Correspondence from Wilson to Guinier

    No. 12-96

In  T h e

Supreme (tort nf %  United
S h e l b y  C o u n t y , A l a b a m a , 

v.
Petitioner,

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

On Writ of Certiorari 
to the United States Court of Appeals 
for the District of Columbia Circuit

BRIEF OF GABRIEL CHIN, ATIBA ELLIS, 
CHRISTOPHER S. ELMENDORF, JANAI S. 

NELSON, BERTRALL ROSS, DANIEL TOKAJI, 
AND FRANITA TOLSON AS AMICI CURIAE IN 

SUPPORT OF RESPONDENTS

Je f f r e y  T . G r e e n *
R o b e r t  N . H o c h m a n  
Sa r a h  O ’R o u r k e  S c h r u p  
Ju s t in  A. B e n s o n  
W il l ia m  M . D o o l it t l e  
N o r t h w e s t e r n  U n i v . 
Su p r e m e  C o u r t  Pr a c t ic u m  
375 East Chicago Avenue 
Chicago, IL 60611 
(312) 503-8576 
jgreen@sidley.com

Counsel for Amici Curiae 
February 1, 2013 * Counsel of Record
W il s o n -E p e s  P r in t in g  C o ., In c . -  (202)789-0096 -  W a s h in g t o n , D. C. 20002

mailto:jgreen@sidley.com


TABLE OF CONTENTS
Page

TABLE OF AUTHORITIES................................... a

INTEREST OF AMICI CURIAE...........................  1
SUMMARY OF THE ARGUMENT...................... 4
ARGUMENT............................................................  9

L SECTION 5 OF THE VOTING RIGHTS 
ACT IS VALID AS AN EXERCISE OF 
CONGRESS’ AUTHORITY UNDER THE 
ELECTIONS CLAUSE...................................  9
A. Congress Has Comprehensive Power

Over Federal Elections...............................  9
B. Congress Enacted Section 5 Of The

Voting Rights Act Pursuant To Its Broad 
Elections Clause Power..............................  13

C. Principles Of State Sovereignty Provide
No Limit On Congress’ Elections Clause 
Authority....................................................... lg

D. The Elections Clause Power Need Not
Be Exercised Uniformly, And, In Any 
Event, Section 5 Is Uniform Across The 
Nation............................................................... 20

II. CONGRESS’ ELECTIONS CLAUSE 
POWER DEFEATS PETITIONER’S 
FACIAL CHALLENGE......................................  24

CONCLUSION...........................................................  27

(i)



CASES
TABLE OF AUTHORITIES

Page
Ass’n of Cmty. Orgs. for Reform Now v.

Edgar, 56 F.3d 791 (7th Cir. 1995)........... 11
Ass’n of Cmty. Orgs. for Reform Now v.

Miller, 129 F.3d 833 (6th Cir. 1997).......  11
Ayotte v. Planned Parenthood of N. New

Eng., 546 U.S. 320 (2006)..........................  25
Blanchette v. Conn. Gen. Ins. Corps., 419

U.S. 102 (1974)............................................  22
Cook v. Gralike, 531 U.S. 510 (2001).....  5, 18
Edye v. Robertson, 112 U.S. 580 (1884)......  22
Fernandez v. Wiener, 326 U.S. 340 (1945) .. 22
Florida v. Mellon, 273 U.S. 12 (1927).......... 7, 22
Foster v. Love, 522 U.S. 67 (1997) .... 9, 10, 18, 20 
Gonzalez v. Arizona, 677 F.3d 383 (9th Cir.

2012) cert granted sub nom. 133 S. Ct.
476 (2012).....................................................  5,19

Katzenbach v. Morgan, 384 U.S. 641 (1966) 26
M ’Culloch v. Maryland, 17 U.S. 316 (1819) 5, 13 
Nat’l Fed’n of Indep. Bus. v. Sebelius, 132

S. Ct. 2566 (2012)........................................  15
Nw. Austin Mun. Util. Dist. No. One v.

Holder, 557 U.S. 193 (2009)....................... 8, 26
Parker v. Levy, 417 U.S. 733 (1974).............  8
Ex parte Siebold, 100 U.S. 371

(1879).......................  4 ,5 ,9 ,1 3 ,1 4 ,1 6
Smiley v. Holm, 285 U.S. 355 (1932).......... 12, 13
South Carolina v. Katzenbach, 383 U.S.

301 (1966).....................................................  15
Stellwagen v. Clum, 245 U.S. 605 (1918).... 22
Tennessee v. Lane, 541 U.S. 509 (2004).......  26
United States v. Classic, 313 U.S. 299

(1941).......................................................  5, 12, 13
United States v. Salerno, 481 U.S. 739 

(1987).........................................................  25



Ill

United States v. Stevens, 130 S. Ct. 1577
(2010)............................................................  7, 25

U.S. Term Limits, Inc. v. Thornton, 514
U.S. 779(1995)................................... 5, 9, 16, 18

Vieth v. Jubelirer, 541 U.S. 267 (2004)....... 12
Voting Rights Coal. v. Wilson, 60 F.3d 1411

(9th Cir. 1995).............................................  11
Wash. State Grange v. Wash. State 

Republican Party, 552 U.S. 442 (2008)... 7, 24 
Ex parte Yarbrough, 110 U.S. 651 

(1884)............................................  9 ,10 ,11 ,26

CONSTITUTION AND STATUTES
U.S. Const, art. I, § 4 ...................... 4, 6, 12, 17, 21
U.S. Const, art. I, § 8............................  5, 6, 20, 21
Voting Rights Act of 1965, Pub. L. No. 89-

110, 79 Stat. 43 7 .........................................  14
42 U.S.C. § 1973.........................................7, 11, 23

RULES
Supreme Court Rule 37.6..............................  1
Supreme Court Rule 37.3..............................  1

SCHOLARLY AUTHORITIES
Gabriel J. Chin, U.C. Davis Legal Studies 

Research Paper No. 313, Section 5 of the 
Voting Rights Act and the Aggregate 
Powers’ of Congress over Elections 13 
(2012),
http://ssrn.com/abstract=2132158............4, 6, 19

http://ssrn.com/abstract=2132158


IV

The Continuing Need for Section 5 Pre­
clearance: Hearing Before the S. Comm, 
on the Judiciary, 109th Congress 5 
(2006) (testimony of Professor Pamela 
Karlan) available at
http://www.gpo.gov/fdsys/pkg/CHRG- 
109shrg28753/pdf/CHRG109shrg28753.p
d f....................................................................  14

The Federalist No. 59 ........................ 9, 18, 19, 23
Daniel P. Tokaji, Intent and Its 

