Shelby County v. Holder DDC &DC Cir Opinions SCOTUS Cert Briefs and Order

    SHELBY COUNTY v. HOLDER
LDF No. 0809-002

D.D.C. & D.C. Cir. Opinions 
SCOTUS Cert Briefs & Order



DISTRICT COURT & CIRCUIT COURT OPINIONS 
SCOTUS CERTIORARI STAGE BRIEFS & ORDER

1. District Court Opinion - Shelby v. Holder, 81 I F. Supp. 2d 424 (D.D.C. 2011)

2. Circuit Court Opinion - Shelby v. Holder, 679 F.3d 848 (D.C. Cir. 2012)

3. Petition for Writ of Certiorari

4. DOJ Brief in Opposition

5. Intervenors’ Brief in Opposition

6. Petitioner’s Reply

Shelby v. Holder
LDF No. 0809-006

7. Order Granting Certiorari



424 811 FEDERAL SUPPLEMENT, 2d SERIES

to take it solely because [she] requests it— 
[she] still must make the requisite showing 
of good cause.” Nu Image, Inc. v. Does 1- 
23, 322, No. ll-cv-301, 799 F.Supp.2d 34, 
37, 2011 WL 3240562, at *1 (D.D.C. July 
29, 2011). Thus, a plaintiff must, inter 
alia, “reasonably demonstrate[ ] that [she] 
can supplement | her] jurisdictional allega­
tions through discovery.” Exponential 
Biotherapies, Inc. v. Houthoff Bururna 
N.V., 638 F.Supp.2d 1, 11 (D.D.C.2009) 
(internal quotations and citations omitted). 
Plaintiff has failed to make that demon­
stration because, as discussed above, even 
if plaintiff were able to plead jurisdictional 
facts demonstrating defendants’ contact 
with the federal government, those con­
tacts would not suffice to support a finding 
of personal jurisdiction in this case. See 
discussion supra Part II.B.3. The motion 
for discovery will therefore be denied.

III. Conclusion.
For the reasons discussed above, the 

Court will deny the motion to strike, deny 
the motion for leave to conduct discoveiy, 
and grant the motions to dismiss. Sepa­
rate orders consistent with this Memoran­
dum Opinion shall issue this date.

OH I) Eli
In accordance with the Memorandum 

Opinion issued this date, it is hereby
ORDERED that Defendant Marvin Ow­

ens’s Motion to Dismiss, ECF No. 7, is 
GRANTED; and it is

FURTHER ORDERED that all claims 
against Mr. Owens are DISMISSED.

ORDER
In accordance with the Memorandum 

Opinion issued this date, it is hereby
ORDERED that Defendant Clark V. 

Hayes’s Special Appearance Motion to Dis­
miss, ECF No. 8, is GRANTED; and it is

FURTHER ORDERED that all claims 
against Mr. Hayes are DISMISSED.

SHELBY COUNTY, ALABAMA, 
Plaintiff,

V.

Eric II. HOLDER, Jr., in his official 
capacity as Attorney General of 

the United States, Defendant.

Civil Action No. 10-0651 (JDB).

United States District Court, 
District of Columbia.

Sept. 21, 2011.
Background: County brought declaratory 
judgment action against United States At­
torney General, seeking determination that 
provisions of Voting Rights Act prohibiting 
racially discriminatoiy changes to voting 
procedures were unconstitutional. United 
States and civil rights organization inter­
vened. After inteivenors’ motion for addi­
tional discoveiy was denied, 270 F.R.D. 16, 
parties cross-moved for summaiy judg­
ment.
Holdings: The District Court, John D. 
Bates, J., held that:
(1) county established Article III standing 

to maintain action;
(2) scope of constitutional rights at issue 

were properly identified;
(3) Congress properly identified histoiy 

and pattern of unconstitutional conduct 
by covered jurisdictions that justified 
enactment of remedial measures;

(4) reauthorization of statute constituted 
eongi-uent and proportional response to 
targeted problem; and



425SHELBY COUNTS
C ite  as 811 F .S upp.i

(5) disparate geographic coverage of stat­
ute was sufficiently related to targeted 
problem.

Defendant’s motion granted.

1. Federal Civil Procedure ©=>103.2, 103.3
To establish irreducible constitutional 

minimum of Article III standing, plaintiff 
must allege: (1) injuiy in fact that is (a) 
concrete and particularized, and (b) actual 
or imminent, not conjectural or hypotheti­
cal; (2) causal connection between injury 
and conduct complained of; and (3) likeli­
hood that injury will be redressed by fa­
vorable decision. U.S.C.A. Const. Art. 3,
§ 2, cl. 1.

2. Constitutional Law ©=703
County seeking judgment that provi­

sions of Voting Rights Act prohibiting ra­
cially discriminatory changes to voting- 
procedures were unconstitutional estab­
lished Article III standing to maintain ac­
tion, where county’s allegations concerning 
its expenditure of time and money to en­
sure compliance constituted concrete and 
particularized injury caused by continued 
operation of statute, redressable by deci­
sion declaring statute facially unconstitu­
tional and permanently enjoining its en­
forcement. U.S.C.A. Const. Art. 3, § 2, cl.
1; Voting Rights Act of 1965, §§ 4(b), 5, 42 
U.S.C.A. §§ 1973b(b), 1973c.

3. Elections ©=>12(8)
County seeking declaratory judgment 

that provisions of Voting Rights Act pro­
hibiting racially discriminatory changes to 
voting procedures were unconstitutional 
was not obligated to petition for- statutory 
“bailout” in alternative to its constitutional 
challenges, where county properly deter­
mined that such petition would be futile. 
Voting Rights Act of 1965, §§ 4(a, b), 5, 42 
U.S.C.A. §§ 1973b(a, b), 1973c.

4. Constitutional Law ©=656, 657
Distinction between “as-applied” and 

“facial” challenges is that former chal-

lenges ask only that reviewing court de­
clare challenged statute or regulation un­
constitutional on facts of particular case, 
whereas latter challenges ask court to con­
clude that no set of circumstances exists 
under which statute would be valid, or that 
statute lacks any plainly legitimate sweep.

5. Constitutional Law ©=656, 657
When plaintiff brings both facial and 

as-applied challenge to a statute, court 
must first determine whether law is consti­
tutional as applied to challenging party’s 
conduct, and then only if as-applied chal­
lenge fails, determine whether it is neces­
sary to consider facial challenge.

6. Constitutional Law ©=978
District court’s consideration of coun­

ty’s facial challenge to constitutionality of 
Voting Rights Act provisions prohibiting 
racially discriminatory changes to voting 
procedures was not premature, where 
county explicitly waived its light to biing 
as-applied challenge to statute. Voting 
Rights Act of 1965, §5 4(b), 5, 42 U.S.C.A. 
§§ 1973b(b), 1973c.

7. Constitutional Law ©=4853
In reviewing Congress’s enactment of 

remedial, prophylactic legislation under 
Fourteenth Amendment, court must: (1) 
identify constitutional right that Congress 
sought to enforce when it enacted chal­
lenged legislation; (2) examine whether 
Congress identified histoiy and pattern of 
unconstitutional conduct by state that jus­
tified enactment of remedial measure; and 
(3) decide whether challenged legislation 
constitutes appropriate response to identi­
fied histoiy and pattern of unconstitutional 
conduct, i.e., whether is it congruent and 
proportional to targeted violation. 
U.S.C.A. Const.Amend. 14.

8. Constitutional Law ©=4854
Congress is more likely to be able to 

identify unconstitutional state action justi-

, ALA. v. HOLDER
d 424 (D .D .C. 2011)



426 811 FEDERAL SUPPLEMENT, 2d SERIES

fying remedial, prophylactic enforcement 
legislation, for purposes of Fourteenth 
Amendment review, when it seeks to pro­
tect against discrimination based on clas­
sification like gender, which Diggers 
heightened sci-utiny, than when it seeks to 
protect against discrimination based on 
trait such as disability, which incurs only 
minimum ‘rational basis” review. 
U.S.C.A. Const.Amend. Id.

9. Elections ©=>12(1)
District court, in considering county’s 

challenge to constitutionality of Voting 
Rights Act provision prohibiting racially 
discriminatory changes to voting proce­
dures, properly identified scope of consti­
tutional rights that Congress sought to 
enforce within statute; provision at issue 
not only sought to protect fundamental 
right to vote under Fifteenth Amendment, 
but also Fourteenth Amendment equal 
protection rights with respect to racial dis­
crimination. U.S.C.A. Const.Amends. 14, 
15; Voting Rights Act of 1965, § 5, 42 
U.S.C.A. § 1973c.

10. Elections ©=9
Congress, in reauthorizing Voting 

Rights Act provision prohibiting racially 
discriminatoiy changes to voting proce­
dures, in contravention of Fourteenth and 
Fifteenth Amendments, properly identified 
histoiy and pattern of unconstitutional 
conduct by covered jurisdictions that justi­
fied enactment of remedial measures; leg­
islative record amassed by Congress in 
support of reauthorization included signifi­
cant evidence as to continued racial dispar­
ities in voter registration, low numbers of 
minority elected officials, and objections to 
voting procedures in covered jurisdictions. 
U.S.C.A. ConsLAmends. 14, 15; Voting- 
Rights Act of 1965, § 5, 42 U.S.C.A.
§ 1973c.

11. Elections <5̂ 9
Congress’s reauthorization of Voting 

Rights Act provision prohibiting racially

discriminatory changes to voting proce­
dures, in contravention of Fourteenth and 
Fifteenth Amendments, constituted con­
gruent and proportional response to tar­
geted problem; rather than making provi­
sion permanent, Congress chose to extend 
statutory preclearance requirement for 25 
years and provide for reconsideration of 
statute’s temporary provisions in 15 years, 
as well as maintaining “bailout” provision 
for qualifying jurisdictions. U.S.C.A.
Const.Amends. 14, 15; Voting Rights Act 
of 1965, §§ 4(a), 5, 42 U.S.C.A.
Sif 1973b(a), 1973c.

12. Elections <3=9 
States <3=4.16(1)

Disparate geographic coverage of Vot- 
ing Rights Act provision prohibiting racial­
ly discriminatory changes to voting proce­
dures, in contravention of Fourteenth and 
Fifteenth Amendments, was sufficiently 
related to targeted problem to pass muster 
under Tenth Amendment; evidence before 
Congress indicated that voting discrimina­
tion problems remained more prevalent in 
jurisdictions historically subject to statuto­
ry preclearance requirements. U.S.C.A. 
Const.Amends. 10, 14, 15; Voting Rights 
Act of 1965, §§ 4(b), 5, 42 U.S.C.A. 
§§ 1973b(b), 1973c.

Bert W. Rein, Brendan J. Morrissev, 
Thomas R. McCarthy, William S. Conso- 
voy, Wiley Rein & Fielding LLP, Wash­
ington, DC, for Plaintiff.

Mark A. Posner, Lawyers’ Committee 
for Civil Rights, Richard Alan Dellheim, 
Ernest Alan McFarland, Jared Michael 
Slade, Justin S. Weinstein-Tull, Samuel 
Robert Bagenstos, U.S. Department of 
Justice, Washington, DC for Defendant.



SHELBY COUNTY, ALA. v. HOLDER
C ite  as 8 II F .S u p p .2 d  424 (D .D .C. 2011)

427

MEMORANDUM OPINION

JOHN D. BATES, District Judge.
Section 5 of the Voting Rights Act of 

1965 (“the Act”) prevents certain “cov­
ered” jurisdictions from implementing any 
change to voting practices or procedures 
unless and until the jurisdiction demon­
strates to federal, authorities that the 
change “neither has the purpose nor will 
have the effect of denying or abridging the 
right to vote on account of race or color.” 
42 U.S.C. § 1973c. Praised by some as 
the centerpiece of the most effective civil 
lights legislation ever enacted, Section 5 
has been condemned by others as an im­
permissible federal encroachment on state 
sovereignty. In 2009, the Supreme Court 
addressed Congress’s 2006 extension of 
Section 5 and, although avoiding the mer­
its of a facial constitutional challenge to 
Section 5’s “preclearance” obligation, none­
theless expressed concern about the provi­
sion’s continued vitality, noting thal “ft]he 
Act’s preclearance requirements and its 
coverage formula raise serious constitu­
tional questions.” Niv. Austin Mun. Util. 
I)ist. No. One v. Holder, 557 U.S. 193, 129 
S.Ct. 2504, 2513, 174 L.Ed.2d 140 (2009) 
(“Niv. Austin II ”).

