Shelby County v. Holder Brief Amici Curiae

    No. 12-96

In The

gbupreme Court of tJje ©nitefo States

Shelby County, Alabama,
Petitioner,

v.

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

On Writ of Certiorari to the 
United States Court of Appeals 

for the District of Columbia Circuit

BRIEF OF AMICI CURIAE ELLEN D. KATZ 
AND THE VOTING RIGHTS INITIATIVE 

IN SUPPORT OF RESPONDENTS

L isa  S. Bla tt  
C h a r le s  G. C u r t is , Jr .

Counsel o f  Record 
A n t h o n y  J. Fr an ze  
A r n o ld  & Po r ter  LLP  
555 12th St., NW 
Washington, DC 20004 
(202) 942-5000 
Charles. Curtis@aporter. com
Counsel for Am ici Curiae

February 1, 2013

W ilson-Epes Printing Co., Inc. -  (202)789-0096 -  Washington, D. C. 20002



TABLE OF CONTENTS

TABLE OF AUTHORITIES................................  iii

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

SUMMARY OF THE ARGUMENT........................  3

ARGUMENT.............................................................  6

I. THE VRI STUDY AND DATABASE
REINFORCE THE CONTINUING 
NEED FOR SECTION 5 IN THE 
COVERED JURISDICTIONS...... ................ 6

A. Section 2 Litigation Outcomes and
Judicial Findings Are Relevant to the 
Constitutionality of Reauthorized 
Section 5...............................................  7

B. Section 2 Litigation Outcomes and
Judicial Findings Support the 
Continued Need for Section 5 
Preclearance........................................  12

1. There Are Proportionately Many
More Successful Section 2 Out­
comes in Covered than in Non- 
Covered Jurisdictions.................... 12

2. The “Senate Factors” Findings 
Collected in the VRI Study and 
Database Reinforce the Continued 
Need for Section 5 Preclearance.... 15

II. PETITIONER, ITS AMICI, AND THE
DISSENT BELOW MISCONSTRUE 
THE VRI STUDY AND DATABASE......  21

Page

(i)



11
TABLE OF CONTENTS—Continued

Page
CONCLUSION..................................................... 32
APPENDICES

APPENDIX A Total Lawsuits and Success 
in Voting Rights Act Section 2 Litigation, 
1982-2005...................................................... la

APPENDIX B Senate Factor Findings in 
Post—1982 Section 2 Litigation, of All Suits 
Considering Factors.....................................  2a

APPENDIX C Local v. State Government 
Challenges Under Section 2, 1982-2005....  3a



Ill

CASES Page(s)

Brown v. Board of School Comm’rs,
706 F.2d 1103 (11th Cir. 1983)................. 25

Brown v. Moore,
428 F. Supp. 1123 (S.D. Ala. 1976).........  25

Escanaha Cnty. v. McMillan,
466 U.S. 48 (1984).....................................  23

Fayetteville, Cumberland Cty. Black Dem.
Caucus v. Cumberland Cty.,
No. 90-2029, 1991 WL 23590 (4th Cir.
Feb. 28, 1991)............................................  25

League of United Latin Am. Citizens v.
Perry,
548 U.S. 399 (2006)...................................  23

Nw. Austin Mun. Util. Dist. No. One v.
Holder,
557 U.S. 193 (2009)...................................  3, 11

Rogers v. Lodge,
458 U.S. 613 (1982)................................7, 19, 23

South Carolina v. Katzenbach,
383 U.S. 301 (1966)...................................  30

South Carolina v. United States,
No. 12-203, 2012 WL 4814094
(D.D.C. Oct. 10,2012)...............................  11

Thornburg v. Gingles,
478 U.S. 30 (1986).....................................  16

Wesch v. Hunt,
785 F. Supp. 1491 (S.D. Ala. 1992)

TABLE OF AUTHORITIES

26



IV

TABLE OF AUTHORITIES—Continued

Page(s)
White v. Alabama,

74 F.3d 1058 (11th Cir. 1996)................... 26
White v. Alabama,

922 F. Supp. 552 (M.D. Ala. 1996)..........  26
CONSTITUTION, STATUTES, AND 

LEGISLATIVE HISTORY
U.S. Const, amend. XTV.............................  23
U.S. Const, amend. XV...............................passim
Voting Rights Act of 1965:

42 U.S.C. § 1973(a)-(b) (“Section 2”)....... passim
42 U.S.C. § 1973c (“Section 5”) ............... passim

Voting Rights Act Amendments of 1982,
Pub. L. No. 97-205, 96 Stat. 131.............  16

Fannie Lou Hamer, Rosa Parks, and 
Coretta Scott King Voting Rights Act
Reauthorization and Amendments Act
of 2006,
Pub. L. No. 109-246,
120 Stat. 577.................................... 2, 10, 20, 32

S. Rep. No. 97-417 (1982)........................ 16-17, 20
S. Rep. No. 109-295 (2006)...........................2, 6, 11
H.R. Rep. No. 109-478 (2006).......................2, 6, 11
To Examine the Impact and Effectiveness 

of the Voting Rights Act: Hearing Before 
the Subcomm. on the Constitution of the 
House Judiciary Comm., 109th Cong., 
2d Sess. (2005)........................................ 2



V

An Introduction to the Expiring Provisions 
of the Voting Rights Act and Legal Issues 
Relating to Reauthorization: Hearing 
Before the Senate Judiciary Comm.,
109th Cong., 2d Sess. (2006).................... 2

The Continuing Need for Section 5 Pre- 
Clearance: Hearing Before the Senate 
Judiciary Comm., 109th Cong., 2d Sess.
(2006).......................................................... 2

OTHER AUTHORITIES

Adam B. Cox & Thomas J. Miles,
Judging The Voting Rights Act,
108 Colum. L. Rev. 1 (2008)..................... 26

Ellen D. Katz & Anna Baldwin,
Why Counting Votes Doesn't Add Up:
A Response to Cox and Miles’
Judging the Voting Rights Act,
108 Colum. L. Rev. Sidebar 23 (2008). 14, 27-29

Ellen D. Katz, Mission Accomplished?,
117 Yale L.J. Pocket Part 142 (2007).. 10, 21, 28

Ellen D. Katz, Not Like the South?
Regional Variation and Political 
Participation Through the Lens of 
Section 2, in Voting Rights Act 
Reauthorization of 2006: Perspectives on 
Democracy, Participation and Power 183 
(A. Henderson ed., 2007).........................passim

TABLE OF AUTHORITIES— Continued

Page(s)



VI

Ellen Katz, with Margaret Aisenbrey,
Anna Baldwin, Emma Cheuse, &
Anna Weisbrodt, Documenting 
Discrimination In Voting: Judicial 
Findings Under Section 2 o f the Voting 
Rights Act Since 1982, Final Report of 
the Voting Rights Initiative, University 
of Michigan Law School,
39 Mich. J.L. Reform 643 (2006)............ passim

TABLE OF AUTHORITIES—Continued

Page(s)

Michael J. Pitts, Let’s Not Call the
Whole Thing Off Just Yet: A Response to
Samuel Issacharoffs Suggestion To
Scuttle Section 5 of the Voting Rights
Act, 84 Neb. L. Rev. 605 (2005)...............  13

U.S. Census Bureau, 2007 Census of 
Governments,
http://www.census.gov/govs/cog/..............  9

U.S. Census Bureau, Vintage 2007: State 
Tables, http://www.census.gov/popest/data/ 
historical/2000s/vintage_2007/index.html 9

VRI Database Master List (2006), 
http://sitemaker.umich.edu/votingrights/ 
files/masterlist.xls.....................................  1



INTEREST OF AMICI CURIAE1
The Voting Rights Initiative (“VRI”) at the Univer­

sity of Michigan Law School is a faculty-student 
collaborative research venture under the direction of 
Professor Ellen D. Katz. In 2005, VRI undertook a 
comprehensive analysis of all cases involving claims 
brought under Section 2 of the Voting Rights Act 
since 1982 that resulted in one or more decisions 
published in a federal reporter or available on West- 
law or Lexis—a total of 763 decisions in 331 lawsuits. 
Each case was evaluated and catalogued based on a 
variety of factors, including whether it involved a 
jurisdiction “covered” under Section 5, the substan­
tive outcome, the specific challenged practices, and 
any relevant judicial findings under the so-called 
“Senate Factors” analysis.