Alternatives: Defending the New Voting 
Rights Act, 58 Ala. L. Rev. 349
(2006-07)......................................................  11

Franita Tolson, Reinventing Sovereignty?: 
Federalism as a Constraint on the Voting 
Rights Act, 65 Vand. L. Rev. 1195
(2012)...........................................................  16, 18

H.R. Rep. No. 89-439 (1965).........................  14
U.S. Dep’t of Justice, Section 4 of the 

Voting Rights Act,
http ://www.j ustice. gov/crt/about/vot/misc/ 
sec_4.php#bailout (last visited Jan. 22,
2013). 23

http://www.gpo.gov/fdsys/pkg/CHRG-109shrg28753/pdf/CHRG109shrg28753.p
http://www.gpo.gov/fdsys/pkg/CHRG-109shrg28753/pdf/CHRG109shrg28753.p
http://www.j


INTEREST OF AMICI CURIAEi
Gabriel J. Chin, a Professor of Law at the 

University of California Davis School of Law, has 
written extensively about the right to vote. His work 
includes Section 5 of the Voting Rights Act and the 
“Aggregate Powers” of Congress over Elections, UC 
Davis Legal Studies Research Paper No. 313, 
available at http://ssrn.com/abstract=2132158, The 
Tyranny of the Minority: Jim Crow and the Counter- 
Majoritarian Difficulty, 43 HARV. ClV. RTS.-ClV. LIBS. 
L. Rev. 65 (2008) (with Randy Wagner),
Reconstruction, Felon Disenfranchisement, and the 
Right to Vote: Did the Fifteenth Amendment Repeal 
Section 2 of the Fourteenth Amendment?, 92 Geo. L.J. 
259 (2004), and The Voting Rights Act of 1867: The 
Constitutionality of Federal Regulation of Suffrage 
During Reconstruction, 82 N.C. L. Rev. 1581 (2003).

Atiba Ellis is an Associate Professor of Law at the 
West Virginia University College of Law. Professor 
Ellis focuses his research and writing on the law of 
democracy with a specific interest in voting rights 
law. He is the author of The Cost of the Vote: Poll 
Taxes, Voter Identification Laws, and the Price of 
Democracy, 86 DENVER L. Rev. 1023 (2009). His 
forthcoming research will similarly focus on election 
regulation and specific legal mechanisms for 
protecting the interests of structurally

1 Pursuant to Supreme Court Rule 37.6, amici curiae states 
that no counsel for any party authored this brief in whole or in 
part and that no entity or person, aside from amici curiae and 
its counsel, made any monetary contribution towards the 
preparation and submission of this brief. Pursuant to Supreme 
Court Rule 37.3(a), amici curiae certifies that counsel of record 
for both petitioners and respondents have consented to this 
fifing in letters on file with the Clerk’s office.

http://ssrn.com/abstract=2132158


2
disenfranchised voters. Professor Ellis attended 
Duke University, where he received a Bachelors of 
Arts, a Masters in History (focusing on voter 
disenfranchisement in the Jim Crow South), and a 
Juris Doctorate. He clerked for the Honorable 
Theodore A. McKee on the United States Court of 
Appeals for the Third Circuit and the Honorable 
James A. Beaty, Jr. on the United States District 
Court for the Middle District of North Carolina.

Christopher S. Elmendorf is a Professor of Law at 
the University of California at Davis School of Law. 
Professor Elmendorf is an expert on election law and 
is the author of Making Sense of Section 2: Of Biased 
Votes, Unconstitutional Elections, and Common Law 
Statutes, 160 U. Pa . L. Rev. 377 (2012). Professor 
Elmendorf attended Oberlin College and Yale Law 
School. He clerked for the Honorable Guido Calabresi 
on the United States Court of Appeals for the Second 
Circuit.

Janai S. Nelson is an Associate Professor and 
Assistant Director of the Ronald H. Brown Center for 
Civil Rights and Economic Development at St. John’s 
University School of Law. Professor Nelson’s 
scholarship and teaching focuses on election law and 
voting rights issues. Her current project, The Causal
Context of Disparate Vote Denial__ B.C. L. Rev. ___
(forthcoming 2013), examines Section 2 of Voting 
Rights Act as a disparate impact standard and the 
racial dimensions of modern vote denial. Professor 
Nelson attended UCLA School of Law and clerked for 
the Honorable Theodore McMillian on the United 
States Court of Appeals for the Eighth Circuit and 
the Honorable David. H. Coar on the United States 
District Court for the Northern District of Illinois.

Bertrall Ross is a professor of election law and 
constitutional law with a special concern for voting



3
rights and congressional authority to enforce 
antidiscrimination laws under the Constitution at the 
University of California, Berkeley School of Law. He 
is a faculty member for the Haas Initiative for a Fair 
and Inclusive Society and an Executive Board 
Member for the Thelton E. Henderson Center for 
Social Justice. He has published articles on 
constitutional law, statutory interpretation, and 
election law with a particular focus on the Voting 
Rights Act. Professor Ross attended Yale Law School 
and clerked for the Honorable Myron Thompson on 
the United States District Court for the Middle 
District of Alabama and the Honorable Dorothy 
Nelson on the United States Court of Appeals for the 
Ninth Circuit.

Daniel Tokaji is the Robert M. Duncan/Jones Day 
Designated Professor of Law at The Ohio State 
University, Moritz College of Law. Professor Tokaji 
is an authority on election law and voting rights. He 
is the co-author of the casebook Election Law: Cases 
and Materials (5th ed. 2012) and co-editor of Election 
Law Journal. A graduate of Harvard College and the 
Yale Law School, Professor Tokaji clerked for the 
Honorable Stephen Reinhardt on the United States 
Court of Appeals for the Ninth Circuit.

Franita Tolson, is the Betty T. Ferguson Professor 
of Voting Rights at the Florida State University 
College of Law, where she teaches courses on Election 
Law and Constitutional Law. Professor Tolson 
received her Juris Doctorate from The University of 
Chicago Law School and served as a law clerk to the 
Honorable Ann Claire Williamson on the United 
States Court of Appeals for the Seventh Circuit and 
the Honorable Ruben Castillo on the United States 
District Court for the Northern District of Illinois. 
Professor Tolson is the author of Reinventing



4
Sovereignty?: Federalism as a Constraint on the 
Voting Rights Act, 65 Vand. L. Rev. 1195 (2012), 
which examines the extent of Congress’ authority 
under the Elections Clause.

SUMMARY OF THE ARGUMENT
The Fourteenth and Fifteenth Amendments are not 

and have never been the sole source of Congress’ 
authority for Section 5.2 Section 5 concerns elections 
not only for state officials, but also for federal 
officials. The Elections Clause, U.S. Const, art I, § 4, 
cl. 1, provides distinct, clear authority for Congress to 
enact Section 5’s pre-clearance procedures for state 
laws concerning federal elections.