Today, those serious constitutional ques­
tions can no longer be avoided. Shelby 
County, Alabama (“Shelby County” or 
“plaintiff”), a jurisdiction covered by Sec­
tion 4(b) of the Act, 42 U.S.C. $ 1973b(b), 
has brought this suit against the Attorney 
General (“defendant”) seeking a deelarato- 
iy judgment that Section 5 and Section 
4(b) are facially unconstitutional, and a 
permanent injunction prohibiting defen­
dant from enforcing these provisions. 
Compl. H1I 1, 44(a)(b). Specifically, Shelby 
County alleges that Section 4(b)’s coverage 
formula and Section 5’s preclearance obli­
gation for covered jurisdictions exceed 
Congress’s enforcement authority under 
the Fourteenth and Fifteenth Amend­
ments, and violate the principle of “equal

sovereignty” embodied in the Tenth 
Amendment and Article IV of the U.S. 
Constitution. Id. HH 36—43.

This Court is mindful that “judging the 
constitutionality of an Act of Congress is 
‘the gravest and most delicate duty that 
lit] is called on to perform.’ ” Nw. Austin  
II, 129 S.Ct. at 2513 (quoting Blodgett v. 
Holden, 275 U.S. 142, 147-48, 48 S.Ct. 105, 
72 L.Ed. 206 (1927) (Holmes, J., concur­
ring)). That duty is all the more sensitive 
where, as here, the challenged statute 
seeks to enforce the core Fifteenth 
Amendment prohibition against denial of 
the franchise on the basis of race. The 
Fifteenth Amendment provides that “ft]he 
right of citizens of the United States to 
vote shall not be denied or abridged by the 
United States or by any State on account 
of race, color, or previous condition of ser­
vitude.” U.S. C onst , amend. XV, $ 1. Yet 
95 years after the Amendment’s ratifica­
tion, the struggle for the realization of this 
constitutional guarantee was far from com­
plete. See H.R.Rep. No. 89-439 (1965), 
1965 U.S.C.C.A.N. 2437, 2439. In 1965, 
literacy tests, poll taxes, and other devices 
were still being “widely used” in certain 
regions of the countiy as part of “a calcu­
lated plan to deprive Negroes of their 
right to vote.” Id. at 2443. When tradi­
tional litigation proved ineffective to coun­
ter “those determined to circumvent the 
guarantees of the 15t.h amendment,” id. at 
2441, Congress decided that “the wrong to 
our citizens is too serious—the damage to 
our national conscience is too great not to 
adopt more effective measures than exist 
today,” id. at 2442. Hence, almost a cen­
tury after the Fifteenth Amendment was 
ratified, Congress passed the Voting 
Rights Act of 1965—with Section 5 at its 
core—in order “to make the guarantees of 
the Fifteenth Amendment finally a reality 
for all ciLizens.” Allen v. State Bd. of 
Elections, 393 U.S. 544, 556, 89 S.Ct. 817, 
22 L.Ed.2d 1 (1969). Congress reauthor­



428 811 FEDERAL SUPPLEMENT, 2d SERIES

ized the Act three times (in 1970, 1975 and 
1982), and the Supreme Court upheld each 
reauthorization against constitutional chal­
lenges. See Nw. Austin II, 129 S.Ct. at 
2510.

Certainly, today Section 5’s continued 
constitutionality “must be judged with ref­
erence to the historical experience which it 
reflects.” South Carolina v. Katzenbach, 
383 U.S. 301, 308, 86 S.Ct. 803, 15 L.Ed.2d 
769 (1966). But the Supreme Court has 
also made clear that history alone cannot 
provide a valid basis for upholding Section 
5 indefinitely; rather, “the Act imposes 
cuirent burdens and must be justified by 
current needs.” Nw. Austin II, 129 S.Ct. 
at 2512. This Court has now carefully re­
viewed the extensive 15,000—page legisla­
tive record that Congress amassed in sup­
port of its 2006 reauthorization of Section 
5 and Section 4(b). It is, of course, Con­
gress that is charged in the first instance 
under the Fifteenth Amendment with for­
mulating the legislation needed to enforce 
it. Id. at 2513. Bearing in mind both the 
historical context and the extensive evi­
dence of recent voting discrimination re­
flected in that virtually unprecedented leg­
islative record, the Court concludes that 
“current needs”—the modern existence of 
intentional racial discrimination in vot­
ing—do, in fact, justify Congress’s 2006 
reauthorization of the preclearance re­
quirement imposed on covered jurisdic­
tions by Section 5, as well as the preseiva- 
tion of the traditional coverage formula 
embodied in Section 4(b). Applying the 
standard of review articulated by the Su­
preme Court in City of Boeme v. Flores, 
521 U S . 507, 117 S.Ct. 2157, 138 L.Ed.2d 
624 (1997), this Court finds that Section 5 
remains a “congruent and proportional 
remedy” to the 21st century problem of 
voting discrimination in covered jurisdic­
tions.

BACKGROUND

I. The History of the Voting Rights 
Act of 1965

The Voting Rights Act of 1965 “was 
designed by Congress to banish the blight 
of racial discrimination in voting.” Kat­
zenbach, 383 U.S. at 308, 86 S.Ct. 803. 
Although the Fifteenth Amendment guar­
anteed African-American citizens the right 
to vote as early as 1870, southern states 
quickly responded by creating a series of 
voting qualifications and devices to perpet­
uate black disenfranchisement. See id. at 
310—311, 86 S.Ct. 803; see also H.R.Rep. 
No. 89-439, at 2439-40. None of this new 
voting legislation mentioned race on its 
face, but it was nonetheless “motivated 
entirely and exclusively by a desire to 
exclude the Negro from voting.” 
H.R.Rep. No. 89U39, at 2443, 2451. 
Southern states imposed poll taxes, which 
disproportionately burdened African- 
Americans as a result of their compara­
tively lower incomes. See id. at 2451-53. 
They enacted literacy requirements as a 
precondition to voting “based on the fact 
that as of 1890 . . . more than two-thirds of 
the adult Negroes [in southern states] 
were illiterate while less than one-quarter 
of the adult whites were unable to read or 
write.” Katzenbach, 383 U.S. at 311, 86 
S.Ct. 803. And they adopted alternate 
tests, such as grandfather clauses and 
property qualifications, in order to “assure 
that white illiterates would not be deprived 
of the franchise.” Id.

Not only were these tests intentionally 
discriminatory in their design, but south­
ern voting officials were given unfettered 
discretion to administer them in a discrimi­
natory fashion. Officials would refuse to 
accept poll taxes from blacks seeking to 
pay them, or would withhold poll tax ex­
emption certificates from otherwise-quali­
fied black applicants. See H.R.Rep. No. 
89^439, at 2452. They would provide



SHELBY COUNTY, ALA. v. HOLDER
C ite  as 81 I F .S upp .2 (l 424 (D .D .C . 2011)

429

whites with “easy versions” of literacy 
tests or- excuse them altogether, but de­
mand that blacks pass “difficult versions 
. . . without the slightest error.” Katzen- 
bach, 383 U.S. at 312-13, 86 S.Ct. 803. 
Other voting qualifications—including the 
infamous “good-morals requirement” and 
“constitutional interpretation” tests—were 
so inherently “vague and subjective” that 
they “constituted an open invitation to 
abuse at the hands of voting officials.” Id.

In addition to these methods of direct 
disenfranchisement, southern officials be­
fore 1965 also enacted laws designed to 
dilute black voting strength, if and when 
blacks were able to register and cast bal­
lots. Specifically, southern officials “ger- 
rymandered election districts, instituted 
at-large elections, annexed or deannexed 
land as it fit their racial and partisan 
interests, and required huge bonds of of­
ficeholders.” J. Morgan Kousser, The 
Strange, Ironic Career of Section 5 of the 
Voting Rights Act, 1965-2007, 86 T ex . L .  
R f.v 667, 678-79 (2008); see also To Ex­
amine the Impact and Effectiveness of the 
Voting Rights Act, Hearing Before the 
Subcomm. on the Constitution of the. H. 
Comm, on the Judiciary, 109t.h Cong. 1138 
(Oct. 18, 2005) (“Impact and Effective­
ness ”) (Chandler Davidson and Bernard 
Grofman, eds., Quiet Revolution in the 
South: The Impact of the Voting Rights 
Act 1965-1990 (Princeton University Press 
1994)). These tactics aimed at reducing 
the ability of blacks to elect candidates of 
their choice—sometimes referred to as 
“[disenfranchisement by indirection”— 
were wndely employed throughout the 
South in the late nineteenth century, and 
they reemerged during the “Second Re­
construction” of the mid-twentieth century 
as well. See 1 Voting Rights Act: Evi­

ls Reversing the lower c o u r t ’s dismissal of the 
case, the Suprem e Court emphasized that the 
Fifteenth Amendment "nullifies sophisticated 
as well as s imple-minded modes of discrimi-

dence of Continued Need, Hearing Before 
the Subcomm. on the Constitution of the 
H. Comm, on the Judiciary, 109th Cong. 
142 (Mar. 8, 2006) (hereinafter, “1 Evi­
dence of Continued Need ”) (National 
Commission on the Voting Rights Act, 
Protecting Minority Voters: The Voting 
Rights Act at Work 1982-2005 (Feb. 2006) 
(hereinafter, “Nat’l Comm’n Report”)); see 
also An Introduction to the Expiring Pro­
visions of the Voting Rights Act and Legal 
Issues Relating to Reauthorization, Hear­
ing Before the S. Comm, on the Judiciary, 
109th Cong. 206 (May 9, 2006) (“Introduc­
tion to Expiring Provisions ”) (prepared 
statement of Chandler Davidson).

The Supreme Court eventually respond­
ed to these attempts to evade the require­
ments of the Reconstruction Amendments 
by striking down some of the most egre­
gious practices used to impede blacks from 
effectively exercising their right to vote. 
See Katzenbach, 383 U.S. at 311-12, 86 
S.Ct. 803 (internal citations omitted). The 
Court invalidated grandfather clauses in 
1915, see Guinn v. United States, 238 U.S. 
347, 35 S.Ct. 926, 59 L.Ed. 1340 (1915); 
Mgers v. Anderson, 238 U.S. 368, 35 S.Ct. 
932, 59 L.Ed. 1349 (1915); outlawed the 
so-called ‘Vhite primary” in 1944, see 
Smith v. Allwright, 321 U.S. 649, 64 S.Ct. 
757, 88 L.Ed. 987 (1944); and condemned 
racial gerrymandering in 1960, U'hen the 
city of Tuskegee, Alabama, attempted to 
transform its square-shape into “a strange­
ly irregular twenty-eight-sided figure,” 
which had the effect of removing “from the 
city all save four or five of its 400 Negro 
voters while not removing a single white 
voter or resident,” Gomillion v. Lightfoot, 
364 U.S. 339, 341, 81 S.Ct. 125, 5 L.Ed.2d 
110 (I960).'

nation .” Gomillion, 364 U.S. at 342, 81 S.Ct.
125 (internal  quotation marks and citation
omitted).



430 811 FEDERAL SUPPLEMENT, 2d SERIES

Congress also responded to southern 
states’ sophisticated disenfranchisement 
strategies by enacting civil rights legisla­
tion in 1957, 1900, and 19G4, which sought 
to “facilitatfe] case-by-case litigation 
against voting discrimination.” Katzen- 
bach, 383 U.S. at 313, 86 S.Ct. 803. Rut it 
soon became apparent that “case-by-case” 
litigation would not be sufficient to protect 
African-Americans’ access to the ballot. 
See H.R.Rep. No. 89-439, at 2440-41. Not 
only was litigation expensive and slow, but 
even where it proved successful, southern 
officials would often ignore court orders, 
“close[ J their registration offices to freeze 
the voting rolls,” or “merely switch! ] to 
discriminatory devices not covered by the 
federal decrees.” Katzenbach, 383 U.S. at 
314, 86 S.Ct. 803. As Congress explained, 
“[bjarring one contrivance too often has 
caused no change in result, only in meth­
ods.” H.R.Rep. No. 89-439, at 2441. 
Hence, in 1965 Congress decided that 
“sterner and more elaborate measures” 
were needed to combat the “insidious and 
peivasive evil which had been perpetrated 
in certain parts of our country through 
unremitting and ingenious defiance of the 
Constitution.” Katzenbach, 383 U.S. at 
309, 86 S.Ct. 803.

To craft these measures effectively, the 
Senate and House Committees on the Ju- 
diciaiy held hearings for nine days, during 
which they discussed 122 proposed voting 
rights bills and heard testimony from 67 
witnesses. See id.; see also H.R.Rep. No. 
89—439, at 2438. The House debated the 
legislation for three full days, while the 
Senate discussed the Act for almost a 
month. See Katzenbach, 383 U.S. at 308, 
86 S.Ct. 803. Ultimately, when it came 
time to vote, “the verdict of both chambers 
was overwhelming”: the Voting Rights Act 
of 1965 passed by a margin of 328-74 in 
the House, and 79-18 in the Senate. Id.; 
see also Voting Rights Act of 1965 (“1965 
Act”), Pub. L. No. 89-110, 79 Stat. 437

(codified as amended at 42 U.S.C. § 1973 
et seq ).