VRI published a final report of its findings and 
analysis in 2006 (the ‘VRI Study” or “Katz Study”), 
and made its entire database available on line in a 
searchable form (the “VRI database”).2 “The aim of

1 The parties have given blanket consents to the filing of 
amicus briefs; their written consents are on file with the Clerk. 
No counsel for a party authored this brief in whole or in part, 
and no party or counsel for a party made a monetary contribu­
tion intended to fund its preparation or submission. No person 
other than amici and their counsel made a monetary contribu­
tion to the preparation or submission of this brief.

2 See Ellen Katz, with Margaret Aisenbrey, Anna Baldwin, 
Emma Cheuse, & Anna Weisbrodt, Documenting Discrimination 
In Voting: Judicial Findings Under Section 2 of the Voting 
Rights Act Since 1982, Final Report of the Voting Rights Initia­
tive, University of Michigan Law School, 39 Mich. J.L. Reform 
643 (2006) [“VRI Study”]; VRI Database Master List (2006), 
available at http://sitemaker.umich.eduVotingrights/files/master 
list.xls [“VRI database”]. The research design and methodology 
are summarized in the VRI Study at 652-54.

http://sitemaker.umich.eduVotingrights/files/master


2

th[e] report and the accompanying website [was] to 
contribute to a critical understanding of current 
opportunities for effective political participation on 
the part of those minorities the Voting Rights Act 
seeks to protect.” VRI Study at 645.

The VRI Study (in draft form) and database were 
part of a 15,000-page evidentiary record that Con­
gress considered when it reauthorized Section 5 of 
the Voting Rights Act in 2006. See Fannie Lou 
Hamer, Rosa Parks, and Coretta Scott King Voting 
Rights Act Reauthorization and Amendments Act of 
2006, Pub. L. No. 109-246, 120 Stat. 577 [“2006 Act”]; 
see also Pet. App. 265a-66a. The study was cited 
in the House and Senate Reports, and discussed in 
various committee hearings.3 Both the District Court 
and the Court of Appeals below relied on the VRI 
Study and database in upholding the constitutional­
ity of the 2006 reauthorization of Section 5’s preclear­
ance requirement in the covered jurisdictions. See 
Pet. App. 130a, 232a-40a; id. at 49a (describing the 
VRI Study as “the most concrete evidence comparing 
covered and non-covered jurisdictions in the legisla­
tive record”); id. at 36a-38a, 49a-51a, 54a-60a.

Petitioner Shelby County, some of its supporting 
amici, and the dissent below, on the other hand, have

3 See, e.g., H.R. Rep. No. 109-478, at 53 (2006); S. Rep. No. 
109-295, at 13, 65 (2006); To Examine the Impact and Effective­
ness of the Voting Rights Act: Hearing Before the Subcomm. on 
the Constitution of the House Judiciary Comm., 109th Cong., 1st 
Sess. 964-1124 (2005) (reprinting full draft of VRI Study); An 
Introduction to the Expiring Provisions of the Voting Rights Act 
and Legal Issues Relating to Reauthorization: Hearing Before 
the Senate Judiciary Comm., 109th Cong., 2d Sess. 29, 43-45, 
159-60, 212 & n.14 (2006); The Continuing Need for Section 5 
Pre-Clearance: Hearing Before the Senate Judiciary Comm., 
109th Cong., 2d Sess. 48-52 (2006).



either criticized aspects of the VRI Study, denied its 
relevance, or relied on it as purported evidence that 
Section 5 preclearance is no longer justified in at 
least some covered jurisdictions. Id. at 90a-97a 
(Williams, J., dissenting); Pet. Br. 36, 46-52; see also 
n.9 infra.

Amici curiae Professor Katz and VRI have an inter­
est in ensuring an accurate description and inter­
pretation of their study’s findings and underlying 
data. Based on their familiarity with the relevant 
Section 2 data, amici respectfully offer their views on 
those data and the implications of those data for the 
constitutionality of reauthorized Section 5.

SUMMARY OF THE ARGUMENT
I. This Court has identified two questions about 

Section 5’s continued constitutionality—whether the 
“current burdens” it imposes are “justified by current 
needs,” and whether its “disparate geographic cover­
age is sufficiently related to the problem that it 
targets.” Nw. Austin Mun. Util. Dist. No. One v. 
Holder, 557 U.S. 193, 203 (2009). The VRI Study and 
database shed important light on both questions.

First, the VRI Study and database demonstrate 
that Section 2 claims have been more likely to 
succeed in covered than in non-covered jurisdictions. 
As the Court of Appeals emphasized, “although cov­
ered jurisdictions account for less than 25 percent of 
the country’s population, they accounted for 56 per­
cent of successful section 2 litigation since 1982.” 
Pet. App. 49a. The per capita Section 2 success rate 
in covered jurisdictions is “nearly four times the rate 
in non-covered jurisdictions.” Id. at 49a-50a. These 
disparities are even greater in Section 2 challenges to 
local voting requirements and procedures. The dis­

3



parities have endured over time, and persist at both 
the trial and appellate levels.

Second, courts have been much more likely in cov­
ered than in non-covered jurisdictions to make 
factual findings documenting certain conditions that 
are frequently associated with voting discrimination. 
Courts in covered jurisdictions have made more of 
these so-called “Senate Factor” findings (and have 
been more likely to make such findings) with respect 
to eight out of the nine Senate Factors. These factors 
are “virtually identical” to those considered in de­
termining whether discrimination is “intentional.” 
Id. at 37a. “[T]he differences in judicial findings in 
Section 2 lawsuits in covered and non-covered 
jurisdictions suggest real differences operating on the 
ground,” showing that many of the evils Congress set 
out to address through Section 5 preclearance remain 
disproportionately concentrated in covered jurisdic­
tions. VRI Study at 734.

As the Court of Appeals emphasized, these results 
are “particularly dramatic given that Attorney Gen­
eral objections block discriminatory laws before they 
can be implemented and that section 5 deters juris­
dictions from even attempting to enact such laws, 
thereby reducing the need for section 2 litigation in 
covered jurisdictions.” Pet. App. 38a. Hundreds of 
proposed election changes in covered jurisdictions 
have been blocked by U.S. Department of Justice 
(“DOJ”) objections; hundreds more have been with­
drawn or modified in the course of Section 5 review; 
many others have been rejected in Section 5 litiga­
tion; and countless others were never even proposed 
given Section 5’s deterrent effects. In a counter- 
factual world in which Section 5 had never existed, at 
least some of these election changes would have gone

4



into effect and ripened into Section 2 violations. 
Section 5 therefore has blocked and deterred many 
Section 2 violations from ever taking place in covered 
jurisdictions.

Nevertheless, covered jurisdictions have produced 
a disproportionate share of Section 2 violations, even 
after nearly a half-century of federal preclearance 
review, objections, and enforcement actions. Far 
from evidence that Section 5 is no longer needed, this 
discrepancy is strong evidence of Section 5’s contin­
ued importance in the effort to secure voting rights in 
the covered jurisdictions.

II. Petitioner, its amici, and the dissent below have 
misconstrued and misapplied the VEI Study and 
database. Their methodological arguments are either 
wrong or irrelevant. And their argument that many 
“covered jurisdictions appear indistinguishable from 
their uncovered peers,” id. at 93a (Williams, J., dis­
senting), overlooks that these “covered states appear 
comparable to some non-covered jurisdictions only 
because section 5’s deterrent and blocking effect 
screens out discriminatory laws before section 2 liti­
gation becomes necessary,” id. at 59a-60a. As the 
Court of Appeals observed, “had section 5 not been in 
effect, one would expect significantly more discrimi­
nation in [covered jurisdictions] than in the non- 
covered states with the worst records.” Id. at 60a. 
And in any event, none of the criticisms leveled 
against the VEI Study call into question its funda­
mental insight that, on a per capita basis, successful 
reported Section 2 suits are much more concentrated 
in the covered jurisdictions.