The Elections Clause provides:
The Times, Places and Manner of holding 
Elections for Senators and Representatives, shall 
be prescribed in each State by the Legislature 
thereof; but the Congress may at any time by 
Law make or alter such Regulations, except as to 
the Places of choosing Senators.

Id. Congress’ Elections Clause power is broad and 
plenary. Ex parte Siebold, 100 U.S. 371, 388 (1879). 
Congress enjoys “general supervisory power over the 
whole subject” of federal elections. Id. at 387. Like all 
other powers directly granted to Congress, Congress’ 
legislative authority over federal elections is 
enhanced by the Necessary and Proper Clause, which

2 Professor Gabriel J. Chin explains that Congress relied upon 
the Fourteenth and Fifteenth Amendments and the Elections 
Clause as its sources of power in enacting the VRA. See Gabriel 
J. Chin, U.C. Davis Legal Studies Research Paper No. 313, 
Section 5 of the Voting Rights Act and the ‘Aggregate Powers’ of 
Congress over Elections 13 (2012),
http ://ssrn.com/abstract=2132158.



5
applies to “all . . . powers vested by [the] Constitution 
in the government of the United States.” U.S. Const, 
art. I, § 8, cl. 18. In combination with the Necessary 
and Proper Clause, Congress has the discretion to 
effect “all means which are appropriate,” M ’Culloch v. 
Maryland, 17 U.S. 316, 421 (1819), to meet the 
legitimate goal of “protection of the integrity of 
elections.” United States v. Classic, 313 U.S. 299, 319 
(1941) (internal quotation marks omitted). Section 5 
is a legitimate exercise of Congress’ authority to 
protect the integrity of federal elections. This Court 
should not disturb it.

Congress’ power under the Elections Clause is not 
qualified by the principle of state sovereignty. The 
Elections Clause provides a procedural role for the 
states in federal elections, Cook v. Gralike, 531 U.S. 
510, 514 (2001), but the acknowledgement of that role 
is neither a recognition nor a grant of sovereign 
authority to the states over federal elections. In U.S. 
Term Limits, Inc. v. Thornton, this Court declared 
that concerns about federalism do not apply to the 
regulation of federal elections because that power is 
expressly delegated to Congress and not reserved to 
the states by the Tenth Amendment. See 514 U.S. 
779, 804-05 (1995). The principle of dual sovereignty 
adopted by the Framers, which rejected the model of 
the Articles of Confederation, demands as much. The 
federal government must have the sovereign 
authority over the manner by which its legislators 
are selected if it is to have truly independent 
authority, as the Framers intended. Congress thus 
may displace state regulation over federal elections 
entirely, allowing states no input. Ex parte Siebold, 
100 U.S. at 383; Gonzalez v. Arizona, 677 F.3d 383, 
391 (9th Cir. 2012) (en banc) (Congress has the power 
to completely negate state regulation of federal



6
elections), cert granted sub nom. 133 S. Ct. 476 
(2012). Likewise, a more limited assertion of 
Congress’ authority, like requiring states to pre-clear 
changes to laws concerning federal elections, is no 
intrusion on state sovereign authority. See Chin, 
supra, note 1, at 15-16.

Just as principles of state sovereignty present no 
obstacle to Congress’ authority under the Elections 
Clause, neither do principles of uniformity. The fact 
that the VRA imposes pre-clearance requirements on 
some jurisdictions, but not on others, does not mean 
Congress has acted beyond its Constitutional power 
under the Elections Clause. The Elections Clause 
gives Congress authority to enact national solutions 
to regional voting problems. The Elections Clause 
does not require that Congress’ regulations apply 
with complete uniformity to all jurisdictions. Article 
I specifies certain Congressional powers that must be 
exercised uniformly, such as its powers over taxation, 
U.S. Const, art. I, § 8, cl. 1, naturalization, and 
bankruptcy, id. § 8, cl. 4. The Elections Clause 
contains no such uniformity requirement, and such a 
restriction would be ill-suited to the purpose of the 
clause. The Elections Clause contemplates variation 
in state laws because “each State” will adopt its own 
set of regulations governing federal elections. See id. 
§ 4, cl. 1. Exercises of Congress’ authority under the 
Elections Clause need not apply uniformly.

In any event, Section 5 presents a uniform, national 
solution to the problem of racial discrimination in 
voting. Its procedures apply to all jurisdictions with a 
history or practice of racial discrimination in voting. 
Furthermore, the list of covered jurisdictions is not



7
static.3 It is hardly surprising that federal law 
concerning federal elections would have varying 
impact in light of the widely varying electoral history 
and regulations of the several states. This does not 
mean that the federal law is not uniform. Congress 
may enact uniform laws that operate differently in 
different states because of local laws or conditions. 
See Florida v. Mellon, 273 U.S. 12, 17 (1927). Even if 
uniformity were required, Congress designed the 
VRA as a uniform rule.

In the context of this case, the Elections Clause is 
no mere detail. Petitioner has brought a facial 
challenge to Section 5. See Compl. 1. Such a 
challenge asks this Court to rule that “no set of 
circumstances exists under which [the VRA] would be 
valid,” see United States v. Stevens, 130 S. Ct. 1577, 
1587 (2010) (internal quotation marks omitted) 
(quoting United States v. Salerno, 481 U.S. 739, 745 
(1987)), and that “the law is unconstitutional in all of 
its applications.” See Wash. State Grange v. Wash. 
State Republican Party, 552 U.S. 442, 449 (2008). No 
such ruling is possible in light of the Elections 
Clause’s broad grant of authority to Congress. Amici 
acknowledge that the Elections Clause does not 
provide Congress with the authority to reach changes 
to election laws that affect purely state or local 
elections. However, Shelby County has brought a 
facial challenge against Section 5, and the Elections 
Clause provides ample authority for the applications 
of Section 5 to changes that affect federal elections. 
As a result, petitioner’s facial challenge must fail.

3 The statute’s “hail-in” and “bail-out” provisions focus the 
act’s application on discriminatory laws, wherever enacted, 
rather than on a fixed hst of jurisdictions. See 42 U.S.C. 
§ 1973b(a).