The Act’s basic prohibition against racial 
discrimination in voting is contained in 
Section 2, which provides that “[n]o voting 
qualification or prerequisite to voting or 
standard, practice, or procedure shall be 
imposed or applied by any State or politi­
cal subdivision 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.” 42 U.S.C. 
§ 1973. Although Section 2 echoes the 
language of the Fifteenth Amendment, at 
least since 1982 it has been interpreted to 
prohibit a broader category of conduct 
than that which the Amendment itself pro­
scribes, as it forbids all electoral practices 
with discriminatory “results,” not just 
those enacted with a discriminatory pur­
pose. Com,pare City of Mobile v. Bolden, 
446 U.S. 55, 62, 100 S.Ct. 1490, 64 L.Ed.2d 
47 (1980) (holding that Section 2 merely 
restates “the prohibitions already con­
tained in the Fifteenth Amendment” and 
that “racially discriminatory motivation is 
a necessary ingredient of a Fifteenth 
Amendment violation”) with S.Rep. No. 
97—117, at 28 (1982), 1982 U.S.C.C.A.N. 
177, 206 (explaining Congress’s intent to 
amend Section 2 in response to City of 
Mobile to make clear that a plaintiff can 
establish a Section 2 violation “without 
proving any kind of discriminatory pur­
pose"). Other provisions of the Voting 
Rights Act ban poll taxes, 42 U.S.C.
S 1973h, prohibit voter intimidation and 
coercion, 42 U.S.C. § 1973i(b), and estab­
lish civil and criminal sanctions for the 
deprivation of rights secured by the Act, 
42 U.S.C, § 1973j.

In addition to these permanent provi­
sions—which apply nationwide—the Act 
sets forth “a complex scheme of stringent 
remedies aimed at areas where voting dis­
crimination has been the most flagrant.”



SIIELHY COUNTY, ALA. v. HOLDER
C ite  as 811 F .S u p p  2d 424 (D .I).C . 2011)

431

Katzenbach, 383 U.S. at 315, 86 S.Ct. 803. 
These targeted provisions are temporary, 
and only apply to jurisdictions that are 
“covered” under Section 4(b). For exam­
ple, Section 4(a) of the Act bans the use of 
voting tests in all covered jurisdictions, see 
42 U.S.C. § 1973b(a), while Section 8 au­
thorizes the Attorney General to send fed­
eral observers to enter polling places and 
monitor elections in covered jurisdictions 
when “necessary to enforce the guarantees 
of the 14th or- 15th amendment,” 42 U.S.C. 
§ 1973f(a)(2); see also H.R.Rep. No. 109— 
478, at 91 (2006).2

Section 5, however-, remains the most 
innovative—and the most controversial—of 
the Act’s targeted, temporary provisions. 
Under Section 5, a covered jurisdiction 
cannot make any changes to its voting 
qualifications, standards, practices, or pro­
cedures unless those changes are first 
“submitted to and approved by a three- 
judge Federal District Court in Washing­
ton, D.C., or the Attorney General.” See 
Nw. Austin II, 129 S.Ct. at 2509; 42 
U.S.C. § 1973c. Preclearance under Sec­
tion 5 will only be granted if a jurisdiction 
can show that its proposed voting change 
“neither ‘has the purpose nor will have the 
effect of denying or abridging the right to 
vote on account of race or color.’ ” Niv. 
Austin II, 129 S.Ct. at 2509 (quoting 42 
U.S.C. 5 1973e(a)).

Section 5 constituted a direct response 
to the “common practice in some jurisdic­
tions of staying one step ahead of the 
federal courts by passing new discrimina­
tory voting laws as soon as the old ones 
had been strack down.” Beer v. United 
States, 425 U.S. 130, 140, 96 S.Ct. 1357, 47 
L.Ed.2d 629 (1976). Prior to 1965, such 
novel methods of minority disenfranchise­
ment would continue to operate “until the

2. Under Section 3(a) of the Act, federal ob-
se tvers may also be assigned to non-covered
jurisdictions where it is deemed “appropriate
to enforce the voting guarantees of the four-

Justice Department or private plaintiffs 
were able to sustain the burden of proving 
that the new law, too, was discriminatory.” 
Id. But with the passage of Section 5, 
Congress “shift[ed] the advantage of time 
and inertia from the perpetrators of the 
evil to its victim,” Katzenbach, 383 U.S. at 
328, 86 S.Ct. 803. Rather than requiring 
minority voters to sue to challenge dis­
criminatory voting practices after their im­
plementation, Section 5 places the burden 
on covered jurisdictions to show their vot­
ing changes are nondiseriminatory before 
those changes can be put into effect. See 
id.

If a jurisdiction covered by Section 5 
chooses to submit its proposed electoral 
change to the Attorney General for pre­
clearance, and the Attorney General does 
not interpose an objection to the change 
within 60 days, the change may be imple­
mented as proposed. See 42 U.S.C. 
§ 1973c(a); see also City of Rome v. Unit­
ed States, 446 U.S. 156, 170, 100 S.Ct. 
1548, 64 L.Ed.2d 119 (1980). If the Attor­
ney General does interpose an objection, 
the submitting jurisdiction “may at any 
time request the Attorney General to re­
consider an objection,” see 28 C.F.R. 
S 51.45(a), or it may institute a declaratory 
judgment action before a three-judge pan­
el of this Court, seeking “de novo consider­
ation of whether the method of election 
violates rights protected by the Voting 
Rights Act or the Constitution,” Cnty. 
Council of Sumter Cnty. v. United States, 
555 F.Supp. 694, 706-07 (D.D.C.1983) 
(three-judge court); see also City of Rome 
v. United States, 450 F.Supp. 378, 381-82 
(D.D.C.1978) (three-judge court), affd, 446 
U.S. 156, 100 S.Ct. 1548, 64 L.Ed.2d 119 
(1980) (explaining that “even if . . .  the 
Attorney General objects to certain pro-

teenth o r  fifteenth am endm ent ."  See 42
U.S.C. § 1973a(a); see also  H.R.Rep. No.
109-478. at 91.



432 811 FEDERAL SUPPLEMENT, 2d SERIES

posed electoral changes, the applicant-ju­
risdiction can always seek . . .  a declarato­
ry judgment from a three-judge court in 
this District .. 28 C.F.R. § 51.11 (not­
ing that “[s]ubmission to the Attorney 
General does not affect the light of the 
submitting authority to bring an action in 
the U.S. District Court for the District of 
Columbia for a declaratory judgment”). 
However, if the jurisdiction does not re­
ceive federal preclearance from either the 
Attorney General or a three-judge panel of 
this Court, the change to its voting prac­
tice or procedure may not be implemented.

Section 4(b) establishes the formula that 
determines which jurisdictions are subject 
to Section 5’s preclearance requirements 
(and the other temporary provisions of the 
Act). As originally enacted, a jurisdiction 
was “covered” under' Section 4(b) if it 
maintained a voting test or device as of 
November 1, 19G4, and had less than 50% 
voter registration or turnout in the 19G4 
presidential election. See 1965 Act § 4(b)."' 
Congress found that the combined pres­
ence of one of these “tests or devices” and 
low voter registration or turnout in a par­
ticular jurisdiction made it “a strong prob­
ability that low registration and voting are 
a result of racial discrimination in the use 
of such tests.” H.R.Rep. No. 89-439, at 
2444. The jurisdictions originally covered 
by this formula were Alabama, Georgia, 
Louisiana, Mississippi, South Carolina, and 
Virginia. See 28 C.F.R. pt. 51 app. Thir­
ty-nine counties in North Carolina and one 
county in Arizona also qualified for cover­
age as separately designated political sub­
divisions. Id.

It was no coincidence that the six states 
or iginally covered in their entirety by Sec­
tion 4(b)—and therefore subject to pre- 3

3. A voting “test o r  device" was defined by 
statute as a requirement that a person “(I)  
dem onstra te  the abilitv to read, write, under­
stand, or  interpret any matter, (2) dem on­
strate any educational achievement or  his

clearance under Section 5—were those 
southern states with the worst historical 
records of racial discrimination in voting. 
The drafters of the Act purposefully de­
signed its coverage formula “to pick up 
the core Southern states that had been 
bastions of Jim Crow.” Introduction to the 
Expiring Provisions 221 (statement of 
Samuel Issacharoff). As one scholar has 
explained, “those who wrote the legisla­
tion knew the states they wanted to ‘cov­
er’ and, by a process of trial and error, 
determined the participation level that 
would single them out.” 1 Voting Rights 
Act: Section 5 of the Act-H istory, Scope, 
and Pmyose, Hearing before the Sub- 
comm. on the Constitution of the H. 
Comm, on the Judiciary, 109th Cong. 68 
(Oct. 25, 2005) (“1 History, Scope, & Pur­
pose ”) (Abigail Thernstrom, Whose Votes 
Count? Affirmative Action and Minority 
Rights (Harvard University Press 1987)). 
The reverse-engineered, percentage-based 
“trigger” for coverage under the Act was, 
in other words, “a formally neutral device 
for- capturing a more historically based 
truth.” The Continuing Need for Section 
5 Pre-Clearance, Hearing before the S. 
Comm, on the Judiciary, 109th Cong. 99 
(May 16, 2006) (“Continuing Need") (re­
sponses of Pamela S. Karlan to questions 
submitted by Senators Leahy, Kennedy, 
Kohl, Cornyn, and Coburn) (“Karlan Re­
sponses”).

But Congress also recognized the poten­
tial that Section 4(b)’s coverage formula 
would be over- or under-inclusive, and 
hence created mechanisms whereby juris­
dictions could “bail out” of or “bail-in” to 
Section 5’s requirements. See 1965 Act 
§ 4(a), § 3(c). In order to successfully 
“bail ’out” under the version of Section

knowledge of any part icular  subject, (3) pos­
sess good moral  character ,  or  (4) prove his 
qualifications by the voucher of registered 
voters or  members of any other class " Id  
§ 4(c).



SHELBY COUNTY, ALA. v. HOLDER
C ite  as  811 F .S u p p .2 d  424 (D .D .C . 2011)

433

4(a) now in effect, a jurisdiction must ob­
tain a declaratory judgment from a three- 
judge court confirming that “for the previ­
ous ten years it has not used any forbid­
den voting test, has not been subject to 
any valid objection under § 5, and has not 
been found liable for other voting lights 
violations.” Nw. Austin II, 129 S.Ct. at 
2509. The jurisdiction must also show 
“that it has ‘engaged in constructive ef­
forts to eliminate intimidation and harass­
ment of voters,’ and similar measures.” 
Id, (quoting 42 U.S.C. $ 1973b(a)(l)(A)- 
(F)). By the same token, a court can 
require a jurisdiction to “bail-in” to the re­
quirements of Section 5 if it finds that “vi­
olations of the fourteenth or fifteenth 
amendment justifying equitable relief have 
occurred within the territory of such State 
or political subdivision.” 42 U.S.C. 
§ 1973a(c). Specifically, a court pi-esiding 
over a voting discrimination suit against a 
state or political subdivision may retain 
jurisdiction over the suit “for such a peri­
od as it may deem appropriate,” and may, 
during that time, require that the defen­
dant-jurisdiction be subject to preclear­
ance. Id.

Shortly after Congress enacted the Vot­
ing Rights Act, South Carolina brought 
suit challenging the constitutionality of 
Section 5’s preclearance requirement, Sec­
tion 4(b)’s coverage formula, and several of 
the Act’s other temporary provisions, on 
the grounds that they exceeded Congress’s 
Fifteenth Amendment enforcement au­
thority and violated “[t]he doctrine of the 
equality of the states.” Katzenbach, 383 
U.S. at 323, 328, 8G S.Ct. 803. Rejecting 
these arguments, the Supreme Court ex­
plained that “[a]s against the reserved 
powers of the States, Congress may use 
any rational means to effectuate the con­
stitutional prohibition of racial discrimina­
tion in voting.” Id, at 325, 86 S.Ct. 803. 
Although recognizing that Section 5 “may 
have been an uncommon exercise of con­
gressional power,” the Court noted that

“exceptional conditions can justify legisla­
tive measures not otherwise appropriate.” 
Id. at 334, 86 S.Ct. 803. With respect to 
the coverage fonnula in Section 4(b), the 
Cour-t found that Congress had considered 
“reliable evidence of actual voting discrimi­
nation in a great majority of the States . . . 
affected by the . . .  Act,” and had created 
a formula that was “relevant to the prob­
lem of voting discrimination.” Id. at 329, 
86 S.Ct. 803. “No more was required,” the 
Court said, “to justify the application to 
these areas of Congress’ express powers 
unde)' the Fifteenth Amendment.” Id. at 
330, 86 S.Ct. 803.

