Cross of Malta Awarded to Thurgood Marshall, Philadelphia Cotillion Society, ca. 1955 - 5 of 17

    No. 12-96

Sn^fje

Supreme Court of tfje Mntteb States?
---------------- +----------------

SH ELBY COUNTY, Alabama,

Petitioner,
v.

ERIC H. HOLDER, Jr., Attorney General, et al.,

Respondents.

■4

On Writ Of Certiorari To The 
United States Court Of Appeals 
For The District Of Columbia

4

BRIEF OF ALABAMA LEGISLATIVE BLACK 
CAUCUS AND ALABAMA ASSOCIATION OF BLACK 

COUNTY OFFICIALS, AS AMICI CURIAE 
IN SUPPORT OF RESPONDENTS

4

Jam es U. Blacksher  
Counsel of Record 

RO. Box 636
Birmingham, Alabama 35201  
(205) 591-7238  
jblacksher@ns. sympatieo. ca

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964 
OR CALL COLLECT (402) 342-2831



1

TABLE OF AUTHORITIES....................................  ii
INTEREST OF AMICI CURIAE............................  1
SUMMARY OF ARGUMENT................................. 2
ARGUMENT..............................................................  3

I. For the First Time in History, in 2006 
African-American Representatives from 
All Nine Covered Southern States Partic­
ipated in Passage of a Voting Rights Act, 
and the Product of Their Negotiations Is 
Entitled to Great Respect............................  3

II. The Historical Context of This Case 
Weighs Heavily in Favor of Rejecting 
Alabama’s States’ Rights Objections To 
Congress’ Efforts to Defend African 
Americans’ Right To Vote.............................  7

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

TABLE OF CONTENTS
Page



11

Ca s e s :

Baker v. Carr, 369 U.S. 186 (1962)...............................5
City o f Mobile v. Bolden, 446 U.S. 55 (1980).............11
Civil Rights Cases, 109 U.S. 3 (1883)...........................9
Dillard v. Chilton County Comm’n, 495 F.3d 

1324 (11th Cir. 2007)................................................. 11
Dred Scott v. Sandford, 60 U.S. 393 (1857).................9
Fletcher v. Peck, 10 U.S. 87 (1810)..........................8, 13
Giles v. Harris, 189 U.S. 475 (1903).................... 10, 12
Giles v. Teasley, 193 U.S. 146 (1904).......................... 10
Jones v. Montague, 194 U.S. 147 (1904).................... 10
Lynch v. Alabama, ___F.Supp.2d ____, CA No.

5:08-cv-00450-CLS (N.D. Ala., Nov. 7, 2011), 
appeal pending, Nos. 11-15464-BB & 11- 
15789 (11th Cir.)...........................................................6

Mills v. Green, 159 U.S. 651 (1895).............................10
Minor v. Happersett, 88 U.S. 162 (1874).................... 9
Plessy v. Ferguson, 163 U.S. 537 (1896).................... 10
Presley v. Etowah County, 502 U.S. 491 (1992)........ 11
Shelby County v. Holder, 811 F.Supp.2d 424 (D.

D.C. 2011), a ff’d, 679 F.3d 848 (D.C. Cir.
2012) ................ :.......................................................3, 4

Slaughter-House Cases, 83 U.S. 36 (1873)..................9
Williams v. Mississippi, 170 U.S. 213 (1898).............10

TABLE OF AUTHORITIES
Page



I l l

C o n st it u t io n a l  a n d  S tatu to r y  P r o v isio n s :

1965 Voting Rights Act, Pub. L. No. 89-110, 79 
Stat. 437 ...................................................................... 10

1975 Voting Rights Act. Pub. L. No. 94-73, Title 
I, § 101, Title II, §§ 201-203, 206, Aug. 6,
1975, 89 Stat. 400-402.................................................4

1982 Voting Rights Act, Pub. L. No. 97-205, at 
3, 96 Stat. 131.............................................................11

Alabama Constitution of 1901................................ 1, 10
Articles of Cession and Agreement, April 24,

1802, Territorial Papers, V ......................................... 9
Civil Rights Act of 1866, 14 Stat. 27............................. 9
Fannie Lou Hamer, Rosa Parks, and Coretta 