8
Indeed, this case exemplifies the wisdom of this 

Court’s traditional reluctance to strike down federal 
statutes on their face. Parker v. Levy, 417 U.S. 733, 
760 (1974) (“This Court has, however, repeatedly 
expressed its reluctance to strike down a statute on 
its face where there were a substantial number of 
situations to which it might be validly applied.”). A 
focus on Congress’ authority under the Fourteenth 
and Fifteenth Amendments is understandable, but 
too narrow. Amici are confident that the Fourteenth 
and Fifteenth Amendments provide ample authority 
to support Section 5. However, even if they did not, 
this Court could not overlook Congress’ separate and 
independent authority under the Elections Clause to 
adopt Section 5 for federal elections. To the contrary, 
because a facial challenge must fail if there is any set 
of circumstances under which the challenged act of 
Congress is valid, this Court can and should begin 
and end its analysis with that source of 
Congressional power. The Elections Clause provides 
a narrow and clear basis for rejecting petitioner’s 
facial challenge that renders any further 
consideration of Congress’ authority under the 
Fourteenth and Fifteenth Amendments unnecessary. 
Nw. Austin Mun. Util. Disk No. One v. Holder, 557 
U.S. 193, 205 (2009) (recognizing the well-established 
practice of this Court avoiding constitutional 
questions unnecessary to decide the case).



ARGUMENT
I. SECTION 5 OF THE VOTING RIGHTS ACT 

IS VALID AS AN EXERCISE OF 
CONGRESS’ AUTHORITY UNDER THE 
ELECTIONS CLAUSE.
A. Congress Has Comprehensive Power 

Over Federal Elections.
The federal government’s existence depends on fair 

federal elections. Ex parte Yarbrough, 110 U.S. 651 
(1884). It is hardly surprising, then, that “the power 
of Congress over the subject [of federal elections] is 
paramount. It may be exercised “as and when 
Congress sees fit to exercise it.” Ex parte Siebold, 100 
U.S. at 384. “The Clause gives Congress 
‘comprehensive’ authority to regulate the details of 
elections.” Foster v. Love, 522 U.S. 67, 68-70, 71 n.2 
(1997).

The Framers’ principal purpose in adopting the 
Elections Clause was to empower the federal 
government to prevent efforts to undermine or 
corrupt the elections process for federal officials. See 
The Federalist No. 59 (Alexander Hamilton) (Clinton 
Rossiter ed., 1961). As Alexander Hamilton put it, 
“[the Clause’s] propriety rests upon the evidence of 
this plain proposition, that every government ought 
to contain in itself the means of its own 
preservation.” Id. at 362 (Alexander Hamilton). See 
also U.S. Term Limits, 514 U.S. at 808-09 (quoting 2 
Records Of The Federal Convention Of 1787, at 240 
(M. Farrand ed.1911) (noting Madison’s concern that 
“[i]t was impossible to foresee all the abuses that 
might be made of the [states’] discretionary power 
[under the Elections Clause]” and noting that because 
the Framers feared that “the diverse interests of the 
States would undermine the National Legislature,”

9



10
they “adopted provisions intended to minimize the 
possibility of state interference with federal 
elections”)). Examples from recent years as well as 
the post-civil war period confirm both the breadth of 
Congress’ authority under the Elections Clause and 
the paramount role of Congress in determining when 
federal intervention in elections procedures is 
necessary.

In Foster v. Love, the Court validated Congress’ 
authority to preempt a Louisiana open primary 
statutory scheme that effectively changed the day on 
which candidates for federal office were elected. 522 
U.S. at 69. The Court recognized that Congress, in 
selecting a single election day, was concerned about 
the potential “distortion of the voting process 
threatened when the results of an early federal 
election in one State can influence later voting in 
other States.” Id. at 73. The Court invalidated the 
Louisiana law in light of what it called Congress’ 
“comprehensive” authority to implement “safeguards 
which experience shows are necessary in order to 
enforce the fundamental right involved.” Id. at 71 n.2 
(internal quotation marks and citation omitted).

In Ex parte Yarbrough (“The Ku Klux Cases”), the 
Court upheld an act of Congress criminalizing voter 
intimidation and violence. 110 U.S. at 667. The act 
served as the basis for prosecuting a group of eight 
men in Georgia for threatening, intimidating, and 
beating Berry Saunders because Saunders, an 
African American, had voted in a federal election. 
The Court upheld the law as a valid exercise of 
Congress’ power under the Elections Clause, finding 
additional support in the Fifteenth Amendment. Id. 
at 664. The Court pointed to Congress’ earlier 
abolishment of at-large House elections because such 
elections “worked injustice to other states which did



11
not adopt that system, and gave an undue 
preponderance of power to the political party which 
ha[s] a majority of votes in the state, however small.” 
Id. at 660-61.

The Court further explained that Congress must 
have the power to prevent corruption in its own 
elections. “Will it be denied that it is in the power of 
[Congress] to provide laws for the proper conduct of 
those elections? . . . Can it be doubted that [C]ongress 
can, by law, protect the act of voting, the place where 
it is done, and the man who votes from personal 
violence or intimidation, and the election itself from 
corruption or fraud?” Id. at 661. If the federal 
government “has not this power,” the Court reasoned, 
“it is left helpless before the two great natural and 
historical enemies of all republics, open violence and 
insidious corruption.” Id. at 658.

Congress relied on the Elections Clause to enact the 
National Voter Registration Act of 1993 (“NVRA”), 42 
U.S.C. § 1973gg. See Daniel P. Tokaji, Intent and Its 
Alternatives: Defending the New Voting Rights Act, 58 
Ala. L. Rev. 349, 366 (2006-07). The NVRA is an act 
“designed to make it easier to register to vote in 
federal elections” which “intrudes deeply into the 
operation of state government.” Ass’n of Cmty. Orgs. 
for Reform Now v. Edgar, 56 F.3d 791, 792-93 (7th 
Cir. 1995); see also Ass’n of Cmty. Orgs. for Reform 
Now v. Miller, 129 F.3d 833, 838 (6th Cir. 1997); 
Voting Rights Coal. v. Wilson, 60 F.3d 1411, 1413 
(9th Cir. 1995). Congress felt it prudent to require 
states to expand the ways that eligible persons could 
register to vote. 42 U.S.C. § 1973gg-2. The NVRA 
was seen as a means “to reinforce the right of 
qualified citizens to vote by reducing the restrictive 
nature of voter registration requirements.” Ass’n of 
Cmty. Orgs. for Reform Now, 129 F.3d at 835. All



12
appeals courts that have considered the NVRA (the 
Sixth, Seventh and Ninth Circuits, cited above) have 
upheld it as a matter appropriate for Congress’ 
judgment.