5



ARGUMENT
6

I. THE VRI STUDY AND DATABASE 
REINFORCE THE CONTINUING NEED 
FOR SECTION 5 IN THE COVERED 
JURISDICTIONS.

The VRI Study and database were simply one part 
of a massive evidentiary record that was before Con­
gress when it reauthorized Section 5 in 2006.4 More­
over, VRI used “conservative []” methodology that 
understates the continuing disparities between cov­
ered and non-covered jurisdictions in opportunities 
for racial and language minorities to participate 
equally in the political process and elect candidates of 
their choice. VRI Study at 655; see Pet. App. 54a 
(“the Katz data on published cases is necessarily 
underinclusive” of all Section 2 litigation).

Nevertheless, the VRI Study and database provide 
powerful evidence in support of Congress’s reauthor­
ization of Section 5. An analysis of Section 2 litiga­
tion outcomes, and of the factual findings that sup­
port those outcomes, suggests that minority voters 
have continued to be more likely to confront obstacles

4 During the 2006 re authorization and amendment process, 
Congress held 22 hearings, heard testimony from 92 witnesses, 
and “amassed a 15,000-page legislative record.” Pet. App. 266a. 
That record “consisted of thousands of pages of testimony, re­
ports, and data regarding racial disparities in voter registration, 
voter turnout, and electoral success; the nature and number of 
section 5 objections; judicial preclearance suits and section 5 
enforcement actions; successful section 2 litigation; the use of 
‘more information requests’ and federal election observers; 
racially polarized voting; and section 5’s deterrent effect.” Id. 
at. 12a; see also H.R. Rep. No. 109-478, at 5, 11-12 (summariz­
ing the legislative history); S. Rep. No. 109-295, at 2-4 (same).



to political participation in covered jurisdictions than 
elsewhere.

A. Section 2 Litigation Outcomes and 
Judicial Findings Are Relevant to 
the Constitutionality of Reauthorized 
Section 5.

Section 2 of the Voting Rights Act prohibits, on a 
nationwide and permanent basis, the imposition or 
application of any “voting qualification or prerequi­
site to voting or standard, practice, or procedure . . . 
in a manner which results in a denial or abridgement 
of the right of any citizen of the United States to vote 
on account of race or color, or [language minority 
s t a t u s ] 42 U.S.C. § 1973(a). A violation of Section 2 
occurs when the challenged requirement or procedure 
objectively results in minority voters having “less 
opportunity than other members of the electorate to 
participate in the political process and to elect 
representatives of their choice.” Id. § 1973(b). As the 
Court of Appeals observed, this “results test” is rele­
vant here because, among other reasons, it “requires 
consideration of factors very similar to those used to 
establish discriminatory intent based on circumstan­
tial evidence.” Pet. App. 37a (citing Rogers v. Lodge, 
458 U.S. 613, 623-27 (1982)).

If, in some parallel universe, there were no longer 
any geographic disparities in voting rights discrimi­
nation against racial and language minorities—if the 
repeatedly reaffirmed need for Section 5 preclearance 
in certain covered jurisdictions had simply “gone 
away”—one would expect Section 2 litigation out­
comes to be roughly uniform throughout the country. 
If pockets of voting discrimination were no longer 
concentrated in certain jurisdictions, one would ex­

7



pect the volume and results of Section 2 litigation to 
be roughly the same in covered and non-covered 
jurisdictions. In this counterfactual world, a Section 
2 plaintiff would be no more likely to prevail in 
Alabama than in any other State. Judicial findings 
of continued voting discrimination against racial and 
language minorities would be spread fairly evenly, 
not concentrated in certain portions of the country.

Indeed, for several reasons, one would expect the 
absolute number of Section 2 violations in this hypo­
thetical world to be much greater in non-covered 
jurisdictions than in covered ones. Since less than a 
quarter of Americans live in covered jurisdictions, we 
would expect a much larger number of successful 
Section 2 outcomes in non-covered jurisdictions, 
which contain three-quarters of our population, in­
cluding most African Americans, Latinos, and Native 
Americans. See Pet. App. 49a; Ellen D. Katz, Not 
Like the South? Regional Variation and Political 
Participation Through the Lens of Section 2 , in 
Voting Rights Act Reauthorization of 2006: Perspec­
tives on Democracy, Participation and Power 183, 
211 & n.138 (A. Henderson ed., 2007) [Katz, Not Like 
the South?].

The disparities become even more pronounced 
when one considers the relative number of political 
subdivisions in covered and non-covered jurisdictions. 
By a lopsided margin, covered jurisdictions contain 
far fewer local governmental units—e.g., county 
governments, townships, and independent school dis­
tricts—than the non-covered ones.5 Assuming those

8

5 As of 2007, the covered jurisdictions accounted for just 
13.3% of the political subdivisions in the United States, while 
non-covered jurisdictions contained 86.7% of such subdivisions. 
Thus, despite having roughly a quarter of the nation’s popula­



units regulate voting and election practices with 
similar intensity, this disparity suggests that the 
covered jurisdictions should be the source of far fewer 
practices that could become the basis for a Section 2 
lawsuit. Thus, whether examined in light of differ­
ences in population or the number of local govern­
mental units, one would expect a much higher num­
ber of Section 2 violations in the non-covered 
jurisdictions if, in a counterfactual world, there were 
no longer geographic disparities in voting rights 
discrimination against racial and language 
minorities.

In addition, any effort to compare covered with 
non-covered jurisdictions must consider Section 5’s 
role as an operational statute, one that has actively 
been blocking and deterring retrogressive or other­
wise discriminatory voting changes for the past two 
generations. Although Sections 2 and 5 are not 
coextensive, they outlaw many of the same practices 
and conduct. “Where they overlap, preclearance 
should block implementation of the offensive practice 
and eliminate the need for plaintiffs to challenge it 
under section 2. . . . [I]f [covered! jurisdictions have 
been ‘cured,’ they should account for fewer successful

9

tion, covered jurisdictions had less than a sixth of its local 
governmental units. See U.S. Census Bureau, 2007 Census of 
Governments, http://www.census.gov/govs/cog/ (last visited Jan. 
29, 2013); U.S. Census Bureau, Vintage 2007: State Tables,
http://www.census.gOv/popest/data/historical/2000s/vintage_2007
/index.html (last visited Jan. 29, 2013). These figures do not 
include the covered townships in Michigan and New Hampshire 
because of the difficulty in determining which local governmental 
units serve those jurisdictions. As of 2007, fully covered States 
accounted for just 12.3% of the total local governmental units 
nationwide. U.S. Census Bureau, 2007 Census of Governments, 
http://www.census.gov/govs/cog/ (last visited Jan. 29, 2013).

http://www.census.gov/govs/cog/
http://www.census.gOv/popest/data/historical/2000s/vintage_2007
http://www.census.gov/govs/cog/


1 0

section 2 lawsuits than noncovered ones, where 
section 5 does not operate.” Ellen D. Katz, Mission 
Accomplished?, 117 Yale L.J. Pocket Part 142, 145-46 
(2007) [Katz, Mission Accomplished?]; see also Katz, 
Not Like the South?, at 211.

Although it is impossible to pinpoint how an alter­
native world would have looked in the absence of 
Section 5, there can be no genuine dispute that 
preclearance has dramatically reduced the number of 
potential Section 2 violations in covered jurisdictions. 
Congress found in the 2006 Act that, pursuant to 
Section 5 and related provisions, there have been 
hundreds of federal objections “interposed” against 
attempted election changes in covered jurisdictions; 
hundreds more requests for additional information 
(so-called “MIRs”) “followed by voting changes with­
drawn from consideration by [covered] jurisdictions”; 
numerous DOJ enforcement actions that “prevented 
election practices . . . from being enacted to dilute 
minority voting strength”; many failed attempts by 
covered jurisdictions to obtain declaratory judgments 
preclearing proposed voting changes; and “tens of 
thousands of Federal observers” monitoring election 
practices in covered jurisdictions. 2006 Act § 2(b)(4)- 
(5), (8); see Pet. App. 31a-46a, 131a-32a, 206a-31a, 
240a-45a (all cataloguing the extensive Section 5 
enforcement efforts in covered jurisdictions since 
1982). These enforcement measures blocked or miti­
gated many voting practices that otherwise would 
have resulted in even more Section 2 litigation in the 
covered jurisdictions.