Although Section 5 was originally in­
tended to be in effect for only five years, 
Congress has reauthorized Section 5 on 
four occasions—first in 1970 (for five 
years), then in 1975 (for seven years), 
again in 1982 (for 25 years), and most 
recently in 2006 (for 25 years). See Nw. 
Austin II, 129 S.Ct. at 2510. When Sec­
tion 5 was reauthorized in 1970 and again 
in 1975, Section 4(b)’s coverage formula 
was amended each time, first to include (1) 
jurisdictions that maintained a voting test 
or device as of November 1, 1968, and had 
less than 50% voter registration or turnout 
in the 1968 pr esidential election; and then 
to add (2) jurisdictions that maintained a 
voting test or device as of November 1, 
1972, and had less than 50% voter registra­
tion or turnout in the 1972 presidential 
election. See Pub. L. No. 91-285, 84 Stat. 
314, 315 (1970) (“1970 Amendments”); 
Pub. L. No. 94-73, 89 Stat. 400, 401 (1975) 
(“1975 Amendments”). In the 1975 
Amendments, Congress also added Section 
4(0 to the Act, which bars voting discrimi­
nation against language minorities and ex­
pands the definition of “test or device” in 
Section 4 to include the provision of En­
glish-only voting materials in jurisdictions 
where more than 5% of the voting-age 
population are members of a single lan­
guage minority. See 1975 Amendments



434 811 FEDERAL SUPPLEMENT, 2d SERIES

§ 203, 89 Stat. at 401-02 (codified as 
amended at 42 U.S.C. § 1973b(f)).

Five years after the enactment of the 
1975 Amendments, the Supreme Court 
was again confronted with a challenge to 
the constitutionality of Section 5, and con- 
finned that the provision’s reauthorization 
constituted a peimissible exercise of Con­
gress’s Fifteenth Amendment enforcement 
authority. See City of Rome, 446 U.S. at 
182, 100 S.Ct. 1548. Just as Shelby Coun­
ty has argued here with respect to the 
2006 reauthorization of Section 5, Rome, 
Georgia, argued there that “even if the Act 
and its preclearance requirement were ap­
propriate means of enforcing the Fifteenth 
Amendment in 1965, they had outlived 
their usefulness by 1975, when Congress 
extended the Act for another seven years.” 
446 U.S. at 180, 100 S.Ct. 1548. The Su­
preme Court, however, declined Rome’s 
“invitation to overrule Congress’ judgment 
that the 1975 extension was warranted.” 
Id. Acknowledging the significant gains 
that had been made in minority political 
participation since 1965, the Court none­
theless expressed concern that “ ‘[a]s reg­
istration and voting of minority citizens 
increases [sic ], other measures may be 
resorted to which would dilute increasing 
minority voting strength.’ ” Id. at 181, 100 
S.Ct. 1548 (quoting H.R.Rep. No. 94-196, 
at 10-11 (1975)). The Court emphasized 
that the Voting Rights Act had been enact­
ed to remedy nearly a century of racial 
discrimination in voting, and that the 1975 
extension of the Act’s temporary provi­
sions occurred just ten years after the 
Act’s passage. Id., at 182, 100 S.Ct. 1548. 
Thus viewed, the Court found “Congress’s 
considered determination that at least an­
other' 7 years of statutory remedies were 
necessaiy to counter the perpetuation of 
95 years of pervasive voting discrimina­
tion” to be both “unsurprising and unas­
sailable.” Id.

Two years after City of Rome, Congress 
reauthorized Section 4(b) and Section 5 a 
third time, and in so doing liberalized the 
procedures for bailout in several signifi­
cant ways. Prior to 1982, only covered 
states (such as Alabama) or separately- 
covered political subdivisions (such as indi­
vidual North Carolina counties) were eligi­
ble to seek bailout—even though all politi­
cal subdivisions xoithin covered states were 
required to seek preclearance for their 
proposed electoral changes. See Nw. Aus­
tin Mun. Util. Dist. No. One v. Mukasey, 
573 F.Supp.2d 221, 227-28 (D.D.C.2008) 
(“Nw. Austin I ”), rev'd and remanded, 
Nw. Austin II, 557' U.S. 193, 129 S.Ct. 
2504, 174 L.Ed.2d 140 (2009). After the 
1982 Amendments, political subdivisions 
within covered states (such as, for exam­
ple, Shelby County) could themselves peti­
tion for bailout. See Pub. L. No. 97-205 
§ 2(b)(2), 96 Stat. 131, 131 (“1982 Amend­
ments”) (codified as amended at 42 U.S.C.
S 1973b(a)(l)). Moreover, the 1982 
Amendments changed the substantive cri­
teria for bailout so that jurisdictions with 
“clean” voting rights records over the pre­
vious ten years were bailout-eligible; un­
der prior versions of the Act, there had 
been no such “bailout opportunity for ju ­
risdictions that eliminated discriminatory 
voting tests and practices that [had been] 
used at the time of initial coverage.” Nw. 
Austin I, 573 F.Supp.2d at 228 (internal 
quotation marks and citation omitted) 
(brackets in original). In this manner, the 
1982 Amendments created an incentive for 
“those jurisdictions with posH965 histo­
ries of discrimination . . .  to improve their 
voting rights records.” Id.

The 1982 Amendments also extended 
the Act’s temporaiy provisions for the 
longest period of time to date. Whereas 
the 1970 and 1975 Amendments had ex­
tended the Act’s temporaiy provisions for 
only five and seven years, respectively, the 
1982 Amendments extended Section 5 and



435SHELBY COUNTY, ALA. v. HOLDER
C ite  as  8 1 1 F .S u p p .2 d  424 (IJ D C. 2011)

Section 4(b) for a full 25 years. See Nw. 
Austin 11, 129 S.Ct. at 2510. The 1982 
Amendments did not, however, change the 
coverage formula in Section 4(b). See 
1982 Amendments, 96 Stat. at 131-133.

II. The 2006 Reauthorization of Sec­
tion 5 and Section 4(h)

As a result of the 25 year extension 
imposed by the 1982 Amendments, Section 
5 and the Act’s other temporary provisions 
were set to expire in 2007. Hence, in the 
fall of 2005, the House Committee on the 
Judiciary began to examine “the effective­
ness of the temporary provisions of the 
VRA over the last 25 years” in order to 
determine whether another renewal of the 
Act’s temporary provisions was warranted. 
See. II.R.Rep. No. 109^178, at 5. The result 
was “one of the most extensive legislative 
records in the Committee on the Judicia­
ry’s history.” Id.

From October 2005 through May 2006, 
the House Judiciary Committee held ten 
oversight healings and two legislative 
healings before the Subcommittee on the 
Constitution, at which it heard from 46 
witnesses and assessed over 12,000 pages 
of testimony, documentaiy evidence, and 
statistical analyses. Id. The Subcommit­
tee on the Constitution received and incor­
porated into the legislative record lengthy 
reports from several civil rights organiza­
tions and voting rights scholars, including: 
(1) a report by the ACLU’s Voting Rights 
Project, assessing 293 cases involving alle­
gations of voting discrimination since 1982, 
see 1 Evidence of Continued Need 378- 
1270 (Laughlin McDonald and Daniel Levi- 
tas, The Case for Extending and Amend­
ing the Voting Rights Act: Voting Rights 
Act Litigation, 1982-2006 (Mar. 2006)) 
(hereinafter, “ACLU Report”); (2) a re­
port by the National Commission on the 
Voting Rights Act, compiling evidence of 
voting discrimination since 1982 based on 
testimony gathered at ten field hearings 
across the country, as well as “governmen­

tal, legal, media and scholarly sources,” see 
id. at 121 (Nat’l Comm’n Report); and (3) 
a study conducted by Professor Ellen Katz 
and the Voting Rights Initiative of the 
University of Michigan Law School, which 
analyzed 323 post-1982 lawsuits that 
raised claims under Section 2 of the Voting 
Rights Act, see Impact and Effectiveness 
974 (Ellen Katz, Documenting Discrimi­
nation in Voting: Judicial Findings Un­
der Section 2 of the Voting Rights Act 
Since 1982 (Nov. 2005)) (hereinafter, “Katz 
Study”).

The Senate Judiciaiy Committee held 
nine of its own hearings to discuss the 
reauthorization of the Act’s temporaiy pro­
visions, at which it, too, received testimony 
from 46 witnesses, including experienced 
civil rights litigators, law pi-ofessors, and 
Department of Justice attorneys. See 
S.Rep. No. 109-295, at 2-4, 10 (2006). All 
told, the legislative record compiled by the 
two houses is over 15,000 pages in length, 
and includes “statistics, findings by courts 
and the Justice Department, and first­
hand accounts of discrimination.” See id. 
at 10. On the basis of this extensive rec­
ord, Congress determined that “40 years 
has not been a sufficient amount of time to 
eliminate the vestiges of discrimination fol­
lowing nearly 100 years of disregard for 
the dictates of the 15th amendment.” See 
Pub. L. No. 109-246, § 2(b)(7), 120 Stat. 
577, 578 (2006) (“2006 Amendments”). De­
spite the effectiveness of Section 5 in de­
terring some attempts at voting discrimi­
nation, the House Judiciaiy Committee 
found that “instances of discrimination and 
efforts to discriminate against minority 
voters continue, thus justifying reauthori­
zation of the VRA’s temporary provisions.” 
H.R. Rep. No. 109^178, at 24-25.

As evidence of continued discrimination 
in voting, Congress pointed to the “hun­
dreds of objections” to voting changes that 
were interposed by the Attorney General



436 811 FEDERAL SUPPLEMENT, 2d SERIES

since 1982; the number of voting changes 
withdrawn from consideration after so- 
called “more information requests” from 
the Attorney General; the number of “sec­
tion 5 enforcement actions undertaken by 
the Department of Justice in covered juris­
dictions since 1982,” in which the Depart­
ment has sought to compel jurisdictions to 
submit their voting changes for preclear­
ance; the number of requests for preclear­
ance that have been denied by three-judge 
panels of this Court; the “continued filing 
of section 2 cases” in covered jurisdictions; 
the existence of racially polarized voting 
“in each of the jurisdictions covered by the 
expiring provisions” of the Act; and “the 
tens of thousands of Federal obsei-vers 
dispatched to monitor polls” in covered 
jurisdictions. See 2006 Amendments 
§ 2(b)(3)-(4), (8), 120 Stat. at 577-78. 
Such evidence, Congress found, “demon­
strates that, without the continuation of 
the Voting Rights Act of 1965 protections, 
racial and language minority citizens will 
be deprived of the opportunity to exercise 
their right to vote, or will have their votes 
diluted, undermining the significant gains 
made by minorities in the last 40 years.” 
2006 Amendments § 2(b)(9), 120 Stat. at 
578.

Hence, Congress passed H.R. 9—enti­
tled the Fannie Lou Hamer, Rosa Parks, 
and Coretta Scott King Voting Rights Act 
Reauthorization and Amendments Act of 
2006—which reauthorized Section 5 (and 
the coverage formula in Section 4(b)) for 
another 25 years. See 2006 Amendments 
S 4; 42 U.S.C. § 1973b(a)(8). The con­
gressional support for the Act’s 2006 reau­
thorization was even more “over-whelming” 
than it had been for the Act’s passage in 
1965. Whereas the 1965 Act passed by a 
vote of 328 to 74 in the House and 79 to 18 
in the Senate, see Katzenbach, 383 U.S. at 
309, 86 S.Ct. 803, the 2006 Amendments 
passed by a vote of 390 to 33 in the House 
and 98 to 0 in the Senate, see 152 Cong. 
Rec. H5207 (daily ed. July 13, 2006); 152

Cong. Rec. S8012 (daily ed. July 20, 2006). 
President George W. Bush then signed the 
bill into law on July 27, 2006. See 120 
Stat. at 581.