The fundamental purpose advanced by the 
Elections Clause—protection of the integrity of 
federal elections—has led this Court to give its text a 
broad construction. This Court has interpreted the 
Elections Clause to give Congress authority to 
regulate state laws affecting even those steps in the 
election of federal offices not explicitly mentioned in 
the text of the clause. For example, this Court has 
recognized that Congress’ authority under the 
Elections Clause includes the drawing of district 
boundaries. See Vieth v. Jubelirer, 541 U.S. 267, 275 
(2004) (Scalia, J., plurality) (“Article 1, §4, while 
leaving in state legislatures the initial power to draw 
districts for federal elections, permitted Congress to 
‘make or alter’ those districts if it wished.”). This 
Court also has held that “the authority of Congress, 
given by § 4, includes the authority to regulate 
primary elections when . . . they are a step in the 
exercise by the people of their choice of 
representatives in Congress.” Classic, 313 U.S. at 
317. This Court has interpreted the scope of the 
phrase “times, places, and manner of holding 
elections” to include a broad range of activities, 
including “notices, registration, supervision of voting, 
protection of voters, prevention of fraud and corrupt 
practices, counting of votes, duties of inspectors and 
canvassers, and making and publication of election 
returns,” Smiley v. Holm, 285 U.S. 355, 366-67 
(1932). Congress may “enact . . . numerous 
requirements as to procedure and safeguards which 
experience shows are necessary in order to enforce



the fundamental right involved.” Id. Congress’ power 
under the Elections Clause is broad indeed.

Further, Congress’ Elections Clause power enjoys 
the added force of the Necessary and Proper Clause. 
That “provision leaves to the Congress the choice of 
means by which its constitutional powers are to be 
carried into execution.” Classic, 313 U.S. at 320. 
Accordingly, Congress has available to it “all means 
which are appropriate,” M ’Culloch, 17 U.S. at 421, to 
meet the legitimate end of “insuring] the freedom 
and integrity of choice” that elections are 
fundamentally about, Classic, 313 U.S. at 319-20. “All 
means” includes the imposition of criminal penalties 
to preserve “the purity [of elections] . . . and the 
rights of citizens to vote . . . peaceably and without 
molestation.” Ex parte Siebold, 100 U.S. at 382 
(upholding statutes criminalizing an election officer’s 
neglect or failure to perform her duties).

In sum, the breadth of Congress’ authority over 
election law is commensurate with the stakes. The 
integrity of the federal government itself depends in 
no small measure on the integrity of the elections of 
those who serve as its legislators. This Court has 
long acknowledged the importance of Congress’ 
Elections Clause power, and consequently provided 
Congress broad leeway to exercise it. It is up to 
Congress, finally, to determine when state laws 
concerning federal elections should be modified.

B. Congress Enacted Section 5 Of The 
Voting Rights Act Pursuant To Its Broad 
Elections Clause Power.

The Voting Rights Act is an exercise of 
Congressional judgment about when state election 
laws concerning federal elections should be modified. 
From its inception, Section 5 of the VRA has been

13



considered by Congress to have been enacted 
pursuant to its Elections Clause power. Tokaji, supra, 
at 365. To be sure, Congress was conscious of its 
authority under the Fourteenth and Fifteenth 
Amendments, but, as the House Report indicates, 
“[t]he bill... is also designed to enforce... article 1, 
section 4” of the Constitution. See H.R. R e p . N o . 89- 
439 (1965); Voting Rights Act of 1965, Pub. L. No. 89- 
110, 79 Stat. 437 (“To enforce the fifteenth
amendment to the Constitution of the United States, 
and for other purposes.”); see also The Continuing 
Need for Section 5 Pre-clearance: Hearing Before the 
S. Comm, on the Judiciary, 109th Congress 5 (2006) 
(testimony of Professor Pamela Karlan), available at 
http ://www.gpo. gov/fdsys/pkg/CHRG- 
109shrg28753/pdfiCHRG-109shrg28753.pdf
(Elections Clause gives Congress “absolutely plenary 
power over any election in which Federal officials are 
selected,” meaning that “there is no federalism 
concern”) (citing Vieth v. Jubelirer for the proposition 
that “there are cases where there is a 14th 
Amendment violation that the courts cannot alone 
deal with because there is not a manageable judicial 
standard... [and the Elections Clause empowers 
Congress to deal with such issues]”).

The pre-clearance requirement for state regulation 
of federal elections is comfortably within the scope of 
the “general supervisory power over the whole 
subject” of elections that Congress enjoys under the 
Elections Clause. Ex parte Siebold, 100 U.S. at 387. 
Congress cannot be denied the authority to prevent 
states from manipulating or otherwise corrupting the 
electoral process, to safeguard against racial 
discrimination, improve voter access, and set the 
boundaries of electoral districts. The pre-clearance 
requirement found in Section 5 of the VRA is one of

14

http://www.gpo


those safeguards Congress has the authority to put in 
place.

Among other mechanisms, the Voting Rights Act 
requires federal review of electoral districts to ensure 
that minority voting power is protected. The Voting 
Rights Act, like the NVRA, seeks to prevent the 
implementation of local laws and practices that 
impede the ability of citizens to register for and 
participate in federal elections. This Court and the 
courts of appeals have recognized that the Elections 
Clause gives Congress authority to draw electoral 
districts, to protect voter access, to combat racial 
discrimination and intimidation in voting, and to 
override attempts by state and local legislators and 
other actors to manipulate or corrupt elections. See 
supra p. 9-11. Section 5 of the Voting Rights Act 
invokes each of these recognized powers and falls well 
within Congress’ authority under the Elections 
Clause.

The indisputable purpose of the Voting Rights Act 
is to banish the blight of racial discrimination in 
voting, which has infected the electoral process in 
parts of our country.” South Carolina v. Katzenbach, 
383 U.S. 301, 308 (1966). The broad authority of the 
Elections Clause gives Congress the power to adopt 
the means it deems appropriate to address the 
problems it perceives.4 Having perceived a problem of 
racial discrimination in voting, Congress acted as it 
deemed appropriate. There is no time limit on that

15

4 Of course the power that Congress exercises under the 
Elections Clause must comport with other constitutional 
requirements, such as the Equal Protection Clause. See e.g., 
Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2598 
(2012) (“Even if the taxing power enables Congress to impose a 
tax on not obtaining health insurance, any tax must still comply 
with other requirements in the Constitution.”).



16
action; the validity of legislation adopted pursuant to 
the Elections Clause does not expire. It is for 
Congress to decide when the election law 
requirements it has adopted pursuant to the 
Elections Clause are no longer needed, just as it is for 
Congress to decide when those requirements were 
necessary in the first place. Ex parte Siebold, 100 
U.S. at 384 (Congress’ may exercise its Elections 
Clause power “as and when Congress sees fit to 
exercise it.”)