The impacts of Section 5 preclearance cannot be 
measured in the numbers of federal objections, MIRs, 
or enforcement actions alone. As the House Judiciary 
Committee emphasized, Section 5 has deterred cov­



ered jurisdictions “from even attempting to enact 
discriminatory voting changes” because officials un­
derstand that “'submitting discriminatory changes is 
a waste of taxpayer time and money.”’ H.R. Rep. No. 
109-478, at 24 (citation omitted).

“Section 5’s reach in preventing discrimination is 
broad. Its strength lies not only in the number of 
discriminatory voting changes it has thwarted, 
but can also be measured by the submissions 
that have been withdrawn from consideration, 
the submissions that have been altered by 
jurisdictions in order to comply with the [Voting 
Rights Actl, or in the discriminatory voting 
changes that have never materialized.” Id. at 36.

See also S. Rep. No. 109-295, at 11, 14 (describing 
Section 5's deterrent effect); Nw. Austin, 557 U.S. at 
205 (quoting district court finding that the legislative 
record “demonstrat[ed] that section 5 prevents dis­
criminatory voting changes” by “quietly but effec­
tively deterring discriminatory changes”) (citation 
and internal quotation marks omitted); South Caro­
lina v. United States, No. 12-203, 2012 WL 4814094, 
at *21 (D.D.C. Oct. 10, 2012) (Bates, J., concurring) 
(discussing the “vital function” that Section 5 pre­
clearance review played in causing South Carolina to 
make its proposed voter photo ID law less restrictive 
through the addition of “key ameliorative provisions,” 
changes that “were driven by South Carolina officials’ 
efforts to satisfy the requirements of the Voting 
Rights Act”).

If these targeted federal enforcement measures 
were operating in a world in which “governmental 
officials in each jurisdiction ha[d] equal propensity to 
engage in conduct prohibited by Section 2,” one would 
expect to find far more Section 2 cases and violations

11



12

in non-covered jurisdictions, “where, by definition, 
preclearance does not operate.” Katz, Not Like the 
South?, at 211. And given the differences in popula­
tion and numbers of political subdivisions between 
covered and non-covered jurisdictions, see pp. 8-9 
supra, one would expect this disparity in Section 2 
outcomes to be even greater.

As next shown, just the opposite is true—Section 2 
claims have been much more likely to succeed in 
covered jurisdictions, and eight of the nine “Senate 
Factors” associated with voting discrimination have 
been more likely to be found in covered than in non- 
covered jurisdictions.

B. Section 2 Litigation Outcomes and 
Judicial Findings Support the Contin­
ued Need for Section 5 Preclearance.

1. There Are Proportionately Many 
More Successful Section 2 Out­
comes in Covered than in Non- 
Covered Jurisdictions.

The Court of Appeals pointed to “two key findings” 
in the VRI Study “suggesting that racial discrimina­
tion in voting remains ‘concentrated in the jurisdic­
tions singled out for preclearance.’” Pet. App. 49a 
(citing Nw. Austin, 557 U.S. at 203):

• “[A]lthough covered jurisdictions account for 
less than 25 percent of the country’s popula­
tion, they accounted for 56 percent of success­
ful section 2 litigation since 1982.” Id. When 
the data are adjusted to reflect population 
differences, “the rate of successful section 2 
cases in covered jurisdictions (.94 per million 
residents) is nearly four times the rate in non­



covered jurisdictions (.25 per million resi­
dents).” Id. at 49a-50a (emphasis added).

• “ [T]he study found higher success rates in 
covered jurisdictions than in non-covered 
jurisdictions”—42.5% versus 32.2%. Id. at 51a; 
see VRI Study at 656.

These disparities in litigation success rates are 
even more pronounced in challenges to local (espe­
cially county) voting requirements and procedures— 
e.g., a plaintiff success rate of 55.3% in covered 
counties versus only 36.4% in non-covered counties. 
See App. C infra. The number of proposed changes 
submitted by local governments “far outpaces the 
number of submissions from state governments,” 
and federal objections to proposed local changes “far 
outnumber” objections to state changes.6 “Even in 
this context, where preclearance operates most vigor­
ously to block electoral changes, covered jurisdictions 
still are the subject of more successful Section 2 chal­
lenges than are noncovered jurisdictions, where 
preclearance is not screening out any of the chal­
lenges to local practices.” Katz, Not Like the South?, 
at 211-12.

These disparities in Section 2 outcomes between 
covered and non-covered jurisdictions persist at both 
the trial and appellate levels. The appellate disparity 
is particularly striking:

13

6 Michael J. Pitts, Let’s Not Call the Whole Thing Off Just Yet: 
A  Response to Samuel Issacharoffs Suggestion To Scuttle 
Section 5 of the Voting Rights Act, 84 Neb. L. Rev. 605, 612-13 
(2005). It has been argued that Section 5 “has had its greatest 
impact, success, and necessity” at the local level, and that “pro­
tection of minority voting rights in local government represents 
section 5’s most important modern-day function.” Id. at 610, 
612.



14
“Appellate courts in covered jurisdictions were 
both more likely to reverse denials of liability 
and less likely to reverse violations than were 
courts in non-covered regions. In other words, 
defendants were more likely to win on appeal in 
non-covered regions, while plaintiff-appeals were 
more likely to succeed in covered regions. This 
suggests that trial judges in covered jurisdic­
tions, if anything, appear to have read section 2 
too restrictively, and that the violations identi­
fied in covered regions are more clear and less 
vulnerable to challenge than those found else­
where.” Ellen D. Katz & Anna Baldwin, Why 
Counting Votes Doesn’t Add Up: A Response to 
Cox and Miles’ Judging the Voting Rights Act, 
108 Colum. L. Rev. Sidebar 23, 26 (2008) [Katz & 
Baldwin, Why Counting Votes Doesn't Add Up].

As the Court of Appeals emphasized, this statisti­
cally significant and continuing disparity between 
successful Section 2 outcomes in covered and non- 
covered jurisdictions is “particularly dramatic given 
that Attorney General objections block discrimina­
tory laws before they can be implemented and that 
section 5 deters jurisdictions from even attempting 
to enact such laws, thereby reducing the need for 
section 2 litigation in covered jurisdictions.” Pet. 
App. 38a. Though the precise impact of Section 5 
preclearance cannot be quantified, consider that, 
while Georgia had only three successful published 
Section 2 cases between 1982 and 2004, the State and 
its subdivisions during this same period were the 
subject of 83 Section 5 objections, 17 successful DOJ 
enforcement actions, and numerous MIRs that re­
sulted in the withdrawal of 90 proposed voting 
changes. Id. at 58a-59a. Likewise, South Carolina 
had only three successful published Section 2 cases



during this time but was the subject of 74 Section 5 
objections, 10 successful DOJ enforcement actions, 
and numerous MIRs resulting in the withdrawal or 
abandonment of 77 proposed voting changes. Id. at 
59a.

Though not all of these blocked changes would 
have ripened into constitutional or Section 2 viola­
tions if allowed to proceed, surely some would have 
sparked additional Section 2 litigation. It is not 
difficult to imagine far more than merely three suc­
cessful published Section 2 cases in Georgia and 
another three in South Carolina if the federal govern­
ment had not blocked and narrowed hundreds of 
proposed voting changes in those States. As the 
Court of Appeals recognized, that is what makes the 
evidence in the VRI Study and database “particularly 
dramatic”—a disproportionate share of Section 2 vio­
lations have occurred in covered jurisdictions, even as 
federal preclearance reviews, objections, and enforce­
ment actions have continued to prevent voting rights 
violations that otherwise would have been addressed 
in Section 2 litigation. This is a testament to the 
tenacity of voting discrimination in covered jurisdic­
tions, not evidence that Section 5 is no longer needed.

2. The “Senate Factors” Findings Col­
lected in the VRI Study and 
Database Reinforce the Continued 
Need for Section 5 Preclearance.