In addition to extending the operation of 
Section 5, the 2006 Amendments made two 
substantive changes to the Act’s preclear­
ance standard. First, Congress clarified 
its intent with respect to the meaning of 
the word “purpose” in Section 5 in re­
sponse to the Supreme Court’s decision in 
Reno v. Bossier Parish Sch. Bd., 528 U.S. 
320, 120 S.Ct. 866, 145 L.Ed.2d 845 (2000) 
(“Bossier II  ”). Section 5, by its terms, 
only allows a voting change to be pre­
cleared if the change “neither has the pur­
pose nor will have the effect of denying or 
abridging the right to vote on account of 
race or color.” See 42 U.S.C. § 1973c(a). 
Prior to Bossier //, this provision was 
interpreted to bar preclearance of voting 
changes that either (1) were enacted with 
a discriminatory purpose; or (2) had a 
discriminatoiy, retrogressive effect—i.e., 
changes that worsened the position of mi­
nority voters relative to the status quo. 
See Bossier II, 528 U.S. at 324, 120 S.Ct. 
866 (explaining that a redistricting plan 
only has a prohibited discriminatory “ef­
fect” under Section 5 if it is retrogressive); 
Beer, 425 U.S. at 141, 96 S.Ct. 1357 (noting 
that “the purpose of sfection] 5 has always 
been to insure that no voting-procedure 
changes would be made that would lead to 
a retrogression in the position of racial 
minorities with respect to their effective 
exercise of the electoral franchise”). In 
Bossier //, however, the Supreme Court— 
for the first time—held that the “purpose” 
prong of Section 5 only prohibits electoral 
changes that are enacted with a discrimi­
natory and retrogressive purpose. See 
528 U.S. at 341, 120 S.Ct. 866. In other 
words, after Bossier II, a redistricting plan 
that was passed for- purely discriminatory 
reasons (such as to purposefully avoid the 
creation of a new majority-minority dis-



SHELBY COUNTY, ALA. v. HOLDER
C ite  as 811 F .S u p p .2 d  424 (D .I).C . 2011)

437

tiict), but that was not intended to make 
minority voters any worse off than they 
had been under the preexisting plan 
(which, say, had no majority-minority dis­
tricts), would not run afoul of Section 5’s 
“purpose” prong. See id. (holding that 
Section 5 “does not prohibit preclearance 
of a redistricting plan with a discriminato­
ry but nonretrogressive purpose”).

Bossier 11 thus had the effect of reading 
the “purpose” prong “almost entirely out 
of Section 5.” See Voting Rights Act: Sec­
tion 5—Preclearance Standards, Hearing 
before the Subcomm. on the Constitution 
of the House Comm, on the Judiciary, 
109th Cong. 12 (Nov. 1, 2005) (hereinafter, 
“Preclearance Standards ”) (prepared 
statement of Mark A. Posner) (hereinafter, 
“Posner Prepared Statement”). As was 
the case prior to Bossier 11, if a jurisdic­
tion enacted an electoral change that re­
duced the ability of minority voters to elect 
candidates of their choice, the change 
would be denied preclearance under Sec­
tion 5’s “effects” prong (because it would 
have a retrogressive effect). Under Bossi­
er 11, then, the “purpose” prong would 
only serve as an independent bar to dis­
criminatory voting changes where a juris­
diction “intendfed] to cause retrogression, 
but then, somehow, messe[d] up and en- 
act[ed| a voting change that [did] not actu­
ally cause retrogression to occur (the so- 
called ‘incompetent retrogressor’).” Id.

In 2006, the House Judiciary Committee 
explained that Bossier I I ’s limitation of the 
“purpose” prong had been inconsistent 
with Congress’s intent that Section 5 pre­
vent not only purposefully retrogressive 
discriminatory voting changes, but also 
those “[v]oting changes that ‘purposefully’ 
keep minority groups ‘in their place.’ ” 
See H.R.Rep. No. 109-478, at 68. Accord­
ingly, as part of the 2006 Amendments, 
Congress restored the pre-Bossier II “pur­
pose” standard by adding a provision to 
the statute that defined “pur pose” in Sec­

tion 5 to mean “any discriminatory pur­
pose.” See 2006 Amendments S 5(c), 120 
Slat, at 581; 42 U.S.C. § 1973c(c) (empha­
sis added).

In a similar vein, Congress also respond­
ed to the Supreme Court’s decision in 
Georgia v. Ashcroft, 539 U.S. 461, 123 
S.Ct. 2498, 156 L.Ed.2d 428 (2003), which 
had altered the preexisting standard for- 
determining whether a voting change had 
a prohibited retrogressive effect under 
Section 5’s “effects” prong. Prior to Geor­
gia v. Ashcroft, the standard for- assessing 
whether an electoral change violated the 
Section 5 “effects” test was “whether the 
ability of minority groups to participate in 
the political process and to elect their 
choices to office is . . . diminished . . . by 
the change affecting voting.” Beer, 425 
U.S. at 141, 96 S.Ct. 1357 (quoting 
H.R.Rep. No. 94-196, at 10). In Georgia 
v. Ashcroft, however, the Court endorsed a 
less rigid, “totality of the circumstances” 
analysis for examining retrogressive ef­
fects, explaining that “any assessment of 
the retrogression of a minority group’s 
effective exercise of the electoral franchise 
depends on an examination of all the rele­
vant circumstances, such as the ability of 
minority voters to elect their candidate of 
choice, the extent of the minority group’s 
opportunity to participate in the political 
process, and the feasibility of creating a 
nonretrogressive plan.” 539 U.S. at 479, 
123 S.Ct. 2498. In reauthorizing the Act 
in 2006, Congress expressed concern that 
the Georgia v. Ashcroft framework had 
introduced “substantial uncertainty” into 
the administration of a statute that was 
“specifically intended to block persistent 
and shifting efforts to limit the effective­
ness of minority political participation.” 
See H.R.Rep. No. 109^78, at 70 (internal 
quotation marks and citation omitted). 
Hence, in an attempt to restore the sim­
pler, “ability to elect” analysis articulated 
in Beer, see id. at 71, Congress added new



438 811 FEDERAL SUPPLEMENT, 2d SERIES

language to the Act, stating that all voting 
changes that diminish the ability of minori­
ties “to elect their prefeired candidates of 
choice” should be denied preclearance un­
der Section 5. See 2000 Amendments 
S 5(b), 120 Stat. at 581; 42 U.S.C.
§ 1973c(b).

For present purposes, even more signifi­
cant than the substantive changes that 
Congress made in 2006 to Section 5’s pre­
clearance standard were the proposed 
changes that Congress considered—but ul­
timately, did not make—to Section 4(b)’s 
coverage foi-mula. During the 2006 reau­
thorization hearings, there was extensive 
discussion of the potential need to revise 
the Act’s coverage formula to take account 
of changed circumstances since 1975, when 
the formula had last been updated. Sever­
al Senators asked members of the aca­
demic community whether they believed 
Section 4(b)’s “trigger” should be based on 
voter registration and turnout data from 
the 2000 and 2004 presidential elections, 
rather than data from the 1964, 1968, and 
1972 elections. See, e.g., Continuing Need 
48-49 (responses of Anita S. Earls to ques­
tions submitted by Senators Coburn, Cor- 
nyn, Leahy, and Kohl) (“Earls Respons­
es”); id. at 76, 85-86 (responses of Ronald 
Keith Caddie to questions submitted by 
Senators Kohl, Cornyn, and Coburn) 
(“Gaddie Responses”); id. at 99-100, 103- 
04 (Karlan Responses); id. at 110-12 (re­
sponses of Richard H. Pildes to questions 
submitted by Senators Specter, Cornyn, 
Coburn, and Kohl) (“Pildes Responses”); 
Introduction to Expiring Provisions 36, 
38 (responses of Richard L. Hasen to 
questions submitted by Senators Specter, 
Cornyn, and Sessions) (“Hasen Respons­
es”); id. at 76 (responses of Samuel Issa- 
charoff to questions submitted by Senators 
Specter, Sessions, and Cornyn) (“Issacha- 
roff Responses”).

Many voting rights scholars expressed 
the view that some sort of “updated trig­

ger is called for.” See, e.g., Continuing 
Need 85 (Gaddie Responses); Introduction 
to Expiring Provisions 36 (Hasen Re­
sponses) (explaining that “Congress should 
update the coverage formula based on data 
indicating where intentional state discrimi­
nation in voting on the basis of race is now 
a problem or likely to be one in the near 
future  ”); Introduction to Expiring Provi­
sions 13 (statement of Samuel Issacharoff) 
(noting that a trigger based on “voter- 
turnout figures from 1964 . . . risks ap­
pearing constitutionally antiquated by the 
proposed next expiration date of 2032”). 
But almost all agreed that updating the 
formula on the basis of voter turnout and 
registration data from the 2000 and 2004 
presidential elections would be ill-advised. 
As one law professor explained, such a 
proposal “rest[s] on a fundamental misper­
ception of the triggers,” since Congress 
“did not pick the 1964, 1968, or 1972 elec­
tions as triggers because it thought some­
thing distinctive happened in any of those 
elections.” See Continuing Need 99 (Kar­
lan Responses). Rather, the use of elec­
tion data from those years—in conjunction 
with the presence of a prohibited voting 
test or device—had served only as a proxy 
for identifying those “jurisdictions that had 
a long, open, and notorious history of di­
senfranchising minority citizens and dilut­
ing their voting strength whenever they 
did manage to register and cast ballots.” 
Id.; see also Continuing Need. 110 (Pildes 
Responses). For this reason, most scholars 
who testified before Congress were skepti­
cal as to whether “tinkering with the'cov­
erage dates is necessarily the best way to 
make the Act more cuiTent.” Introduc­
tion to Expiring Provisions 76 (Issacha­
roff Responses); see also Continuing Need 
110 (Pildes Responses) (stating that “|m]e- 
chanically updating the coverage formula 
irr this way would . . .  not tie coverage 
appropriately to where problems are oc­
curring today”).



SHELBY COUNTY, ALA. v. HOLDER
Cite as 81 1 F .S u p p .2 d  424 (I).D .C . 2011)

489

Nevertheless, the only amendment that 
was ultimately offered as a possible means 
of making Section 4(b)’s coverage fonnula 
more “current” proposed to do just that. 
Specifically, Representative Charlie Nor­
wood of Georgia introduced an amendment 
that would have created a “rolling test” for 
coverage based on voter turnout in the 
three most recent presidential elections. 
See H.R.Rep. No. 109-554, at 2 (2006). 
Under the Noi-wood Amendment, a juris­
diction would only be subject to preclear­
ance if it had “a discriminatory test in 
place or voter turnout of less than 50% in 
any of the three most recent presidential 
elections.” See id.

The House’s reaction to the Norwood 
Amendment was overwhelmingly negative. 
Representative James Sensenbrenncr, 
Chairman of the House Judiciary Commit­
tee, decried the Amendment, claiming that 
it “not only guts the bill, but turns the 
Voting Rights Act into a farce.” See 152 
Cong. Rec. H5181 (daily ed. July 13, 2006). 
Although over 1,000 counties still would 
have been subject to preclearance under 
the Norwood Amendment’s proposed for­
mula, Hawaii would have been the only 
state covered in its entirety—even though 
Hawaii has no discernible history of voting 
discrimination. See 152 Cong. Rec. 
H5179-81. Opponents of the Amendment 
condemned such results as evidence of the 
Amendment’s “absurdity,” and expressed 
concern that by severing Section 4(b)’s 
“connection to jurisdictions with proven 
disciiminatory histories,” the Amendment 
would place Section 5 in constitutional 
jeopardy. See 152 Cong. Rec. H5181.

Ultimately, the Norwood Amendment 
was defeated, and the existing coverage 
formula in Section 4(b) remained intact. 
See 152 Cong. Rec. H5204; see also James 
Thomas Tucker, The Politics of Persua­
sion: Passage of the Voting Rights Act 
Reauthorization Act of 2006, 33 J. legis. 
205, 254-55 (2007) (describing the debate

over the Norwood Amendment). Under 
that formula, which remains in existence 
today, a jurisdiction is subject to preclear­
ance if it maintained a voting test or device 
in 1964, 1968, or 1972, and had voter turn­
out or registration below 50% in that 
year’s presidential election. See 42 U.S.C. 
§ 1973b(b). Currently, there are 16 states 
covered in whole or in part by Section 4(b), 
and therefore subject to preclearance un­
der Section 5. See 28 C.F.R. pt. 51, app. 
Alabama, Alaska, Arizona, Georgia, Louisi­
ana, Mississippi, South Carolina, Texas, 
and Virginia are covered in their entirety, 
while portions of California, Florida, Mich­
igan, New Hampshire, New York, North 
Carolina, and South Dakota are also cov­
ered. Id.

III. Northwest Austin

Shortly after the 2006 Amendments be­
came effective, a Texas municipal utility 
district brought suit, seeking to bail out of 
the Act’s requirements or, in the alterna­
tive, to challenge Section 5 on its face as 
“an unconstitutional overextension of Con­
gress’s enforcement power to remedy past 
violations of the Fifteenth Amendment.” 
See Nw. Austin /, 573 F.Supp.2d at 230 
(internal quotation marks and citation 
omitted). Because the plaintiff-district 
sought a declaratory judgment that it was 
eligible for bailout, a three-judge panel of 
this Court was convened to hear the case. 
See id. (citing 42 U.S.C. § 1973b(a)(5)). 
The court first concluded that the district 
was not a “political subdivision” under Sec­
tion 14(c)(2) of the Act, and thus could not 
petition for bailout pursuant to Section 
4(a), which only authorizes states and “po­
litical subdivisions” to seek bailout. See 
id. at 230-35; sec also S 1973b(a)(l).