C. Principles Of State Sovereignty Provide 
No Limit On Congress’ Elections Clause 
Authority.

Our Constitution “split the atom of sovereignty.” 
U.S. Term Limits, 514 U.S. at 838 (Kennedy, J., 
concurring). Both the federal and state governments 
possess spheres of ultimate sovereign authority. 
History is full of difficult cases and heated, even 
bloody, disputes over where to draw the line between 
federal and state sovereign authority. But when it 
comes to the authority over the regulations and 
means for electing federal legislators, there is and 
has never been any doubt: Congress is sovereign.5 
When it acts pursuant to its Elections Clause 
authority, Congress is not intruding on state 
sovereign authority, even when it replaces or alters 
laws that the states, in the first instance, had the 
authority (in fact, obligation) to adopt. State

5 See Franita Tolson, Reinventing Sovereignty?: Federalism as 
a Constraint on the Voting Rights Act, 65 Vand. L. Rev. 1195, 
1207-32 (2012) (explaining that modern judicial conceptions of 
federalism are inapposite to the Elections Clause and that the 
historical background and judicial treatment of the Elections 
Clause demonstrate an absence of state sovereignty in the area 
of elections).



17
sovereignty provides no limit on the authority of 
Congress to act pursuant to the Elections Clause.

The text of the Elections Clause acknowledges that 
the states have the authority to legislate the “times, 
places, and manner of holding elections for Senators 
and Representatives.” U.S. Const, art. I, § 4, cl. 1. But 
the authority to enact legislation regarding federal 
elections is not sovereign authority over the matter. 
This is clear from the text for a variety of reasons.

First, the text of the Elections Clause imposes an 
obligation on the states-—“shall be prescribed”— 
rather than acknowledging a power that the states 
have discretion to exercise. Second, the Elections 
Clause requires this obligation to be fulfilled in a 
particular way. The rules concerning federal elections 
must be prescribed “by the legislature” of each state; 
the legislature may not delegate the authority to the 
state executive. Third, and most important, 
“Congress may at any time by Law make or alter 
such Regulations.” Id. Unlike a sovereign, the states’ 
authority in this area is subject to a higher authority 
that is free to act “at any time,” with no textual limit 
on the reason why that higher authority— Congress— 
may choose to act. Indeed, even the sole exception to 
Congress’ authority set forth in the Elections 
Clause—the place of choosing Senators—reflects the 
view that the States are not sovereign in this area. 
When the Constitution was adopted, the state 
legislatures elected Senators. So this qualification on 
Congress’ sovereign authority merely reflects that 
Congress’ authority was not intended to displace the 
states’ sovereign authority over where their 
legislatures may meet.

What the text strongly suggests, this Court’s 
decisions confirm. As this Court has observed, the 
power to regulate federal elections is expressly



18
provided to Congress and is not reserved to the States 
under the Tenth Amendment. U.S. Term Limits, 514 
U.S. at 804-05; see Foster, 522 U.S. at 72 (holding 
that Congress has the final say over federal 
elections). Furthermore, this Court has interpreted 
the states’ power under the Elections Clause to be 
confined to procedural regulations, Cook, 531 U.S. at 
514 (invalidating a Missouri constitutional 
amendment which attempted to induce members of 
the Missouri congressional delegation to vote for 
congressional term limits), but has not similarly 
limited Congress’ powers derived from the Elections 
Clause. Indeed, “ [t]he Elections Clause . . . delegates 
but limited power over federal elections to the 
States.” Id. at 527 (Kennedy, J., concurring) (citing 
U.S. Term Limits, 514 U.S. at 804). Likewise, the 
Framers understood that the Elections Clause 
reflected Congress’ supreme authority over the 
regulations governing federal elections because that 
was essential to ensure the survival and the 
independence of the federal government. See Franita 
Tolson, Reinventing Sovereignty?: Federalism as a 
Constraint on the Voting Rights Act, 65 Vand. L. Rev. 
1195 (2012).

Alexander Hamilton, writing in Federalist 59, 
characterized the Elections Clause as lodging the 
power over federal elections “primarily in the [states] 
and ultimately in [the federal government].” The 
Federalist No. 59, at 362 (Alexander Hamilton). He 
also observed that the propriety of lodging ultimate 
authority over federal elections in the federal 
government “rests upon the evidence of this plain 
proposition, that every government ought to contain in 
itself the means of its own preservation.” Id. 
(emphasis in original). Federal sovereignty over



19
federal elections was understood to be essential to the 
effectiveness of the federal government itself.

Accordingly, in this area of constitutional law 
states are autonomous; however, they are not 
sovereign. See Tolson, supra, at 1247 (“ [T]he
Elections Clause gives the states strong autonomy 
power over elections and leaves sovereignty with 
Congress.”). It may be prudent for the federal 
government to respect the states’ familiarity with 
local conditions. See The Federalist No. 59, at 363 
(Alexander Hamilton). But there is no obligation to do 
so. Gonzalez, 677 F.3d at 392 (“Because states have 
no reserved authority over the domain of federal 
elections, courts deciding issues raised under the 
Elections Clause need not be concerned with 
preserving a ‘delicate balance’ between competing 
sovereigns.”); Chin, supra, note 1, at 15-16.

Thus, section 5’s federal pre-clearance
requirements—which were intended to ensure that 
state changes in election procedures do not 
undermine the integrity of federal elections by 
weakening voting power on the basis of race—do not 
offend any state’s sovereignty. To the extent a state 
law impacts federal elections, it is not an exercise of 
the state’s sovereignty. It is, rather, an exercise of the 
state’s autonomous responsibility to facilitate federal 
elections. But it is the sovereign authority of the 
federal government to consider whether it believes 
such laws should be replaced or altered. That is how 
Section 5 of the VRA works. And that is what the 
Elections Clause, and the theory and practice of the 
federal government’s sovereignty over the regulations 
for elections of its officials, requires.



20
D. The Elections Clause Power Need Not 

Be Exercised Uniformly, And, In Any 
Event, Section 5 Is Uniform Across The 
Nation.

Petitioner objects to Section 5’s “unequal 
treatment” of the jurisdictions that require pre­
clearance. See Pet. Br. 40. But when viewed as a 
matter of Congress’ Elections Clause power, that 
objection has no force. The Constitution does not 
require Congress to adopt laws pursuant to the 
Elections Clause power that are uniform in effect, 
and it would make no sense to do so. Moreover, to the 
extent some concept of uniformity could be imposed 
on the Elections Clause power, the procedures 
created by Section 5 satisfy it. Those procedures 
apply to every jurisdiction in the United States 
meeting the requirements of its coverage provision. 
That coverage provision is not fixed, but considers 
recent circumstances in determining whether to add 
or subtract jurisdictions from the preclearance 
requirements. Section 5 thus creates a “uniform ruleQ 
for federal elections, binding on the States.” See 
Foster, 522 U.S. at 69 (citing U.S. Term Limits, 514 
U.S. at 832-33). Like the principle of state 
sovereignty, the principle of uniformity in federal 
enactments is no barrier to the continued efficacy of 
Section 5 as an exercise of Congress’ Elections Clause 
power.