Looking beyond litigation outcomes to the findings 
of fact made by judges in Section 2 litigation, the VRI 
Study shows that courts in covered jurisdictions have 
been much more likely to document certain condi­
tions linked to voting discrimination than courts 
in non-covered jurisdictions. The so-called “Senate

15



Factors” analysis spelled out in the 1982 Senate 
Report provides courts with a structured but non- 
exhaustive checklist of nine factors to consider in 
determining whether a challenged practice results in 
racial and language minorities having “less oppor­
tunity than other members of the electorate to par­
ticipate in the political process and to elect repre­
sentatives of their choice.” 42 U.S.C. § 1973(b); see 
S. Rep. No. 97-417, at 28-29 (1982); Thornburg v. 
Gingles, 478 U.S. 30, 43 n.7 (1986) (pointing to the 
1982 Senate Report as “the authoritative source for 
legislative intent” of the 1982 amendments); 478 U.S. 
at 43-46.7

16

7 The non-exhaustive factors spelled out in the 1982 Senate 
Report include (1) “the extent of any history of official dis­
crimination in the state or political subdivision that touched the 
right of the members of the minority group to register, to vote, 
or otherwise to participate in the democratic process”; (2) “the 
extent to which voting in the elections of the state or political 
subdivision is racially polarized”; (3) “the extent to which the 
state or political subdivision has used unusually large election 
districts, majority vote requirements, anti-single shot provi­
sions, or other voting practices or procedures that may enhance 
the opportunity for discrimination against the minority group”;
(4) “if there is a candidate slating process, whether the members 
of the minority group have been denied access to that process”;
(5) “the extent to which members of the minority group in the 
state or political subdivision bear the effects of discrimination in 
such areas as education, employment and health, which hinder 
their ability to participate effectively in the political process”; (6) 
“whether political campaigns have been characterized by overt 
or subtle racial appeals”; (7) “the extent to which members of 
the minority group have been elected to public office in the 
jurisdiction”; (8) “whether there is a significant lack of respon­
siveness on the part of elected officials to the particularized 
needs of the members of the minority group”; and (9) “whether 
the policy underlying the state or political subdivision’s use of



As shown in Appendix B to this brief, courts in 
covered jurisdictions made more affirmative “Senate 
Factor” findings (and were more likely to make such 
findings) with respect to eight out of the nine Senate 
Factors. That is a striking disparity if, as Shelby 
County insists (Pet. Br. 46), there are no longer any 
meaningful differences in minority voting opportuni­
ties between covered and non-covered jurisdictions. 
Specifically:

• “Courts in covered jurisdictions have both 
found and been more likely to find at levels 
that are statistically significant: acts of official 
discrimination that compromise voting rights, 
the use of devices that ‘enhance Q’ opportuni­
ties for discrimination against minority voters, 
and a lack of success by minority candidates.” 
Katz, Not Like the South?, at 187 (footnote 
omitted).

• “Courts in covered jurisdictions have also 
found and been more likely to find a lower 
level of minority voter registration and turn­
out, contemporary voting opportunities shaped 
by the continuing effects of discrimination in 
various socio-economic realms, racial appeals 
in campaigns, and tenuous justifications un­
derlying challenged practices, although these 
differences between covered and noncovered 
jurisdictions are not statistically significant.” 
Id.

• “In roughly equal numbers and proportions, 
courts in covered and noncovered jurisdictions 
have found racially exclusive slating processes

17

such voting qualification, prerequisite to voting, or standard, 
practice or procedure is tenuous.” S. Rep. No. 97-417, at 28-29.



and nonresponsive elected officials. Courts in 
both types of jurisdictions also found legally 
significant racial bloc voting in a roughly equal 
number of lawsuits, but courts in covered 
jurisdictions documented voting patterns that 
were more extremely polarized by race at a 
rate that is statistically significant.” Id. at 
187-88.

Some of the measured disparities in the VRI data­
base are not statistically significant, though several 
are. Yet even where the numbers are roughly equiva­
lent, that itself is significant evidence supporting the 
continued need for Section 5 preclearance review. In 
the counterfactual world posited by Shelby County, 
the particularized “Senate Factors” findings should 
be overwhelmingly concentrated in non-covered juris­
dictions given that (1) those jurisdictions contain 
more than three-quarters of the country’s population, 
including the majority of its racial and language 
minorities; (2) they also contain over five-sixths of 
the country’s local governmental units; and (3) non- 
covered jurisdictions, by definition, have not been 
subjected to two generations of federal preclearance 
review, objections, MIRs, enforcement litigation, and 
federal monitoring. Given these considerations, one 
would expect to find many more instances of the 
Senate Factors in non-covered jurisdictions than in 
covered jurisdictions. But just the opposite is true 
with respect to eight out of nine Senate Factors (all 
but Factor 4, candidate slating processes).

The VRI Study and database also show that, in 
several instances, courts in covered jurisdictions were 
more likely, at statistically significant levels, to make 
findings of serious racial and language discrimination 
in voting.

18



19
Senate Factor 1 (acts of official discrimina­

tion). Courts in covered jurisdictions identified evi­
dence of a “history of official discrimination” touching 
the right to vote in 58.1% of their Section 2 cases that 
considered at least one of the Senate Factors. By 
contrast, courts in non-covered jurisdictions identi­
fied such a history in only 38.2% of opinions identify­
ing at least one Senate Factor. Katz, Not Like 
the South?, at 194 n.40; VRI Study at 675-97. The 
findings document a broad and troubling range of 
official efforts to harass, intimidate, and interfere 
with voting rights in covered jurisdictions. VRI 
Study at 678-85. Note that Senate Factor 1 is not 
met simply by a history of official discrimination; 
that discrimination must “touch []” the contemporary, 
“present-day ability of [minority voters] to participate 
in the political process.” Id. at 676, 696. Thus it is 
especially significant that most findings of official 
discrimination were concentrated in covered jurisdic­
tions.

Senate Factor 2 (racially polarized voting).
Evidence of racially polarized voting “bear[s] heavily 
on the issue of purposeful discrimination,” because 
such polarization “allows those elected to ignore 
[minority] interests without fear of political conse­
quences, and without bloc voting the minority 
candidates would not lose elections solely because of 
their race.” Rogers v. Lodge, 458 U.S. at 623. Courts 
in covered and non-covered jurisdictions have found 
evidence of legally significant racially polarized vot­
ing in roughly the same number of lawsuits. Katz, 
Not Like the South?, at 195-96. But “courts in 
covered jurisdictions have documented racial polari­
zation in specific elections that was more extreme 
than have courts in noncovered ones, and have done 
so at rates that are statistically significant.” Id. at



196. (“Extreme” polarization is defined as white bloc 
voting of 80% or more in minority-white elections.) 
Although 40.9% of the elections documented in non­
cover ed jurisdictions found extreme white bloc voting, 
fully 80.7% of the elections documented in covered 
jurisdictions involved this extreme degree of racial 
polarization. See id. at 196-97. Congress in its state­
ment of “Congressional Purpose and Findings” em­
phasized that the “continued evidence of racially 
polarized voting in each of the [covered] jurisdictions 
. . . demonstrates that racial and language minorities 
remain politically vulnerable, warranting the contin­
ued protection” of Section 5. 2006 Act § 2(b)(3).

Senate Factor 3 (use of discrimination­
enhancing practices). This factor considers the 
“extent to which the state or political subdivision has 
used . . . voting practices or procedures that may 
enhance the opportunity for discrimination” against 
racial and language minorities. S. Rep. No. 97-417, 
at 29. The VRI Study found that 63.5% of the cases 
finding Senate Factor 3 arose in covered jurisdictions, 
as opposed to only 36.5% in non-covered jurisdictions. 
VRI Study at 698. Courts in covered jurisdictions 
were thus nearly twice as likely to make this kind of 
finding as courts in non-covered jurisdictions. See 
id.; Katz, Not Like the South?, at 197.

Senate Factor 7 (lack of minority candidate 
success). Courts in covered jurisdictions also have 
been more likely to document a longstanding lack of 
success by minority candidates—56.7% of cases 
making this finding involved covered jurisdictions 
while only 43.3% involved non-covered jurisdictions. 
VRI Study at 718. “Nearly one in two courts in 
covered jurisdictions found a lack of candidate suc­
cess, compared to less than one in three courts in

2 0



2 1

noncovered jurisdictions.” Katz, Not Like the South?, 
at 202; see VRI Study at 717-22.