The court then proceeded to address the 
merits of the plaintiffs facial constitutional 
challenge to the 2006 reauthorization of 
Section 5. Nw. Austin I, 573 F.Supp.2d at



440 811 FEDERAL SUPPLEMENT, 2d SERIES

235-79. The court began by identifying 
the types of evidence of voting discrimina­
tion upon which Congress had relied in 
deciding to reauthorize Section 5 in 2006, 
which'included evidence of (1) racial dis­
parities in voter registration and turnout;
(2) the number of minority elected officials;
(3) objections to proposed voting changes 
under Section 5; (4) “more information 
requests” by the Attorney General in re­
sponse to Section 5 preclearance submis­
sions; (5) judicial preclearance suits 
brought by covered jurisdictions; (6) Sec­
tion 5 enforcement actions brought by the 
Attorney General; (7) Section 2 litigation; 
(8) the dispatch of federal election observ­
e r ;  (9) racially polarized voting; and (10) 
Section 5’s deterrent effect. Id. at 247. 
In a lengthy opinion replete with citations 
to the legislative record, the court ana­
lyzed each of these categories of evidence 
to determine whether there was sufficient 
proof of “contemporary discrimination in 
voting to justify Congress’s decision to 
subject covered jurisdictions to section 5 
preclearance for another twenty-five 
years.” Id. at 265. Concluding that the 
legislative record did, in fact, contain “ex­
tensive contemporary evidence of inten­
tional discrimination,” id. at 266, the court 
decided there was “no basis for overturn­
ing Congress’s judgment that preclear­
ance—‘a vital prophylactic tool[ ]’—re­
mains necessary,” id. at 279 (quoting 
H.R.Rep. No. 109-478, at 21).

On appeal, however, the Supreme Court 
reversed and remanded. In a decision 
that has since been criticized by some as 
“a questionable application of the doctrine 
of ‘constitutional avoidance,’ ” see Richard 
L. Hasen, Constitutional Avoidance and 
Anti-Avoidance by the Roberts Court, 
2009 S u p . Ct. R ev . 181 (2009); see also 
Ellen Katz, From Bush v. Gore to NA- 
MUDNO: A Response to Professor Amar,
61 F i .a L. R ev. 991, 992-93 (2009) (describ­
ing the Court’s “statutory construction” of 
the bailout provision in Nw. Austin II as

“contrived”), Justice Roberts, writing for 
an eight-justice majority, sidestepped the 
“big question” of Section 5’s constitutional­
ity by instead resolving the case on nar­
rower, statutory grounds, see Nw. Austin 
II, 129 S.Ct. at 2508. Specifically, the 
Court found that the plaintiff-district qual­
ified as a “political subdivision” eligible to 
petition for bailout—even though it did not 
register voters and was therefor e not a 
political subdivision as that term is defined 
in Section 14(c)(2) of the Act. See 42 
U.S.C. § 19731(c)(2) (defining “political 
subdivision” to include “any county or par­
ish” or “any other subdivision of a State 
which conducts registration for voting”).

According to the Court, “the statutory 
definition of ‘political subdivision’ in 
§ 14(c)(2) does not apply to every use of 
the term ‘political subdivision’ in the Act.” 
Nw. Austin II, 129 S.Ct. at 2515. Rather, 
the Court explained, the phrase “political 
subdivision” in Section 4(a) has a “broad­
er” meaning than that set forth in Section 
14(c)(2), and hence “a// political subdivi­
sions—not only those described in 
$ 14(c)(2)—are eligible to file a bailout 
suit” under Section 4(a). Id. at 2515-17 
(emphasis added). As a political subdivi­
sion of Texas “in the ordinaiy sense of the 
term,” the plaintiff-district was thus eligi­
ble to seek bailout. Id. at 2513. And 
because the district had framed its consti­
tutional challenge to the 2006 reauthoriza­
tion of Section 5 “as being ‘in the alterna­
tive’ to its statutory argument” for bailout, 
the majority saw no need to resolve the 
merits of the district’s constitutional chal­
lenge. Id.

But the majority did take the opportuni­
ty to voice some concerns about the consti­
tutionality of Section 5 and Section 4(b), 
and thereby presaged future challenges to 
Section 5 like that raised heie by Shelby 
County. The Court in Nw. Austin II em­
phasized the substantial “federalism costs”



SHELBY COUNTY, ALA. v. HOLDER
C ite  as  811 F .S u p p  2cl 424 (D .D .C. 2011)

441

imposed by Section 5, as well as the “dra­
matic improvements” in minority voter 
turnout and registration since the Act’s 
passage. Id. at 2511. “Things have 
changed in the South,” the Court wrote, 
explaining that minorities now register and 
vote at rates that “approach parity” with 
those of non-minorities, and that minority 
candidates “hold office at unprecedented 
levels.” Id. The Court conceded that 
these “improvements are no doubt due in 
significant part to the Voting Rights Act 
itself, and stand as a monument to its 
success,” but made clear that “[p]ast suc­
cess alone . . .  is not adequate justification 
to retain the preclearance requirements.” 
Id.

The Court also raised concern about the 
continued constitutionality of the Act’s cov­
erage formula, noting that it is “based on 
data that is now more than 35 years old, 
and there is considerable evidence that it 
fails to account for current political condi­
tions.” Id. at 2512. The Court cited the 
fact that the “racial gap in voter registra­
tion and turnout is lower in the States 
originally covered by § 5 than it is nation­
wide." h i  Although the Court did not 
specify the precise nature of the differ­
ences between covered and non-covered 
jurisdictions that would be constitutionally 
necessary to justify Section 5’s continued 
selective application, it did state that “a 
departure from the fundamental principle 
of equal sovereignty requires a showing 
that a statute’s disparate geographic cov­
erage is sufficiently related to the problem 
that it targets.” M  at 2512.

After identifying “serious constitutional 
questions” raised by the Act’s coverage 
fonnula and preclearance requirement, 
however, the majority refrained from an­
swering them. Id. at 2513. But Justice 
Thomas did not. Writing separately as 
the lone dissenter, he explained that he 
would have “decided the constitutional is­
sue presented” and concluded “that the

lack of current evidence of intentional dis­
crimination with respect to voting renders 
§ 5 unconstitutional.” Id. at 2517, 2519 
(Thomas, J., concurring in judgment in 
part, dissenting in part). According to 
Justice Thomas, “the constitutionality of 
§ 5 has always depended on the proven 
existence of intentional discrimination so 
extensive that elimination of it through 
case-by-case enforcement w'ould be impos­
sible.” Id. at 2524. He went on to explain 
that this kind of extensive intentional dis­
crimination in voting—which led the Court 
to uphold the constitutionality of Section 5 
on prior occasions—“no longer exists,” cit­
ing the high minority voter registration 
rates in states such as Alabama, Louisiana, 
and Mississippi. Id. at 2525. Justice 
Thomas dismissed evidence of the so-called 
“second generation barriers” to voting 
upon which Congress had relied, noting 
that, evidence of Section 5 enforcement 
actions, Section 2 suits, and federal obseiw- 
er coverage “bears no resemblance to the 
record initially supporting § 5, and is 
plainly insufficient to sustain such an ex- 
traordinai-y remedy.” Id. at 2520. With 
respect to evidence of intentional voting 
discrimination contained in the 2006 legis­
lative record and cited by the three-judge 
court, Justice Thomas found that these 
“discrete and isolated incidents” fell short 
of a “coordinated and unrelenting cam­
paign to deny an entire race access to the 
ballot.” Id. “Perfect compliance with the 
Fifteenth Amendment’s substantive com­
mand is not now—nor has it ever been— 
the yardstick for determining whether 
Congress has the power to employ broad 
prophylactic legislation to enforce that 
Amendment,” he explained. Id.

IV. Shelby County, Alabama
Echoing the arguments of Justice Thom­

as, Shelby County brought this suit on 
April 27, 2010, asserting that “it is no 
longer constitutionally justifiable for Con­



442 811 FEDERAL SUPPLEMENT, 2d SERIES

gress to arbitrarily impose on Shelby 
County and other covered jurisdictions dis­
favored treatment by forcing them to justi­
fy all voting changes to federal officials in 
Washington, D.C. for another twenty five 
years.” See Compl. 11 35. Shelby County’s 
history under the Voting Rights Act is 
extensive and forms a relevant backdrop to 
this case. As a political subdivision of 
Alabama, Shelby County has been subject 
to preclearance since 1965, based on the 
Attorney General’s determination that Ala­
bama used a prohibited voting test or de­
vice on November 1, 1964, and had voter 
turnout of less than 50% in the 1964 presi­
dential election. See 28 C.F.R. pt. 51 app.; 
30 Fed.Reg. 9897 (Aug. 7, 1965); see also 
42 U.S.C. § 1973b, § 1973c, § 1973/ (c)(2); 
Compl. Till 28-29. Fr om 1965 to the filing 
of this suit, the Department of Justice has 
received at least 682 preclearance submis­
sions from Shelby County and jurisdictions 
located wholly or partially within Shelby 
County. See Def.’s Mot. for Summ. J. 
(“Def.’s Mot.”) [Docket Entiy 54J, Ex. 4, 
Deck of Robert S. Berman (“Berman 
Deck”) 11 4. Shelby County itself has sub­
mitted at least 69 proposed voting changes 
to the Attorney General for preclearance. 
Id. 11 5.

Since 1965, the Department has lodged 
objections to five proposed voting changes 
submitted by jurisdictions located wholly 
or partially within Shelby County. Id. H 8. 
Shelby County was also a defendant in the 
so-called Dillard litigation in the 1980s, in 
which black residents of Alabama chal­
lenged the at-large system used to elect 
Alabama county commissioners as a viola­
tion of Section 2 of the Voting Rights Act. 
See Dillard v. Crenshaw Cnty., 640 
F.Supp. 1347, 1352-54 (M.D.AIa.1986); see 
also Dillard v. Baldwin Cnty. Bd. of 
Educ., 686 F.Supp. 1459, 1461 (M.DAla. 
1988) (reviewing history of Dillard litiga­
tion); Dillard v. Crenshaw Cnty., 748 
F.Supp. 819, 821-23 (M.D.Ala.1990) (de­
scribing Shelby County’s involvement in

D illard). Although Shelby County was 
not one of the original nine defendants in 
Dillard, see Dillard, 640 F.Supp. at 1352, 
the plaintiffs in Dillard eventually raised 
claims against a total of 183 Alabama cit­
ies, counties, and school boards that em­
ployed at-large methods of election, includ­
ing Shelby County, see Dillard, 686 
F.Supp. at 1461.

In the original Dillard lawsuit, the court 
concluded that the Alabama legislature 
had “engaged in a pattern and practice of 
using at-large election systems as an in­
strument for race discrimination.” 640 
F.Supp. at 1361. The court explained that 
the challenged at-large electoral systems 
had been created against the backdrop of 
Alabama’s “unrelenting historical agenda, 
spanning from the late 1800’s to the 1980’s, 
to keel) *ts black citizens economically, so­
cially, and politically downtrodden, from 
the cradle to the grave.” Id. at 1357. 
Moreover, the court noted, the Alabama 
legislature had “consistently enacted at- 
large systems for local governments dur­
ing periods when there was a substantial 
threat of black participation in the political 
process.” Id. at 1361. When viewed in 
light of the state’s “undisputed history of 
racial discrimination,” it became clear that 
the creation of at-large methods of elec­
tion—which did, in fact, have an “adverse 
racial impact”—“was not adventitious but 
rather racially inspired.” Id. Hence, the 
court found that preliminary injunctive re­
lief with respect to the counties then de­
fending their at-large election systems was 
warranted. Id. at 1373.

Despite the adverse judgment against 
the other Alabama counties with at-large 
electoral systems in place, Shelby County 
continued to deny that its at-large method 
for electing county commissioners violated 
Section 2, and the related case against it 
proceeded to trial. See Dillard, 748 
F.Supp. at 822. While the case was under



443SHELBY COUNTY, ALA. v. HOLDER
C ite as  8 I 1 F .S u p p .2 d  424 (D .I).C . 2011)

submission, however, Shelby County en­
tered into a consent decree with the plain­
tiffs, under which it agreed to change its 
at-large electoral system to a “single-mem­
ber district scheme” with one majority- 
black district. Id.

Most recently, on August 25, 2008, the 
Attorney General objected to a redistrict­
ing plan and 177 annexations submitted by 
the city of Calera, located within Shelby 
County. See Berman Deck 1W9-10; id., 
Att. A. Calera’s redistricting plan and an­
nexations would have eliminated the city’s 
sole majority-black district, which had 
been created pursuant to the consent de­
cree in Dillard, and which had elected an 
African-American councilman for the past 
20 years. See Berman Deck, Att. A. In 
its preclearance submission to the Attor­
ney General, Calera conceded that it had, 
in fact, already adopted the 177 annex­
ations without receiving advance preclear­
ance for them. See id.) see also Berman 
Deck 119. After the Attorney General 
lodged an objection to the annexations and 
the city’s 2008 redistricting plan, Calera 
nonetheless proceeded to conduct elections 
based on these unprecleared voting 
changes. See Berman Deck 11 11; id., Att. 
B (“Calera Compk”) H 18.; id., Att. C 
(“Calera Consent Decree”) at 3. The elec­
tions held under the objected-to plan and 
annexations resulted in the defeat of the 
African-American incumbent councilman. 
See id., Att. D.