Scott King Voting Rights Act Reauthoriza­
tion and Amendments Act of 2006, 120 Stat.
577..................................................................................4

Northwest Ordinance of 1787, 1 Stat. 5 0 ................8, 9
U.S. Constitution, Amendment XIII........................... 10
U.S. Constitution, Amendment X IV .................. passim
U.S. Constitution, Amendment XV.....................passim
U.S. Constitution, Article IV, Section 3 ...................... 8
Voting Rights Act, § 2, 42 U.S.C. § 1973..................... 11
Voting Rights Act, § 4(b), 42 U.S.C. § 1973b(b) ...2, 3, 4, 7
Voting Rights Act, § 5, 42 U.S.C. § 1973c......... passim

TABLE OF AUTHORITIES -  Continued
Page



IV

TABLE OF AUTHORITIES -  Continued
Page

O th e r  M a te r ia l s :

Alexander Tsesis, Undermining Inalienable 
Rights: From Dred Scott to the Rehnquist 
Court, 39 A r iz . S t . L.J. 1179 (2007)......................... 9

Don E. Fehrenbacher, The Slave Republic
(2001) ..............................................................................................8

James Blacksher, Edward Still et al., Voting 
Rights in Alabama: 1982-2006, 17 S. Ca l .
R e v . L. & Soc. Ju s t . 249 (2008).................................1

Robert J. Kaczorowski, Congress’s Power to 
Enforce Fourteenth Amendment Rights: Les­
sons from Federal Remedies the Framers 
Enacted, 42 H a r v . J. ON L e g is . 187 (2005)............. 9

Sean Wilentz, The Rise o f American Democracy 
(2005).............................................................................8



1

INTEREST OF AMICI CURIAE1

Amici Curiae are organizations of African- 
American state and county elected officials, whose 
members are engaged in the day-to-day struggles to 
advance the interests of their constituents, particu­
larly black Alabamians, in a social, political and legal 
environment that is still dominated by vestiges of 
official racial discrimination and still is governed by 
the 1901 Alabama Constitution that was adopted for 
the purpose of disfranchising black citizens and 
preserving white supremacy. Amici are certain that a 
decision by this Court ending Alabama’s coverage 
under Section 5 of the Voting Rights Act would open 
the door for state laws that would suppress the right 
to vote of African Americans and Latinos and repeal 
the remedies black Alabamians obtained through 
federal litigation that provide them equal opportuni­
ties to elect members of their state, county and mu­
nicipal governments. See James Blacksher, Edward 
Still et al., Voting Rights in Alabama: 1982-2006, 17 
S. Ca l . R e v . L. & Soc. J u s t . 249 (2008).

-------------- ♦--------------

1 No counsel for a party authored this brief in whole or in 
part, nor did any person or entity, other than amicus or its 
counsel, make a monetary contribution intended to fund the 
preparation or submission of this brief. This brief is submitted 
pursuant to the blanket consent letters from all parties, on file 
with this Court.



2

Amid the blizzard of factual and legal arguments 
justifying enactment of the 2006 extension of Sections 
4 and 5 of the Voting Rights Act that are set out in 
the record before Congress and in the courts below, 
amici African-American elected officials in Alabama, 
wish to emphasize two important points:

(1) The 2006 Voting Rights Act was the first in 
history to be enacted with the participation of African- 
American members of Congress elected from all nine 
of the covered states in the South. The terms they 
helped negotiate involve the most fundamental right 
in American democracy, the right to vote, and their 
direct role in the Act’s passage arguably came as close 
to inclusion of African Americans in an agreement of 
constitutional stature as has yet to occur in our 
history. For a nation founded on the institution of 
slavery, this grand compromise between the descen­
dants of slaves and all other Americans is entitled to 
the greatest respect.

(2) There is a long history of decisions by this 
Court that disregarded the ability of the former 
Confederate states to suppress the votes of freedmen 
and their descendants. These decisions frustrated 
efforts of Congress to advance African Americans’ 
rights to freedom and equality over the sovereignty 
claims of the Southern states. This dubious legacy 
should cause the Court to be especially cautious in 
overruling the judgment of Congress that the prophy­
lactic measures in the 2006 Voting Rights Act are still

SUMMARY OF ARGUMENT



3

appropriate to enforce the Fourteenth and Fifteenth 
Amendment rights of African Americans. This Court 
is ill-equipped to assess the realities of continuing 
vestiges of de jure voting discrimination in Alabama 
and the rest of the South.