These disparities in key Senate Factors findings 
are all the more remarkable given that covered juris­
dictions during this period were subject to ongoing 
federal preclearance, objections, MIRs, enforcement 
proceedings, and monitoring, while non-covered juris­
dictions were not. If opportunities for minority 
political participation were uniform nationwide, one 
would have expected to find many more Section 2 
violations and many more Senate Factor findings 
documenting voting discrimination in non-covered 
than in covered jurisdictions. The only fair prediction 
is that, if Section 5 preclearance were eliminated, the 
disparities between covered and non-covered jurisdic­
tions documented in the VRI Study would become 
even more pronounced.

II. PETITIONER, ITS AMICI, AND THE 
DISSENT BELOW MISCONSTRUE THE 
VRI STUDY AND DATABASE.

The authors of the VRI Study consistently have 
acknowledged that it “of course” evaluates “only a 
portion of the Section 2 claims filed or decided since 
1982”—many claims having been either dropped, 
settled, or decided without any decision ever being 
published in a federal reporter or on Westlaw or 
Lexis. VRI Study at 654. The study is thus 
“conservative []” in its documentation of Section 2 vio­
lations. Id. at 655. As Professor Katz has empha­
sized, the available data “suggest!] that a fuller 
accounting of section 2 litigation would reveal an 
even greater proportion and number of successful 
plaintiff outcomes in covered jurisdictions than in 
noncovered ones.” Katz, Mission Accomplished?, at 
146.



2 2

That is precisely the conclusion reached by the 
Court of Appeals below. Based on its analysis of 
Section 2 cases that involved both published and 
unpublished decisions, the court emphasized that 
covered jurisdictions “appear to be engaged in much 
more unconstitutional discrimination compared to 
non-covered jurisdictions than the Katz data alone 
suggests.” Pet. App. 59a; see also id. at 54a-55a 
(unpublished Section 2 decisions “provide!] helpful 
additional evidence that corroborates the disparities 
in the level of discrimination between covered and 
non-covered jurisdictions revealed by the [VRI 
Study’s] published data”).

Although the methodology and conclusions of the 
VRI Study are conservative and “necessarily under- 
inclusive,” id. at 54a, the dissenting judge below, 
petitioner Shelby County, and several amici raise 
various objections to the study. None is well taken.

Relevance objections. Shelby County argues 
that, “ [o]f the data in the Katz Study, intentional- 
discrimination findings should be the only relevant 
statistic!.]” Pet. Br. 48 n.10. It parses these findings 
and declares that they demonstrate more “intentional 
discrimination” now exists in non-covered jurisdic­
tions than in covered ones. Id. at 47-48.

This argument fails for many reasons. Because 
Section 2 uses a “results test” that does not require 
proof of discriminatory intent, it tends to understate 
the true extent of intentional discrimination. “[C]ourts 
have no need to find discriminatory intent once they 
find discriminatory effect.” Pet. App. 37a. Indeed, 
courts have a duty to avoid addressing constitutional 
issues where they can resolve the case on narrower 
statutory grounds, which further “explains why the 
legislative record contains so few published section 2



cases with judicial findings of discriminatory intent.” 
Id.; see Escanaba Cnty. v. McMillan, 466 U.S. 48, 51 
(1984) (declining to decide whether evidence of dis­
criminatory intent was sufficient to establish a 
Fourteenth Amendment violation where challenged 
system also violated Section 2); see also League of 
United Latin Am. Citizens v. Perry, 548 U.S. 399, 440 
(2006) (deciding case under Section 2 while noting 
that the challenged practice “bears the mark of 
intentional discrimination”).

Moreover, Section 2’s results test “requires con­
sideration of factors very similar”—the Court of 
Appeals termed them “virtually identical”—“to those 
used to establish discriminatory intent based on cir­
cumstantial evidence.” Pet. App. 37a; see also Rogers 
v. Lodge, 458 U.S. at 622-27 (upholding finding of 
intentional discrimination based on satisfaction of 
precursors to the Senate Factors).8 The Senate 
Factors findings are thus highly relevant to the 
Section 5 inquiry. And notwithstanding the focus on 
results rather than intent, many reported Section 2 
decisions have included “judicial findings of inten­

23

8 In upholding a finding of intentional voting discrimination, 
this Court in Rogers pointed to evidence of “bloc voting along 
racial lines”; the absence of minority electoral success; “the 
impact of past discrimination on the ability of blacks to partici­
pate effectively in the political process”; practices that “had 
prevented blacks from effectively participating in Democratic 
Party affairs and in primary elections”; the “unresponsive [ness] 
and insensitiv[ity]” of elected officials “to the needs of the black 
community”; “the depressed socio-economic status” of the minor­
ity community; the “sheer geographic size” of the electoral 
district; and the use of a “majority vote requirement.” 458 U.S. 
at 626-27. These considerations that helped to establish inten­
tional discrimination in Rogers are the same as Senate Factors 
1-5 and 7-8. See n.7 supra.



tional or unconstitutional voting discrimination by 
covered jurisdictions since 1982,” including in peti­
tioner’s home state of Alabama. Pet. App. 235a; see 
id. at 235a-40a; VRI Study at 683-85.

Here again, the Section 2 numbers would be much 
worse in covered jurisdictions in the absence of 
Section 5 preclearance review. "[BJecause most 
intentionally discriminatory voting practices are 
blocked by Section 5 prior to their implementation, 
they are unlikely to be the subject of a subsequent 
Section 2 challenge.” Pet. App. 233a. As the Court of 
Appeals concluded, the continuing volume of success­
ful Section 2 claims in covered jurisdictions is 
"particularly dramatic” given the ongoing vigorous 
enforcement of Section 5 preclearance review. Pet. 
App. 38a. The absence of even more extensive voting 
discrimination in covered jurisdictions does not sug­
gest that the need for Section 5 preclearance review 
has passed, but that Section 5 "is fulfilling its most 
basic mission.” Katz, Not Like the South?, at 210. "A 
record of pervasive unconstitutional conduct should 
not be expected since the legislation at issue was put 
in place to remedy precisely such conduct. Indeed, 
to require such a record would mean that only 
ineffective statutes are entitled to reauthorization.” 
Id. at 185.

Methodological objections. The Court of Appeals 
believed the VRI Study is underinclusive, and that 
covered jurisdictions "appear to be engaged in much 
more unconstitutional discrimination compared to 
non-covered jurisdictions than the Katz data alone 
suggests.” Pet. App. 59a. Shelby County, several of 
its supporting amici, and the dissent below disagree. 
They argue that the VRI Study is over inclusive, that

24



it misclassifies some Section 2 litigation outcomes, 
and that it relies on the wrong data.

Collectively, these critics quibble with VRI’s char­
acterization of a grand total of four decisions out of 
the 763 it analyzed. These objections to about one- 
half of one percent of the decisions analyzed hardly 
undermine confidence in the VRI Study or its conclu­
sions. Neither petitioner, its amici, nor the dissent 
below explain how any revised classification of these 
four decisions would meaningfully change the conclu­
sions of the study in any way. And in any event, 
amici respectfully submit that at least three—if not 
all four—of the challenged decisions were properly 
classified in the original study.9

25

9 The dissent below cited Brown v. Board of School Comm’rs, 
706 F.2d 1103 (11th Cir. 1983), as a case that did not involve 
modern-day “discriminatory intent.” Pet. App. 97a (Williams, 
J., dissenting). With respect, although the challenged at-large 
system had first been enacted in 1876, the district court found 
“a present purpose to dilute the black vote . . . through inten­
tional state legislative inaction.” Brown v. Moore, 428 F. Supp. 
1123, 1139 (S.D. Ala. 1976) (emphasis added); see also id. at 
1133-34 (discussing modem Board’s “lack of cooperation and 
dilatory practices”). The Eleventh Circuit affirmed without 
qualification the district court’s conclusion that “the at-large 
election system had been adopted and maintained for the pur­
pose of diluting black voting strength.” 706 F.2d at 1104, 1107 
(emphasis added).