The Attorney General responded by 
bringing a Section 5 enforcement action, 
seeking to prohibit Calera from certifying

4. Shelbv County also maintains that it is ineli­
gible for bailout because it held several spe­
cial elections under  the authority  of Act 65-  
816 (the "Planning Act" of 1965) between 
1965 and 2003. See Compl. 11 34(a)(i)-(iii). 
During that time, the Planning Act had not 
been precleared  by the Department of Justice. 
Id. 11 34(a)(ii)-(iii). Under Section 4(a), a cov­
ered jurisdiction is only eligible for bailout if 
it has complied "with the requirement that no

the results of its elections “based on the 
district boundaries and electorate to which 
the Attorney General ha[d| interposed a 
timely objection unless and until preclear­
ance under Section 5 . . .  is obtained.” 
Calera Compk at 7. The case was tempo­
rarily resolved through a consent decree, 
and the Attorney General subsequently 
withdrew his objection to the 177 annex­
ations. See Calera Consent Decree; see 
also Berman Deck 11 15; id., Att. F. The 
Attorney General did not, however, with­
draw his objection to the 2008 redistricting 
plan. See Berman Deck 11 15; id., Att. F.

Because of the Attorney General’s objec­
tion to Calera’s proposed voting changes, 
Shelby County argues that it is not eligible 
for bailout. Compk 1134(b) (citing 42 
IkS.C. § 1973b(a)(l)(E)).4 As a result of 
its alleged ineligibility for bailout and the 
2000 reauthorization of Section 5, Shelby 
County claims that it now “will have to 
regularly seek preclearance in the near 
future”—a process that, historically, has 
required the expenditure of “significant 
taxpayer dollars, time, and energy.” Sec 
id. 111132-33; Pl.’s Mot. for Sumrn. J. 
(“Pl.’s Mot.”) [Docket Entry 5], Deck of 
Frank C. Ellis, Jr. (“Ellis Deck”) 1111 7-8.

Shelby County does not challenge any 
specific application of Section 5 to one of 
its proposed voting changes; rather, it 
seeks a declaration that Section 5 and 
Section 4(b) are facially unconstitutional, 
as well as a permanent injunction prohibit­
ing the Attorney General from enforcing 
these provisions. See Compk 1111 1, 44(a)-

change covered by . . [Section 5] has been 
enforced without prec learance ."  See 42 
U.S.C. § l973b(a)(l)(D). Because Shelby 
County held special elections u nde r  the a u ­
thority of the Planning Act (i.e., "enforced" 
the Act) without first receiving preclearance, 
Shelby County maintains that it is also ineligi­
ble for bailout pursuant to 42 U.S.C. 
§ 1973b(a)( 1 )(D).



444 811 FEDERAL SUPPLEMENT, 2d SERIES

(b). In Count I, Shelby County alleges 
that in reauthorizing Section 5 “for anoth­
er twenty-five years in 2006, Congress 
lacked the evidence of intentional discrimi­
nation that warranted the enactment of 
the VRA in 1965 and its extensions in 
1970, 1975, and 1982." Id. 1138(c).
Hence, Shelby County argues, because 
there is neither- “ ‘congruence and propor­
tionality’ . nor even a ‘rational relation­
ship’ between the evidence compiled in 
support of the latest extension of Section 5 
and the burdens imposed by that provision 
. . . Section 5 .. . exceeds Congress’s au­
thority under the Fourteenth and Fif­
teenth Amendments,” id. 11 38(d) (internal 
citations omitted), “and, therefore, violates 
the Tenth Amendment and Article IV of 
the Constitution,” id. 1137. In Count II, 
Shelby County similarly challenges the 
constitutionality of the 2006 reauthoriza­
tion of Section 4(b)’s coverage formula, 
arguing that “Congress’s reliance . . .  on 
voting practices, voter registration data, 
and presidential election data from 1964, 
1968, and 1972 as the trigger for the pre­
clearance obligation of Section 5 is not an 
‘appropriate’ means of enforcing the Fif­
teenth Amendment.” Id. 1142(a). Be­
cause “Section 4(b)’s coverage formula is 
not ‘sufficiently related to the problem 
that it targets,’ ” Shelby County maintains 
that Section 4(b), like Section 5, exceeds 
Congress’s Fourteenth and Fifteenth 
Amendment enforcement authority, and 
violates the principle of equal sovereignty 
embodied in the Tenth Amendment and 
Article IV. Id. 11 43(c).

Shortly after filing its complaint, Shelby 
County filed a motion for summary judg­
ment. Several civil rights groups and 
Shelby County residents responded by fil­
ing motions seeking to inteivene as defen­
dants, which the Court granted. See 
8/25/10 Order (Docket Entry 29], Defen­
dant and defendant-intervenors then asked 
the Court to deny Shelby County’s sum- 
inai-y judgment motion as premature, or,

in the alternative, to grant limited discov­
ery pursuant to Fed.R.Civ.P. 56(0- Deny­
ing the request, this Court found that 
there was no need for discovery on any of 
the three issues upon which discovery was 
sought. With respect to the first issue— 
Shelby County’s standing to sue—the 
Court explained that no discoveiy was 
warranted since defendant “was unable to 
articulate any reason why a covered juris­
diction subject to Section 5’s preclearance 
requirement—such as Shelby County— 
would lack standing to bring this type of 
action.” Shelby Cnty. v. Holder, 270 
F.R.D. 16, 18 (D.D.C.2010). The Court 
next rejected defendant’s contention that 
discovery was needed to determine wheth­
er Shelby County was, in fact, eligible for 
bailout, since Shelby County did not seek 
bailout. Id. at 19. Finally, the Court held 
that there was no need for discovery on 
Shelby County’s constitutional challenge 
because it was purely facial—not “as ap­
plied”—and it therefore must “rise or fall 
on the record that Congress created when 
it extended [the Voting Rights Act’s tem­
porary provisions] in 2006.” Id. at 21. 
Accordingly, the Court set a schedule for 
the filing of dispositive motions, which gen­
erated over 1,000 pages of briefs and ex­
hibits and culminated in a lengthy motions 
hearing on February 2, 2011.

* * * * * *

This Court does not write on a clean 
slate in assessing plaintiffs facial constitu­
tional challenge to the 2006 reauthoriza- 
tion of Section 5 and Section 4(b). To 
date, one Supreme Court Justice has de­
clared that he would strike down Section 
5 as an unconstitutional exercise of Con­
gress’s Fifteenth Amendment enforce­
ment power, see Nw. Austin II, 129 S.Ct. 
at 2517-27 (Thomas, J., concurring in 
judgment in part, dissenting in part), 
while several other Justices have voiced 
concerns about the continued vitality of



SHELBY COUNTY, ALA. v. HOLDER
C ite  as  8 1 1 F .Sup|> .2d 424 ( D O C .  2011)

445

the Act’s coverage formula, see, e.g., Nw. 
Austin II Oral Arg. Tr. at 36, 2009 WL 
1146055 (Apr. 29, 2009) (Alito, J., asking, 
“[wjouldn’t you agree that there is [sic] 
some oddities in this coverage formula”); 
id. at 22 (Kennedy, J., inquiring whether 
there is “anything in the record” address­
ing whether “these States that are now 
covered .. . are markedly different from 
the noncovered jurisdictions”), and about 
the apparent never-ending nature of the 
preclearance obligation, which was origi­
nally intended to last only through 1970, 
but which is now scheduled to last 
through 2032, id. at 32 (Roberts, C.J., 
stating with respect to Section 5, “at 
some point it begins to look like the idea 
is that this is going to go on forever”). 
At the same time, a three-judge panel of 
this Court, after undertaking an exhaus­
tive review of the legislative record, con­
cluded that there was sufficient evidence 
of modern-day, intentional discrimination 
in voting to justify Congress’s 2006 reau­
thorization of the preclearance obligation 
on covered jurisdictions for another 25 
years. See Nw. Austin I, 573 F.Supp.2d 
at 221-83. Keeping all these views in 
mind, the Court will undertake its own 
assessment of the legislative record in or­
der to determine whether Congress ex­
ceeded its enforcement authority under 
the Fourteenth and Fifteenth Amend­
ments when it reauthorized Section 5 and 
Section 4(b) in 2006.

DISCUSSION

I. Threshold Issues
Three threshold issues are presented by 

this suit: (1) plaintiffs Article III stand­
ing; (2) plaintiffs eligibility for bailout; 
and (3) the facial rather than as-applied 
nature of plaintiffs claims. These three 
issues were, to some extent, already ad­
dressed in the prior Memorandum Opinion 
in this case. See Shelby Cnty., 270 F.R.D. 
at 18-21. Nevertheless, given the “ ‘well-

established principle . . . that normally the 
Court, will not decide a constitutional ques­
tion if there is some other ground upon 
which to dispose of the case,’ ” Nw. A us­
tin II, 129 S.Ct. at 2513 (quoting Escam­
bia Cnty. v. McMillan, 466 U.S. 48, 51, 104 
S.Ct. 1577, 80 L.Ed.2d 36 (1984)), the 
Court will briefly revisit each of these 
issues to explain why none provides a valid 
basis for avoiding the merits of the facial 
constitutional challenge raised here.

A. Standing
[1, 21 To establish the “iireducible con­

stitutional minimum of standing,” a plain­
tiff must allege (1) an “injury in fact” that 
is “(a) concrete and particularized and (b) 
actual or imminent, not conjectural or 
hypothetical”; (2) “a causal connection be­
tween the injury and the conduct com­
plained o f’; and (3) a likelihood “that the 
injui-y will be redressed by a favorable 
decision.” Lujan v. Defenders of Wildlife, 
504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 
L.Ed.2d 351 (1992) (internal quotation 
marks and citations omitted). As a juris­
diction covered by Section 4(b), Shelby 
County maintains that it must expend “sig­
nificant taxpayer dollars, time, and energy 
to meet its obligations under Section 5 of 
the VRA.” Ellis Decl. 11 7. Shelby County’s 
expenditure of time and money to ensure 
compliance with Section 5 constitutes a 
“concrete and particularized” injury that is 
caused by the continued operation of the 
statute, and that would be redressed by a 
decision declaring Section 5 facially uncon­
stitutional and permanently enjoining its 
enforcement.

The mere fact that Shelby County does 
not challenge any specific objection to one 
of its proposed electoral changes does not 
serve to render its claims “conjectural or 
hypothetical” for purposes of Article III. 
See LaRoque v. Holder, 650 F.3d 777, 789- 
91 (D.C.Cir.2011) (noting that a plaintiff 
need only demonstrate a “ ‘substantial 
probability’ of imminent injury” to estab­



446 811 FEDERAL SUPPLEMENT, 2d SERIES

lish Article III standing to bring a facial 
constitutional challenge to Section 5). Be­
cause Shelby County is a jurisdiction sub­
ject to Section 5, it will be forced to ex­
pend resources obtaining preclearance for 
all of its future electoral changes, absent a 
decision from this Court granting its re­
quested relief." Shelby County therefore 
has alleged an injury that is both “credible 
and immediate, and not merely abstract or 
speculative.” See Navegar, Inc. v. United. 
States, 108 F.3d 994, 998 (D.C.Cir.1997); 
see also Steffel v. Thompson, 415 U.S. 452, 
459, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974) 
(permitting plaintiff to challenge the legali­
ty of his potential arrest under a criminal 
trespass statute where the plaintiff alleged 
threats of prosecution that were neither 
imaginary nor speculative). Accordingly, 
Shelby County has standing to pursue its 
facial constitutional challenges to Section 5 
and Section 4(b).