Article I specifies certain Congressional actions 
that must apply uniformly. For example, “Congress 
shall have the Power To lay and collect Taxes, Duties, 
Imposts and Excises . . .; but all Duties, Imposts and 
Excises shall be uniform throughout the United 
States.” U.S. Const, art. I, § 8, cl. 1 (emphasis added). 
Likewise, Congress’ power over naturalization and on 
the subject of bankruptcy are expressly required to be



21
“uniform.” Id. § 8, cl. 4. But not all Congressional 
power is required to be exercised uniformly 
throughout the states. Indeed, it would make no 
sense to have required Congress to “uniformly” adopt 
post roads and post offices, id. § 8, cl. 7, or to 
uniformly “constitute inferior tribunals to” this Court, 
id. § 8, cl. 9. Local circumstances must be considered 
in determining whether to build post roads and post 
offices, or to constitute lower courts. The Framers did 
not require Congress to legislate blind to those 
circumstances.

Congress’ Elections Clause power also allows 
Congress to consider local circumstances. It contains 
no express uniformity requirement. To the contrary, 
the text acknowledges that uniformity is not required 
because it makes no sense given the combination of 
state autonomy to enact regulations in the first 
instance and Congress’ supervisory sovereign power. 
The Elections Clause gives Congress the power not 
only to “make” federal election law. The states have 
the obligation to make their own laws in the first 
instance, and Congress is empowered to “alter such 
regulations” “at any time by law.” U.S. Const, art. I, § 
4. That is, the Elections Clause contemplates that 
Congress might choose to adopt a federal law 
targeting a specific law in a specific state. That is one 
way Congress can “alter” the “regulations” of a state 
that Congress has concluded undermine the integrity 
of elections. Imposing a uniformity requirement on 
Congress’ actions under the Elections Clause would 
place an ill-suited constraint on the broad 
supervisory authority Congress was given.

Given the nature of Congress’ sovereign, 
supervisory authority in this area, Section 5 is 
“uniform” in the only way that makes sense. Even 
where uniformity is expressly required by the



22
Constitution, Congress may enact uniform laws that 
operate differently in different states because of local 
laws or conditions. “Congress cannot accommodate its 
legislation to the conflicting or dissimilar laws of the 
several states, nor control the diverse conditions to be 
found in the various states, which necessarily work 
unlike results from the enforcement of the same 
[law.] All that the Constitution . . . requires is that 
the law shall be uniform in the sense that by its 
provisions the rule of liability shall be alike in all 
parts of the United States.” Mellon, 273 U.S. at 17 
(upholding a federal tax law); see also Stellwagen v. 
Clum, 245 U.S. 605, 613 (1918) (federal bankruptcy 
law may recognize specific state laws, although such 
recognition may lead to different results in different 
states. . . [although] the operation of the Act is not 
alike in all the states.”) (citing Hanover Nat’l Bank v. 
Moyses, 186 U.S. 181, 188, 189, 190 (1902)). Of 
particular note, “the uniformity provision does not 
deny Congress power to take into account differences 
that exist between different parts of the country, and 
to fashion legislation to resolve geographically 
isolated problems.” Blanchette v. Conn. Gen. Ins. 
Corps., 419 U.S. 102, 159 (1974); Edye v. Robertson, 
112 U.S. 580 (1884) (“Perfect uniformity and perfect 
equality of taxation, in all the aspects in which the 
human mind can view it, is a baseless dream, as this 
court has said more than once. . . . Here there is 
substantial uniformity within the meaning and 
purpose of the constitution.”). Put simply, no operable 
concept of uniformity prohibits Congress from 
regulating conduct that is known to occur only in 
certain jurisdictions. A textually rooted concept of 
uniformity requires only that Congress regulate 
conduct uniformly “in every state where it is found.” 
Fernandez v. Wiener, 326 U.S. 340, 361 (1945) 
(emphasis added).



23
The Elections Clause clearly contemplates a 

patchwork of regulations governing federal elections 
that varies from state to state. It obligates “each 
state” to enact laws governing the elections of federal 
officials. And as Hamilton observed, the Constitution 
expects that “each State” will take its local conditions 
and circumstances into account in adopting its 
regulations. The Federalist No. 59 (Alexander 
Hamilton). Under this regime, Congress’ power to 
“alter” the regulations adopted by the varying states 
will obviously have different effects on different state 
election law regimes. Even when Congress prescribes 
nationally applicable rules, the various state election 
laws will conflict to varying degrees with those 
national rules. The differential effects are not a 
failure of uniformity, but rather the inevitable 
consequence of the variation in the background 
against which Congress acts.

Section 5’s coverage provision permissibly 
addresses the national problem of voter 
discrimination, wherever it may be found. Section 5’s 
requirements apply to all states with a history or 
practice of voter discrimination. See 42 U.S.C. 
§ 1973b. And the list of jurisdictions is not static. If 
voter discrimination is found in any “State or political 
subdivision,” the offending jurisdiction can be 
subjected to Section 5’s pre-clearance requirements 
under the “bail-in” provision. Id. § 1973a(c). 
Furthermore, jurisdictions may “bail-out” of the pre­
clearance provision by establishing that they have 
had a clean voting rights record for ten years. See id. 
§ 1973b.6 These rules apply to every jurisdiction in

6 In Virginia alone, for instance, thirty one jurisdictions have 
already bailed-out successfully. See U.S. Dep’t of Justice, 
Section 4 of the Voting Rights Act,



24
the United States. Petitioner’s objections regarding 
“unequal treatment” stem from the unequal history 
that Congress plainly has the authority to address. 
Nothing in an operable concept of “uniformity” 
requires Congress to pretend that history did not 
exist, or that present circumstances do not justify 
continued coverage. Nor is there any authority in the 
text or theory behind the Elections Clause for this 
Court to place a time limit on Congress’ judgment 
regarding the best way to deal with that history.
II. CONGRESS’ ELECTIONS CLAUSE POWER 

DEFEATS PETITIONER’S FACIAL 
CHALLENGE.

Petitioner chose to bring a facial challenge to 
Section 5. Compl. 1 (“This is an action for a 
declaratory judgment that Section 4(b) . . . and 
Section 5 . . .  of the Voting Rights Act (“VRA”) . . . are 
facially unconstitutional.”). That choice means that 
the Elections Clause power can and should play a 
dispositive role in this case. To affirm the judgment 
below, this Court need conclude no more than that 
Section 5 of the VRA is a valid exercise of Congress’ 
Elections Clause power.