Petitioner chides the VRI Study for having included as a 
“successful” Section 2 case the decision in Fayetteville, Cumber­
land Cty. Black Dem. Caucus v. Cumberland Cty., No. 90-2029, 
1991 W L 23590 (4th Cir. Feb 28, 1991) (per curiam); see Pet. Br. 
36 n.8. Amici believe the outcome in this case was correctly 
scored as a “success.” Plaintiffs challenged the use of five- 
member, at-large elections for county commissioners. During 
the course of the litigation, the county abandoned the chal­
lenged system, adopted a new seven-member, single-district



The State of Texas in its amicus brief criticizes 
the Court of Appeals’ decision for “refusing] to 
acknowledge or cite” a particular academic article 
that, according to Texas, “dismantled” the VRI Study. 
See Texas Amicus Br. at 22-23 (emphasis added) 
(citing Adam B. Cox & Thomas J. Miles, Judging the 
Voting Rights Act, 108 Colum. L. Rev. 1 (2008)). 
Texas itself fails to “acknowledge or cite” a published

26

commissioner system, and obtained Section 5 preclearance from 
the DOJ. Plaintiffs nevertheless pursued their challenge, and 
the Fourth Circuit language quoted by petitioner concerns 
plaintiffs’ remaining claims against the new, precleared system. 
Given the evident causal link between plaintiffs’ Section 2 claim 
and the defendant’s abandonment of the challenged system and 
adoption of a new, precleared system, VRI believes this case is 
properly scored as a “successful” Section 2 outcome.

Amicus American Unity Legal Defense Fund also splits hairs 
with VRI’s interpretations of Wesch v. Hunt, 785 F. Supp. 1491 
(S.D. Ala. 1992), and White v. Alabama, 74 F.3d 1058 (11th Cir. 
1996). See AULDF Amicus Br. at 21 n.8 and 27 n.16. AULDF 
concedes that Wesch “may represent a successful § 2 challenge,” 
id. at 21 n.8, and rightly so: In response to the Section 2 claim, 
the State of Alabama “agree [d] that a significant African Ameri­
can Congressional district should be created” pursuant to a plan 
the Court found would “provide [] African-Americans a reason­
able opportunity to elect a candidate of their choice.” 785 F. 
Supp. at 1498-99. VRI thus fairly scored this decision as a 
Section 2 “success.”

White presents a closer question. There, the Eleventh Circuit 
vacated a stipulated final judgment that would have changed 
Alabama’s system for electing state appellate judges. But the 
Eleventh Circuit did not reject the substance of the Section 2 
claim, simply the specific remedy the parties proposed—a 
federal court order that Alabama increase the size of its appel­
late courts. 74 F.3d at 1072-73. The Eleventh Circuit remanded 
to the three-judge district court for further proceedings. Id. at 
1075; see White v. Alabama, 922 F. Supp. 552, 555 (M.D. Ala. 
1996) (noting subsequent March 18, 1996 federal preclearance 
of state expansion of its appellate courts).



response to this article that detailed the many errors 
in the Cox and Miles objections. See Katz & Baldwin, 
Why Counting Votes Doesn’t Add Up, at 23.

Texas argues that the Cox and Miles article 
“show[s] that there has been a distinct downward 
trend in the rate of successful claims brought by 
section 2 plaintiffs since 1982.” Texas Amicus Br. at 
22-23. This is hardly news; the VRI Study itself 
emphasized that “[c]ourts identified violations of 
Section 2 more frequently between 1982 and 1992 
than in the years since.” VRI Study at 656. Of the 
total violations identified in the VRI database, 
“courts found 46.7% of them during the 1980s, 38% 
during the 1990s, and 15.2% since then.” Id. at 656; 
see also App. A infra.

Yet despite this decline, Section 2 plaintiffs in 
covered jurisdictions continued to win lawsuits at a 
greater rate than their counterparts in non-covered 
jurisdictions. In the first half of the study, for exam­
ple, plaintiffs in covered jurisdictions won 54% of 
their cases, while plaintiffs in non-covered jurisdic­
tions won in 46%. In the second half, plaintiffs in 
covered jurisdictions won 28% of their cases, while 
plaintiffs in non-covered jurisdictions won in 22%. 
Although the 2000-05 data were more equivocal, 
suggesting a rough equivalence of outcomes, those 
data must be adjusted to reflect (1) the population 
disparities between covered and non-covered jurisdic­
tions; (2) the disparities in relative numbers of politi­
cal subdivisions; and (3) the blocking and deterrence 
effects of Section 5 preclearance review in covered 
jurisdictions. These combined factors should have 
reduced the number of successful Section 2 outcomes 
in covered jurisdictions. Thus, even if the disparity 
in comparative success rates had narrowed in recent

27



years, a rough equivalence of outcomes between 
jurisdictions would still be evidence of the continued
need for, not obsolescence of, Section 5. See pp. 8-12

10supra.
Texas also points to the Cox and Miles article in 

arguing that “[t]he higher rate of claimant success in 
covered jurisdictions appears only at the trial level,” 
and that “section 2 claimants in covered jurisdictions 
are less successful at the appellate level than claim­
ants in non-covered jurisdictions.” Texas Amicus Br. 
at 23 (emphasis added). Just the opposite is true. As 
discussed above, the appellate courts included in the 
VRI database were “both more likely to reverse 
denials of liability and less likely to reverse violations 
than were courts in non-covered jurisdictions”; plain­
tiffs fared much better on appeal in covered than in 
non-covered areas. Katz & Baldwin, Why Counting 
Votes Doesn't Add Up, at 26. “This suggests that . . . 
violations identified in covered regions are more clear 
and less vulnerable to challenge than those found 
elsewhere.” Id. ; see pp. 13-14 supra.

The Cox and Miles article is off base because it 
measured individual judges’ votes, not individual 
case outcomes. That methodology tells us virtually 
nothing: a single-judge district court judgment “might 
represent a violation so patent that appeal would 
have been futile, and yet it yields but one vote 
compared with the four produced by a closer case 
affirmed on appeal [by a three-judge panel].” Katz & 
Baldwin, Why Counting Votes Doesn't Add Up, at 24- 
25. The VRI database contains many such un- 10

28

10 In addition, “the pace of litigation following post-census 
redistricting suggests that data from partial decades, and in­
deed, the early part of any decade may not be representative of 
the decade as a whole.” Katz, Mission Accomplished'?, at 144 n.14.



appealed single-judge decisions; “ [t]hat these appeals 
did not materialize hardly suggests that covered 
jurisdictions have fewer voting rights problems than 
non-covered ones.” Id. at 26; see id. at 26 n.10 (“Our 
claim has consistently been that these judgments, 
and the findings that support them, matter far more 
than the number of times individual judges happen 
to cast liability votes in the course of a section 2 
lawsuit.”). Counting individual judges rather than 
case outcomes also skews the analysis because 
“three-judge trial panels decided more than four 
times as many section 2 cases in non-covered jurisdic­
tions than in covered ones.” Id. at 27.11 “Judge­
counting,” in short, adds nothing to the analysis 
other than error and confusion.

Disaggregation objections. The dissent below 
argued that, when the VKI data are “disaggregate[d] 
by state,” some of the covered jurisdictions “appear 
undistinguishable from their uncovered peers” in 
terms of successful, reported Section 2 cases. Pet. 
App. 91a-93a (Williams, J., dissenting). Shelby 
County echoes this theme: “the nine fully-covered
States are only 5 of the top 10” States in “adjudicated 
Section 2 violations,” “non-covered Illinois had more 
Section 2 lawsuits filed since 1982 than all but three 
fully-covered States,” and so forth. Pet. Br. 47.

29

11 Such panels are convened to hear challenges to statewide 
and congressional redistricting plans. Many more such 
challenges were filed in non-covered jurisdictions, “precisely 
because section 5 does not operate in these regions.” Katz & 
Baldwin, Why Counting Votes Doesn’t Add Up, at 27. In covered 
jurisdictions, “section 5 objections and adjustments made in 
anticipation of such objections vastly reduced the likelihood that 
separate section 2 challenges would follow. No such screening 
occurred in non-covered jurisdictions; hence many more three- 
judge trial panels were convened.” Id.



These arguments fail for many reasons. To begin, 
this Court has emphasized that “ [i]t is irrelevant” to 
the constitutional issues that “there is evidence of 
voting discrimination” in some non-covered jurisdic­
tions. South Carolina v. Katzenbach, 383 U.S. 301, 
330-31 (1966). “Legislation need not deal with all 
phases of a problem in the same way, so long as the 
distinctions drawn have some basis in practical 
experience.” Id. at 331.