---------------- ♦----------------

ARGUMENT

I. For the First Time in History, in 2006 African- 
American Representatives from All Nine 
Covered Southern States Participated in 
Passage of a Voting Rights Act, and the 
Product of Their Negotiations Is Entitled 
to Great Respect.

The coverage formula of Section 4(b) of the Voting 
Rights Act was designed as a proxy for the Southern 
states who had defended slavery, seceded from the 
Union, “redeemed” white state governments from the 
“black rule” of Reconstruction, mandated segregation 
of the races, disfranchised their black citizens, con­
ducted all-white Democratic primary elections, and 
resisted federally ordered desegregation and en­
forcement of voting rights. Shelby County v. Holder, 
811 F.Supp.2d 424, 432, 438 (D. D.C. 2011), a ff’d, 679 
F.3d 848, 855 (D.C. Cir. 2012) (The formula “served 
only as a proxy for identifying those ‘jurisdictions 
that had a long, open, and notorious history of disen­
franchising minority citizens and diluting their voting 
strength whenever they did manage to register and 
cast ballots.’ ”) (citations omitted). The formula oper­
ated as intended to include all or parts of seven of the



4

eleven former Confederate States of America, includ­
ing Alabama. Id. Two other former Confederate 
states, Texas and Florida, are covered by the lan­
guage provisions of the 1975 Voting Rights Act.

For the first time in the history of the United 
States, African-American members of Congress 
elected from all nine covered Southern states partici­
pated in the negotiations leading to passage of a 
federal Voting Rights Act, the Fannie Lou Hamer, 
Rosa Parks, and Coretta Scott King Voting Rights Act 
Reauthorization and Amendments Act of 2006, 120 
Stat. 577.2 The only African Americans elected to the 
House of Representatives from a covered Southern 
state when Congress previously extended Section 5 of 
the Voting Rights Act were Barbara Jordan of Texas 
and Andrew Young of Georgia in 1975 and Mickey 
Leland of Texas in 1982.3 These circumstances show 
that anything approaching full participation by 
Southern blacks in our state and national legislatures 
is very recent history, not something that happened

Artur Davis, Alabama; Corrine Brown, Alcee Hastings, 
and Kendrick B. Meek, Florida; Sanford D. Bishop, Jr., John 
Lewis, Cynthia Ann McKinney, and David Scott, Georgia; 
William J. Jefferson, Louisiana; Bennie Thompson, Mississippi; 
G.K. Butterfield and Melvin L. Watt, North Carolina; James E. 
Clyburn, South Carolina; A1 Green, Sheila Jackson Lee, and 
Eddie Bernice Johnson, Texas, and Robert C. Scott, Virginia 
The one African-American Senator in 2006. Barack Obama, was 
from Illinois.

In 1982. another African American, Harold Ford, repre­
sented lennessee, one of the two former Confederate states not 
covered by Section -Uhl



5

in the distant past. They give unique, heightened 
weight to the argument that the issue in this appeal, 
whether in enacting the 2006 Voting Rights Act 
Congress properly exercised its express enforcement 
powers under Section 5 of the Fourteenth Amend­
ment and Section 2 of the Fifteenth Amendment, has 
all the elements of the kind of political question this 
Court has said it should avoid deciding. Especially 
relevant here are a textually demonstrable constitu­
tional commitment of the issue to Congress, a lack of 
judicially discoverable and manageable standards for 
resolving it, and an unusual need for unquestioning 
adherence to a political decision already made. Baker 
v. Carr, 369 U.S. 186, 217 (1962). Speaking for Afri­
can-American citizens of Alabama in particular, these 
amicus parties wish to emphasize the importance of 
giving due respect, at last, to the political voices of 
representatives sent to Congress by African Ameri­
cans in the South.