Facial challenges are categorically “disfavored” by 
this Court. See Wash. State Grange, 552 U.S. at 450. 
Among other reasons, facial challenges are disfavored 
because they “run contrary to the fundamental 
principle of judicial restraint that courts should... 
[not] ‘formulate a rule of constitutional law broader 
than is required by the precise facts to which it is to 
be applied.’” Id. at 450 (quoting Ashwander v. TVA, 
297 U.S. 288, 347 (1936) (Brandeis, J., concurring) 
(quoting in turn Liverpool, N.Y. & Phila. S.S. Co. v.

http://www.justice.gov/crt/about/vot/misc/sec_4.php#bailout (last 
visited Jan. 22, 2013).

http://www.justice.gov/crt/about/vot/misc/sec_4.php%23bailout


25
Comm’rs of Emigration, 113 U. S. 33, 39 (1885))). 
Reluctance to strike down laws on their face reflects a 
healthy judicial respect for the will of the people. See 
id.; see also Ayotte v. Planned Parenthood of N. New 
Eng., 546 U.S. 320, 329 (2006) (rejecting facial 
challenge, in part, because “ [a] ruling of 
unconstitutionality frustrates the intent of the 
elected representatives of the people.”) (internal 
quotation marks omitted). This Court nullifies the 
will of the people only when the Constitution so 
requires.

Facial challenges are difficult to sustain precisely 
because of the risks they pose. Federal statutes can 
have broad applications and draw their authority 
from a variety of sources. Accordingly, this Court has 
required a broad showing to sustain a facial 
challenge. Shelby County’s facial challenge means 
that petitioner cannot prevail merely by 
demonstrating (even if it could) that Section 5 is 
unconstitutional when applied to a specific 
redistricting scheme or to some other “conceivable set 
of circumstances.” See Salerno, 481 U.S. at 745. 
Neither is it sufficient for Shelby County to argue 
that some provisions of the Act might violate the 
Constitution. See id. at 745 n.3. Shelby County must 
demonstrate that the VRA is void of all “plainly 
legitimate sweep.” Stevens, 130 S. Ct. at 1587 
(internal quotation marks omitted) (quoting 
Washington v. Glucksberg, 521 U.S. 702, 740 n.7 
(1997) (Stevens, J., concurring in judgments)). For 
this reason, a facial challenge is “the most difficult 
challenge to mount successfully.” Salerno, 481 U.S. at 
745.

The Elections Clause power of Congress, by itself, 
defeats petitioner’s facial challenge. Applications of 
Section 5 to the mechanisms and processes of federal



26
elections are constitutional under the Elections 
Clause.7 For example, changes in district lines for 
federal elections or changes in voter registration 
rules clearly fall within the limits of Congress’ power 
to ensure the integrity of federal elections. In general, 
as described in Part I above, this Court has affirmed 
Congress’ authority under the Elections Clause to 
regulate the type of misconduct Section 5 is meant to 
address. See Ex parte Yarbrough, 110 U.S. at 661 
(upholding an act of Congress prohibiting voter 
intimidation and violence).

Petitioner’s facial challenge means this case does 
not require this Court to consider whether Congress 
has authority under the Fourteenth and Fifteenth 
Amendments to require pre-clearance for changes in 
state election laws that concern only state or local 
elections. Whatever the answer to that question, 
petitioner’s facial challenge fails in light of the 
Elections Clause power. See e.g. Katzenbach v. 
Morgan, 384 U.S. 641, 646 n.5 (1966) (upholding part 
of the VRA on Fourteenth Amendment grounds, 
making it “unnecessary... to consider whether § 4(e) 
could be sustained as an exercise of power under 
[other clauses of the Constitution]”). This Court 
traditionally does not reach out to decide issues of 
Congress’ power beyond that which is necessary to 
decide the case before it. See Nw. Austin, 557 U.S. at 
205. Petitioner’s facial challenge provides this Court 
an opportunity to reaffirm the broad power of 
Congress over the rules affecting federal elections.

7 This Court has previously evaluated exercises of 
congressional power on an as-applied basis. See, e.g., Tennessee 
v. Lane, 541 U.S. 509, 531 (2004) (“Because we find that Title II 
unquestionably is valid § 5 legislation as it applies to the class of 
cases impheating the accessibility of judicial services, we need 
go no further.”).



This Court should take that opportunity, and only 
that opportunity, as no more is necessary to decide 
this case.

27

CONCLUSION
For the foregoing reasons, the decision of the 

United States Court of Appeals for the District of 
Columbia Circuit should be affirmed.

Respectfully submitted,

Je f f r e y  T . G r e e n *
R o b e r t  N . H o c h m a n  
Sa r a h  O ’R o u r k e  S c h r u p  
Ju s t in  A. B e n s o n  
W il l ia m  M . D o o l it t l e  
N o r t h w e s t e r n  U n i v . 
S u p r e m e  C o u r t  P r a c t ic u m  
375 East Chicago Avenue 
Chicago, IL 60611 
(312) 503-8576 
jgreen@sidley.com

Counsel for Amici Curiae 
February 1, 2013 * Counsel of Record

mailto:jgreen@sidley.com




SlDLEY
SIDLEY AUSTIN il p  

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FOUNDED 1866

CERTIFICATE OF SERVICE

No. 12-96

Shelby County, Alabama.

Petitioner,

v.

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

Respondents.

I, Jeffrey T. Green, do hereby certify that, on this first day of February, I 
caused three copies of the amicus brief in the foregoing case to be served by fwut 
qlaco medl,~ptifltagc prepaid, on the following parties:

6 0 U . 4 ;

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

Donald B. Verrilli 
Solicitor General
United States Department of Justice 
950 Pennsylvania Ave., N.W. 
Washington, DC 20530-0001

Debo P. Adegbile
NAACP Legal Defense & Educational 
Fund, Inc.
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Laughlin McDonald 
American Civil Liberties Union 
Foundation
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Additional Party On Next Page

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The Honorable William K. Suter 
November 19, 2008 
Page 3

Jon M. Greenbaum
Lawyers' Committee for Civil Rights
Under Law
1401 New York Avenue, NW 
Suite 400
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-StBfcEYAu s t i n  l l p  
1501 K Street, N.W. 
Washington, D.C. 20005



RULE 33.1(h) 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, Jeffrey T. Green, certify that 
the amicus brief in the foregoing case contains 7,094 words, excluding the parts of 
the document 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 February 1, 2013.

1501 K Street, N.W. 
Washington, D.C. 20005 
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February 1, 2013