Office, three copies o f the Brief o f Amicus Curiae National Lawyers 
Guild in Support o f Respondents on the following counsel for the Petitioner, Respondents and 
Respondents and Respondent-Intervenors:

PETITIONER:
Bert W. Rein 
Wiley Rein LLP 
1776 K Street. N.W.
Washington, DC 20006

RESPONDENT ERIC H. HOLDER, JR., 
ATTORNEY GENERAL:

Donald B. Verilli, Jr.
Solicitor General
United States Department o f Justice 
Room 5614
950 Pennsylvania Ave. NW 
Washington, DC 20530-0001

RESPONDENT-INTERVENORS EARL 
CUNNINGHAM, E T  AL. -
Debo P. Adegbile
NAACP Legal Defense & Educational 

Fund, Inc.
99 Hudson Street, 16th Floor 
New York, NY 10013

RESPONDENT INTERVENOR BOBBY 
LEE HARRIS:

Jon M. Greenbaum
Lawyers' Committee for Civil Rights Linder Law 
1401 New York Avenue, NW 
Suite 400
Washington, DC 20005

RESPONDENT-INTERVENORS 
BOBBY PIERSON, ET AL.:
Laughlin McDonald
American Civil Liberties Union Foundation 
230 Peachtree Street NW 
Atlanta, GA 30303-1504

This service was effected at the request of counsel for Am icus Curiae National Lawyers 
Guild.



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February 1, 2013

Clerk
Supreme Court of the United States 
1 First Street, NE 
Washington, D.C. 20002

R e N o . 1 2 -9 6 : SHELBY COUNTY, ALABAMA V. ERIC H . HOLDER, JR., ATTORNEY
G e n e r a l , e t a l .

Dear Sir or Madam:

As required hy Supreme Court Rule 33.1(h). I certify that the Brief of Amicus 
Curiae National Lawyers Guild in Support of Respondents referenced above contains 
3 ,8 0 0  words, excluding the parts of the document that are exempted by Supreme 
Court Rule 33.1(d).

As a member of the Supreme Court Bar, I declare under penalty of perjury that