The special significance of the role played by 
Congressional representatives of black Southerners 
in the passage of the 2006 Voting Rights Act is appar­
ent when it is viewed in the light of three centuries of 
slavery and over a century of segregation, disfran­
chisement and the many other policies of state- 
sponsored white supremacy. It is not an exaggeration 
to say that this was the first time in the history of the 
United States when representatives of fully enfran­
chised descendants of North American slaves were 
not excluded, and actually sat at the table, when 
Congress took up legislation of such constitutional 
stature. The position they advanced successfully in



6

this national negotiation is that the vestiges of so 
many generations of official voting discrimination in 
the covered jurisdictions of the South have not been 
eliminated to the full extent practicable.

The government of Alabama opposed the 2006 
extension of Section 5 of the Voting Rights Act and 
our state’s continued inclusion in the 1965 coverage 
formula. It conceded, as it does in its amicus brief in 
this case, that “Alabama still grapples with race 
relations issues,” but it argued that the effects of its 
racist past have “faded away,” and that the issues of 
voting discrimination in Alabama “are the same kind 
of issues every State currently is endeavoring to 
solve.” Alabama Amicus Brief at 1, 2. We and our 
representatives in Congress vigorously disagreed, 
pointing out that the culture of white supremacy does 
not die so easily.

Alabama still clings, for example, to racially 
discriminatory provisions in its white supremacist 
Constitution of 1901, as a federal court recently
concluded. Lynch v. Alabam a,___F.Supp.2d____, CA
No. 5:08-cv-00450-CLS (N.D. Ala., Nov. 7, 2011), slip 
op. at 775, appeal pending, Nos. 11-15464-BB & 11- 
15789 (11th Cir.). The Fourteenth and Fifteenth 
Amendments gave Congress the power to eliminate 
voting discrimination, not just to make conditions 
“somewhat better.” The constitutional power that “We 
the People” gave Congress in 1868 and 1870 does not 
vanish just because the job is partly done. Absent the 
protection of Section 5 of the Voting Rights Act, we 
have no doubt that the efforts of majority-white state



7

and local governments to isolate and minimize the 
political influence of black Alabamians will advance 
rapidly and far outstrip our resources to combat 
them.

The point here is that black Southerners and the 
members of Congress they elected were able to con­
vince the vast majority of other members of Congress 
that the need for the exercise of power granted Con­
gress by Section 5 of the Fourteenth Amendment and 
Section 2 of the Fifteenth Amendment still outweighs 
the sovereignty objections of the Southern states that 
the Reconstruction Amendments were intended to 
overcome. Attempts by others to broaden Section 4(b) 
coverage to include jurisdictions elsewhere in the 
United States that have experienced voting discrimi­
nation failed. But our representatives successfully 
advocated for continued coverage of Alabama and 
other Southern states where voting discrimination 
against African Americans is most deeply rooted in 
our history and political culture. That legislative 
compromise is entitled to great respect.

II. The Historical Context of This Case Weighs 
Heavily in Favor of Rejecting Alabama’s 
States’ Rights Objections To Congress’ Ef­
forts To Defend African Americans’ Right to 
Vote.

Section 5 of the Voting Rights Act is necessary 
because, throughout history, Southern states’ claims 
of sovereignty have repeatedly stymied even the most 
minimal congressional efforts to protect the rights of



8

African Americans to freedom and equal rights. The 
story begins in 1810, nine years before Alabama 
became a state, when this Court affirmed an agree­
ment between the slaveholding Jefferson Administra­
tion and the State of Georgia to extend slavery into 
the territory Georgia ceded to the United States that 
would become the states of Alabama and Mississippi. 
The question of Congress’ power under Article IV, 
Section 3, of the Constitution either to extend or to 
prohibit slavery in territories belonging to the United 
States was a hotly contested political issue.4 In 
Fletcher v. Peck, 10 U.S. 87 (1810), Chief Justice John 
Marshall affirmed sub silentio Congress’ power to 
extend slavery into its territories. His reason for 
deferring to Congress’ decision presaged the political 
question doctrine:

The question whether the vacant lands with­
in the United States became a joint property 
or belonged to the separate States was a 
momentous question which at one time 
threatened to shake the American Confeder­
acy to its foundation. This important and 
dangerous contest has been compromised, 
and the compromise is not now to be 
disturbed.