In addition, petitioner is located in a State that 
consistently ranks near the top of all States in 
Section 2 violations—whether measured in terms of 
total filings, successful filings, successful filings per 
capita, successful filings per local governmental unit, 
successful filings per million minority members, or 
other metrics. Even if some covered jurisdictions 
might be entitled to an exemption from preclearance 
on the theory that their compliance track records 
“appear indistinguishable from their uncovered peers,” 
Pet. App. 93a (Williams, J., dissenting), Shelby 
County, Alabama is not one of those jurisdictions. 
Under any metric of voting discrimination, petitioner 
is readily “[] distinguishable from [its] uncovered 
peers.” Id.

Indeed, the disaggregated data confirm that the top 
tier of States in Section 2 violations (under any 
metric) is consistently dominated by covered jurisdic­
tions. There is a core of covered jurisdictions— 
especially Alabama, Mississippi, and Louisiana—that 
nearly always rank among the top five violators in all 
categories. Even the dissent conceded that it “might 
be defensible” to continue Section 5 preclearance in 
these three States, “and possibly the covered portions 
of South Dakota and North Carolina” as well. Pet. 
App. 93a (Williams, J., dissenting).

30



Covered States like South Dakota, Texas, North 
Carolina, and Virginia often join the top tier of 
Section 2 violators depending on the choice of metric 
(South Dakota has the most successful Section 2 
outcomes per million people, Texas is Number 4 in 
successful Section 2 cases, and so forth). Under some 
metrics—such as number of filings and successful 
suits per local governmental unit—the top tier is 
especially dominated by covered jurisdictions. Be­
yond this, disaggregation reveals a situation in which 
covered jurisdictions always dominate the top tier of 
Section 2 violators; are almost always concentrated in 
the bottom third of compliant States; and almost 
never appear in the top half of compliant States 
under any metric.

Moreover, even where “covered jurisdictions appear 
indistinguishable from their uncovered peers” in 
terms of some Section 2 metrics—where “the middle- 
range covered states appear comparable to some non- 
covered jurisdictions,” Pet. App. 59a—that does not 
mean the need for Section 5 has now gone away. To 
the contrary, as the Court of Appeals emphasized, 
Section 5 itself explains why there now is an 
apparent equivalence among some covered and non- 
covered States in terms of Section 2 outcomes:

“[A]s Congress found, the mere existence of 
section 5 deters unconstitutional behavior in the 
covered jurisdictions. That is, the middle-range 
covered states appear comparable to some non- 
covered jurisdictions only because section 5’s 
deterrent and blocking effect screens out dis­
criminatory laws before section 2 litigation be­
comes necessary. Had section 5 not been in 
effect, one would expect significantly more dis­
crimination in North Carolina, South Carolina,

31



Virginia, Texas, and Georgia, all covered by 
section 5, than in the non-covered states with the 
worst records.” Id. at 59a-60a.

CONCLUSION
The VRI Study and database demonstrate that, in 

the nearly quarter of a century leading up to the 2006 
reauthorization of Section 5, Section 2 plaintiffs were 
substantially more likely to succeed in covered than 
in non-covered jurisdictions, and were significantly 
more likely to encounter practices and conditions 
associated with voting discrimination. These dispari­
ties would have been even worse in the absence of 
Section 5’s ongoing role in blocking and deterring 
potential constitutional and Section 2 violations in 
covered jurisdictions. Congress reasonably relied on 
this and other evidence in finding that, “ [dlespite the 
progress made by minorities” since 1965, “40 years 
has not been a sufficient amount of time to eliminate 
the vestiges of discrimination following nearly 100 
years of disregard for the dictates of the 15th 
amendment and to ensure that the right of all 
citizens to vote is protected as guaranteed by the 
Constitution.” 2006 Act § 2(b)(7). The decision below 
accordingly should be affirmed.

Respectfully submitted,
Lisa S. Blatt 
Charles G. Curtis, Jr.

Counsel of Record 
Anthony J. Franze 
Arnold & Porter LLP 
555 12th St., NW 
Washington, DC 20004 
(202) 942-5000 
Charles.Curtis@aporter.com
Counsel for Amici Curiae

32

mailto:Charles.Curtis@aporter.com


APPENDICES



la
APPENDIX A

Total Lawsuits and Success in 
Voting Rights Act Section 2 Litigation,

1982-2005

Covered Jurisdictions

Year Decided Total Lawsuits Success % Success
1980s 59 35 59.3%
1990s 72 27 37.5%
2000s 29 6 20.7%

Grand Total 160 68 42.5%

Noncovered Jurisdictions

Year Decided Total Lawsuits Success % Success
1980s 41 21 51.2%
1990s 84 23 27.4%
2000s 46 11 23.9%

Grand Total 171 55 32.2%
Overall8

Year Decided Total Lawsuits Success % Success
1980s 100 56 56.0%
1990s 156 50 32.1%
2000s 75 17 22.7%

Grand Total 331 123 37.2%
a The chi-square value analyzing the contingency table with 

covered/noncovered jurisdictions versus successful/unsuccessful 
grand total is 3.782 (df = 1, p = 0.052).
Source: Reproduced from Table 8.1 in Ellen D. Katz, Not 
Like the South? Regional Variation and Political Participation 
Through the Lens of Section 2, in Voting Rights Act Reauthor­
ization of 2006: Perspectives on Democracy, Participation and 
Power 215 (A. Henderson ed. 2007); see also VRI Database 
Master List (2006), available at http://sitemaker.umich.edu/ 
votingrights/files/masterlist.xls.

http://sitemaker.umich.edu/


2a
APPENDIX B

Senate Factor Findings in Post-1982 
Section 2 Litigation, of All Suits 

Considering Factors

Covered
Jurisdictions

Noncovered
Jurisdictions

Total
Lawsuits 160 100% 171 100%

Considered
Factors 105 65.6% 131 76.5%

Of Suits Considering Factors: P>%2

Found Factor 1 61 58.1% 50 38.2% 0.002
Found Factor 2 52 49.5% 53 40.5% 0.164
Found Factor 3 33 31.4% 19 14.5% 0.002
Found Factor 4 4 3.8% 6 4.6% 0.975
Found Factor 5 45 42.9% 43 32.8% 0.113
Found Factor 6 18 17.1% 15 11.5% 0.210
Found Factor 7 51 48.6% 39 29.8% 0.003
Found Factor 8 10 9.5% 10 7.6% 0.604
Found Factor 9 13 12.4% 10 7.6% 0.222
All Gingles 
Factors 30 28.6% 38 29.0% 0.941

Source: Reproduced from Table 8.2 in Ellen D. Katz, Not Like
the South'?, at 216; see also VRI Database Master List (2006).



3a
APPENDIX C

Local v. State Government Challenges 
Under Section 2, 1982-20053

Covered Noncovered
Jurisdictions Jurisdictions

Level of Gov’t Total Success Total Success
State 38 11 28.9% 58 15 25.9%
Local 122 57 46.7% 113 40 35.4%

County 47 26 55.3% 44 16 36.4%
City/Town 54 25 46.3% 55 20 36.4%
School15 21 6 28.6% 14 4 28.6%

Total 160 68 42.5% 171 55 32.2%

Level of Gov’t Test of Difference'
P>%2

State 0.739
Local 0.078
County 0.070
City/Town 0.292
School15 0.703

Total 0.052

a This figure displays the governing body challenged. Where 
suits challenged multiple governments, the highest level is 
counted.

b The chi-square value for this level of government is Yates 
continuity-corrected.

c Chi-square values for each level of government analyze 
contingency tables for covered/noncovered jurisdictions versus 
successful/unsuccessful results.
Source: Reproduced from Table 8.3 in Ellen D. Katz, Not Like
the South'?, at 217; see also VRI Database Master List (2006).





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No. 12-96

Shelby County, Alabama,

V.

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No. 12-96

In The

Supreme Court of tfje fHmtetr States

Shelby County, Alabama,

v.
Petitioner,

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

On Writ of Certiorari to the 
United States Court of Appeals 

for the District of Columbia Circuit

BRIEF OF AMICI CURIAE ELLEN D. KATZ 
AND THE VOTING RIGHTS INITIATIVE 

IN SUPPORT OF RESPONDENTS

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