10 U.S. at 142 (emphasis added). That compromise 
extended to the western territories ceded by Georgia 
all the rights and privileges of the 1787 Northwest

4 E.g., see Don E. Fehrenbacher, The Slave Republic 258-59 
(2001); Sean Wilentz, The Rise o f American Democracy 222-31 
(2005).



9

Ordinance, “that article only excepted which forbids 
slavery.” Articles of Cession and Agreement, April 24, 
1802, Te? ritorial Papers, V, 142-46. Five decades later, 
this Court struck down the Missouri Compromise and 
held that Congress lacked the power to prohibit 
slavery in its territories. Dred Scott v. Sandford 60 
U.S. 393 (1857).

Congress added the enforcement sections of the 
Fourteenth and Fifteenth Amendments directly in 
response to this Court’s decision in Dred Scott.5 But in 
the years following passage of the Reconstruction 
Amendments, this Court undermined much of Con­
gress’ efforts, reaffirming, notwithstanding Section 1 
of the Fourteenth Amendment, Dred Scott’s holding 
that the power to determine the privileges, immuni­
ties, and civil rights of American citizens, including 
the right to vote, still belonged to the states. Slaughter- 
House Cases, 83 U.S. 36 (1873); Minor v. Happersett, 
88 U.S. 162 (1874); Civil Rights Cases, 109 U S  3 
(1883).

0 E.g., Robert J. Kaczorowski, Congress’s Power to Enforce 
Fourteenth Amendment Rights: Lessons from Federal Remedies 
the Framers Enacted, 42 Harv. J. on Legis. 187, 263 (2005) 
(“[T]he framers of the Fourteenth Amendment . . . understood 
the Fourteenth Amendment, at a minimum, as a delegation to 
Congress of the plenary power to define and enforce in the 
federal courts the substantive rights of U.S. citizens that they 
had just exercised in enacting the Civil Rights Act of 1866.”) 
(cited in Alexander Tsesis, Undermining Inalienable Rights: 
From Dred Scott to the Rehnquist Court, 39 Ariz St L J 1179 
1235 (2007)).



10

At the turn of the twentieth century, this Court 
held that neither the Thirteenth Amendment nor the 
Fourteenth Amendment prohibited the states from 
segregating the races. Plessy v. Ferguson, 163 U.S. 
537 (1896). Then, notwithstanding the Fourteenth 
and Fifteenth Amendments, it held there was no 
remedy in federal courts for African Americans who 
were disfranchised by the 1901 Alabama Constitu­
tion. Giles v. Harris, 189 U.S. 475 (1903).6 Justice 
Holmes admonished blacks in Alabama and other 
Southern states: “Apart from damages to the individ­
ual, relief from a great political wrong, if done, as 
alleged, by the people of a state and the state itself, 
must be given by them or by the legislative and 
political department of the government of the United 
States.” 189 U.S. at 488.

Six decades later, the Voting Rights Act became 
the modern response to Justice Holmes’ advice. Afri­
can Americans finally obtained some relief from the 
political department of the United States, after many 
of them, including Representative John Lewis, were 
brutally beaten by Alabama police when they at­
tempted to march across the Edmund Pettus Bridge 
in Selma. Enforcement of the Voting Rights Act of 
1965 slowly led to the re-enfranchisement of South­
ern blacks and to the removal of many election struc­
tures that diluted their voting strength.

See also Jones v. Montague, 194 U.S. 147 (1904); Giles v. 
Teasley, 193 U.S. 146 (1904); Williams v. Mississippi, 170 U.S. 
213 (1898); Mills v. Green, 159 U.S. 651 (1895).



11

This Court, however, slowed that progress by 
holding that Section 2 of the Voting Rights Act ex­
tended no rights beyond those prohibited by the 
Fifteenth Amendment, and that states were still free 
to retain old election schemes that denied black 
voters an equal opportunity to elect candidates of 
their choice, unless they could prove that the state 
laws were enacted for an invidious purpose. City of 
Mobile v. Bolden, 446 U.S. 55 (1980). Congress coun­
tered Bolden by including in the 1982 Voting Rights 
Act a results standard for Section 2, 42 U.S.C. § 1973.

However, this Court narrowed the reach of Sec­
tion 5, 42 U.S.C. § 1973c, by ruling that it did not 
prohibit Alabama from denying equal powers to 
officials who had been elected by African Americans. 
Presley v. Etowah County, 502 U.S. 491 (1992). The 
voting rights of black Etowah County citizens were 
not affected, this Court held, when white commis­
sioners voted to give themselves continuing control 
over the road and bridge shops in their respective 
districts, while assigning Lawrence C. “Coach” Pres­
ley, the sole black commissioner, the duty of supervis­
ing the janitorial staff at the courthouse. However 
practices or procedures with respect to voting are 
defined, the Etowah County case illustrates the 
adverse treatment black voters in many Alabama 
jurisdictions can expect when Section 5 restraints on 
white-majority control are lifted altogether. E.g., see 
Dillard v. Chilton County Comm’n, 495 F.3d 1324 
(11th Cir. 2007) (reversing, solely on grounds that the 
white challengers lacked standing, dissolution of a



12

consent decree providing election procedures that 
allow blacks an opportunity to elect a county commis­
sioner of their choice).

Even this abbreviated review of the long history 
of decisions impacting voting rights in Alabama 
shows how this Court has too often disregarded the 
endurance and resiliency of white supremacy and its 
vestiges in our state. A decision by the Court in this 
case granting Alabama’s request to strike down 
Section 5 of the Voting Rights Act and/or its coverage 
formula would once again elevate Alabama’s claims of 
state sovereignty over Congress’ efforts to enforce the 
constitutional rights of African Americans and would 
be more damaging to blacks’ voting rights than any 
other decision since Giles v. Harris.

-------------- 1--------------



13

CONCLUSION

The complex question whether the descendants 
of American slaves are now full partners in constitu­
tional democracy should be decided through political 
discourse between the representatives of African 
Americans and all other American citizens, not 
through judicial fiat. In the words of Chief Justice 
Marshall, “the compromise is not now to be dis­
turbed.” Fletcher v. Peck, 10 U.S. 87, 142 (1810). The 
judgment below should be affirmed.

Respectfully submitted,
Ja m e s  U . B la c k sh e r

RO. Box 636
Birmingham, Alabama 35201
(205) 591-7238





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No. 12-96

SHELBY COUNTY, Alabama, 
Petitioner, 

v.
ERIC H. HOLDER, Jr., Attorney General, et al., 

Respondents.

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in the above entitled case. All parties required to be served have been served by third-party commercial carrier for delivery 
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SEE ATTACHED

To be filed for:
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Counsel o f Record 
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(205)591-7238 
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— Nam e— — — — — — ------ -—
Attorneys for Petitioner:
Bert W. Rein 
Counsel of Record

•—  ------------Address— — ------ —-— -— —  -P h on e -—

Wiley Rein LLP (202) 719-7000 
1776 K Street, N.W.
Washington, DC 20006 
brein@wileyrein.com

Party name: Shelby County, Alabama

Attorneys for Respondents:
Debo P. Adegbile 
Counsel of Record

NAACP Legal Defense & Educational Fund, Inc. (212) 965-2249 
99 Hudson Street, 16th Floor.
New York, NY 10013 
dadegbile@naacpldf.org

Party name: respondent-intervenors Earl Cunningham, et al

Jon M. Greenbaum 
Counsel of Record

Lawyers' Committee for Civil Rights Under Law (202) 662-8315

1401 New York Avenue, NW 
Suite 400
Washington, DC 20005 
jgreenbaum@lawyerscommittee.org

Party name: Respondent-lntervenor Bobby Lee Harris

Laughlin McDonald 
Counsel of Record

American Civil Liberties Union Foundation (404) 523-2721

230 Peachtree Street NW 
Atlanta, GA 30303-1504 
lmcdonald@aclu.org

Party name: Respondent - Intervenors Bobby Pierson, etal

Donald B. Verrilli Jr. 
Counsel of Record

Solicitor General (202) 514-2217

United States Department of Justice 
950 Pennsylvania Avenue, N.W., Room 5614 
Washington, DC 20530-0001 
SupremeCtBriefs@USDOJ.gov

Party name: Eric H. Holder, Jr., Attorney General

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No. 12-96

SHELBY COUNTY, Alabama,
Petitioner,

v.
ERIC H. HOLDER, Jr., Attorney General, et al.,

Respondents.

CERTIFICATE OF COMPLIANCE

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