B. Bailout
[3] Unlike the Texas municipal utility 

district in Nw. Austin, Shelby County has

5. In fact, Shelby County represented to the 
Court in July 201 I that it was in the process 
of complet ing its decennial redistricting plan 
and that it would need to expend time and 
resources preparing a p rec learance  subm is­
sion for the plan as early as last month, in the 
event that the Court denied  its motion for 
su m m ary  judgment. See Notice to the Court 
[Docket Entry 79], 6

6. Although the Court did not permit discovery 
into the question of Shelbv County's  bailout- 
eligibility, it is clear—based on undisputed 
facts in the record—that Shelbv County is not 
eligible for bailoul. Under Section 4(a)(1)(E), 
a jurisdiction is only eligible for bailout if, 
during  the ten years p receding its bailout 
request,  "the Attorney General  has not in ter­
posed any objection . . .  with respect to any 
submission by or  on behalf of the plaintiff or 
any governmental unit w ith in  its territory " 
42 U.S.C. § 1 973b(a)( 1 )(E) (emphasis added). 
The Attorney General concedes that, in 2008, 
he interposed an objection to the proposed 
redistricting plan and annexations submitted

not framed its constitutional challenge “as 
being ‘in the alternative’ to its statutoiy 
argument” for bailout. Nw. Austin II, 129 
S.Ct. at 2513. Indeed, Shelby County has 
expressly chosen not to petition for bail­
out, based on its determination that such a 
petition would be futile. See Compl. 11 34. 
Because Shelby County has not sought 
bailout under Section 4(a), a finding that 
Shelby County was bailout-eligible would 
not obviate the need for this Court to 
assess the merits of Shelby County’s con­
stitutional challenge, as was the case in 
Nw. Austin II. The Supreme Court’s find­
ing in Niv. Austin II that the plaintiff- 
district was eligible for bailout served' to 
“afford [the plaintiff-district] all the relief 
it sfought],” see 129 S.Ct. at 2513; here, 
however, a determination that Shelby 
County was eligible for bailout would only 
relieve Shelby County of its preclearance 
obligation if defendant or this Court, could 
somehow “force Shelby County to accept 
bailout,” which, as defendant correctly con­
cedes, cannot be done. See Shelby Cnty., 
270 F.R.D. at 19,fi

bv the city of Calera, a "governmental un i t” 
within Shelby County. See Def.’s Mot. at 8; 
Berman Deck 111 9-10. As a result of this 
objection, Shelby Countv would not be eligi­
ble for bailout under  Section 4(a)(1)(E). even 
if—like the Texas municipal utility district in 
Nw. A ustin  I I— it had chosen to pursue  such a 
course as an "alternative” to its facial consti­
tutional challenge. Similarly, Shelbv Counts’ 
concedes that it held several special elections 
under  the authority  of Act 65-816 (the "P la n ­
ning Act" of 1965) between 1965 and 2003. 
See Compl. H 34(a)(i)-(iii). During that time, 
the Planning Act had not been p recleared  by 
the Department of Justice. Id. 11 34(a)(ii)-(iii). 
Under Section 4(a), a covered jurisdiction is 
only eligible for bailout if it has complied 
"with the requirement that no change cov­
ered by . . .  [Section 5] has been enforced 
without preclearance ."  See 42 U.S.C.
§ 197 3b(a)( 1 )(D). Because Shelby County 
held special elections under the authority  of 
the Planning Act, Shelby County is also ineli­
gible for bailout under 42 U.S.C.
§ 1973b(a)( 1 )(D).



SHELBY COUNTY, ALA. v. HOLDER
C ite  as  81 I F .S upp .2d  424 (D .D .C . 2011)

447

C. The Faded Nature of Plaintiffs 
Challenge

14,51 Finally, it is important to re­
member that Shelby County’s suit pres­
ents only a facial—and not an as-applied— 
challenge to the constitutionality of the 
2006 reauthorization of Section 5 and Sec­
tion 4(b). The “distinction between ‘as- 
applied’ and ‘facial’ challenges is that the 
for mer ask only that the reviewing court 
declare the challenged statute or regula­
tion unconstitutional on the facts of the 
particular case,” Sanjour v. E.P.A., 5G 
F.3d 85, 92 n. 10 (D.C.Cir.1995), whereas 
the latter ask the court to conclude that 
“ ‘no set of circumstances exists under 
which fthe statute] would be valid,’ or that 
the statute lacks any ‘plainly legitimate
sweep,’ ” United States v. Stevens, ----
U.S. ----- , 130 S.Ct. 1577, 1587, 176
L.Ed.2d 435 (2010) (internal citations omit­
ted). When a plaintiff brings both a facial 
and an as-applied challenge to a statute, 
“the court must ‘determine first whether 
the law is constitutional as applied to the 
challenging party’s conduct, and then only 
if the as-applied challenge fails, . . . deter­
mine whether it is necessary to consider 
the facial challenge.’ ” Heller v. Dist. of 
Columbia, 698 F.Supp.2d 179, 188 n. 10 
(D.D.C.2010) (internal citations omitted); 
see also Bd. of Trs. of State Univ. of N.Y. 
v. Fox, 492 U.S. 469, 485, 109 S.Ct. 3028, 
106 L.Ed.2d 388 (1989) (explaining that 
“for reasons relating both to the proper- 
functioning of courts and to their efficien­
cy, the lawfulness of the particular applica­

7. In addition to challenging the 2006 reau­
thorization of Section 5 and Section 4(b) as 
exceeding Congress's Fourteenth and Fif­
teenth Amendment enforcement authority, 
Shelby Countv argues that Section 5 and Sec­
tion 4(b) impermissibly intrude on state  sover­
eignty in violation of the Tenth Amendment 
and Article IV of the Constitution. See 
Compl. 111139, 41, 43. The S upre m e Court, 
however, has repeatedly rejected such federal- 
ism-based challenges to Section 5, recogniz­
ing that the Reconstruction Amendments

tion of the law should ordinarily be decided 
first”).

[6] Here, however, Shelby County has 
made clear- that it is only seeking to chal­
lenge the constitutionality of Section 5 and 
Section 4(b) on their face, and not as they 
have been applied to Shelby County in any 
particular instance. See, e.g., Compl. 11 1 
(seeking a declaratory judgment that Sec­
tion 4(b) and Section 5 “are facially uncon­
stitutional”) (emphasis added); Pl.’s Mot. 
at 17 n. 2 (describing plaintiffs challenge 
as facial); Shelby Cnty., 270 F.R.D. at 19 
(finding that discovery was “unwarranted” 
because “Shelby County brings only a fa­
cial challenge”). Because Shelby County 
has chosen not to raise an as-applied chal­
lenge—and indeed, has explicitly waived 
its right to bring such a challenge, see 
Shelby Cnty., 270 F.R.D. at 19—the 
Court’s consideration of Shelby County’s 
facial challenge is not premature. See Ste­
vens, 130 S.Ct. at 1587 n. 3 (rejecting 
contention that the Court’s consideration 
of a facial constitutional challenge was 
“premature” where “the constitutional ar­
gument [wa]s a general one” and there 
was no “separate attack on a defined sub­
set of the statute’s applications”).

II. Standard of Review
The Court must first determine the ap­

propriate standard of review to use in 
evaluating whether Congress exceeded its 
enforcement authority under the Four­
teenth and Fifteenth Amendments when it 
reauthorized Section 5 and Section 4(b) in 
2006.7 The Attorney General, relying on

were specifically designed as an expansion 
of federal pow er  and an intrusion on state 
sovereignty." See City o f  Rome. 446 U.S. at 
179, 100 S.Ct. 1548; see also Lopez v. M onte­
rey Cnty., 525 U.S. 266, 282, 1 19 S.Ct. 693, 
142 I. .Ed.2d 728 (1999) (noting that " the  Re­
construction Amendments by their  na ture  
contempla te  some intrusion into areas t rad i­
tionally reserved to the States"). To the ex­
tent that Section 5 and Section 4(b) constitute 
"app rop r ia te "  remedial enforcement legisla-



448 811 FEDERAL SUPPLEMENT, 2d SERIES

cases in which the Supreme Court has 
previously assessed the constitutionality of 
Section 5, argues that “when Congress is 
legislatively enforcing the Fifteenth 
Amendment’s prohibition on race discrimi­
nation with respect to voting, the Court 
reviews the appropriateness of that legisla­
tion under a deferential rationality stan­
dard.” See Def.’s Mot. at 12 (citing Kat- 
zenbach, 383 U.S. at 324 , 86 S.Ct. 803; 
City of Rome, 44G U.S. at 175-77, 100 S.Ct. 
1548; Georgia v. United States, 411 U.S. 
526, 535, 93 S.Ct. 1702, 36 L.Ed.2d 472 
(1973); Lopez, 525 U.S. at 282-85, 119 
S.Ct. 693). Shelby County, on the other 
hand, urges this Court to apply the “con­
gruence and proportionality” framework 
first articulated by the Supreme Court in 
City of Boeme v. Flores, 521 U.S. at 520, 
117 S.Ct. 2157, to assess legislation enact­
ed pursuant to § 5 of the Fourteenth 
Amendment, asserting that Boeme “ap­
plies just the same in Fifteenth Amend­
ment cases” because “[t]he enforcement 
clauses of the Fourteenth and Fifteenth 
Amendments are coextensive.” See Pl.’s 
Mot. at 19; see also Pl.’s Reply in Supp. of 
Pl.’s Mot. for Summ. J. (“Pl.’s Reply”) at 2 
(explaining that “[t]he Supreme Court has 
made clear that all enforcement legislation 
is subject to congruence and proportionali­
ty review, and it has specifically relied on 
the voting rights cases in adopting and 
applying this test").

The parties in Nw. Austin  engaged in 
the same dispute regarding the proper 
standard of review to apply in assessing 
the constitutionality of Section 5. See Nw. 
Austin II, 129 S.Ct. at 2512. Although the 
Supreme Court ultimately declined to re­
solve the issue, see id.; but see id. at 2524- 
25 (Thomas, J., concurring in judgment in 
part, dissenting in part) (suggesting that 
Boeme provides the framework for review­
ing the constitutionality of Section 5), the 
three-judge court below held that “Katzen-

bach’s rationality standard governs this 
case,” Niv. Austin I, 573 F.Supp.2d at 241.

That court described Katzenbach's “ra­
tionality standard” and Boeme’s “congru­
ence and proportionality test” as “two 
distinct standards for evaluating the con­
stitutionality of laws enforcing the Civil 
War Amendments.” 573 F.Supp.2d at 
235-36. After summarizing what it char­
acterized as “these two lines of cases,” 
the court said that “the time has come to 
choose between them.” 573 F.Supp.2d at
241. The court ultimately “chose” Kat- 
zenbach for two reasons (although it went 
on to find that Section 5 passed muster 
under both Katzenbach and the congru­
ence and proportionality framework out­
lined in Boeme). First, the court noted 
that City of Rome, which had “applied 
Katzenbach’s rationality test,” constituted 
controlling precedent directly on point. 
Id. Although City of Rome pre-dates 
Boeme, the Nw. Austin I panel reasoned 
that because neither Boerne nor any case 
since had questioned the standard of re­
view utilized in City of Rome, that stan­
dard had not been overruled. See id. at
242. Hence, the court concluded that the 
type of review enunciated in Katzenbach 
and employed in City of Rome still gov­
erned the plaintiffs challenge to the 2006 
extension of Section 5, even assuming 
that Boeme had “cast some doubt” on 
Katzenbach and City of Rome. Id. at 
246. Second, the court pointed to the 
fact that Boeme involved a challenge to 
Congress’s enforcement authority under 
§ 5 of the Fourteenth Amendment, id. at 
517, 117 S.Ct. 2157, whereas Katzenbach 
and City of Rome involved challenges to 
Section 5, which, “at its core,” constitutes 
legislation enacted under § 2 of the Fif­
teenth Amendment, id. at 243-44. “Even 
if the City of Boerne cases changed the 
test for all statutes enacted pursuant to

tion, then, their  encroachm ent  on state  sover­ eignty is permissible.



SHELBY COUNTY, ALA. v. HOLDER
C ite  as  811 F .S u p p .2 d  424 (D .D .C . 2011)

449

the Fourteenth Amendment,” the court 
explained, “those cases leave the Fif­
teenth Amendment standard untouched.” 
Id. at 243.

This Court respectfully disagrees. A 
close analysis of the Voting Rights Act 
cases, Boerne, and cases following Boeme 
reveals that the Supreme Court has not 
left the standard of review for Fifteenth 
Amendment enforcement legislation “un­
touched”; moreover, it has not established 
a “distinct standard” for evaluating Four­
teenth Amendment enforcement legislation 
different from that traditionally employed 
in the Fifteenth Amendment context. 
Rather, Boerne merely explicated and re­
fined the one standard of review that has 
always been employed to assess legislation 
enacted pursuant to both the Fourteenth 
and Fifteenth Amendments. See Appel­
lant’s Br., Nw. Austin 11, 2000 WL 453246, 
at *33 (Feb. 19, 2009) (explaining that 
“Boerne and the cases following it do no 
more than elaborate and clarify the stan­
dard for reviewing Congress’s efforts to 
enforce the Reconstruction Amendments”). 
The question is not, then, whether this 
Court, as “a district court bound by Su­
preme Court precedent,” should follow 
“Katzenbach and City of Rome even if . . .  
the City of Boeme cases cast some doubt 
on those cases,” Niv. Austin I, 573 
F.Supp.2d at 246. If this Court viewed 
Boeme and its enunciation of the congni- 
ence and proportionality test as merely 
“casting doubt” on Katzenbach and City of 
Rome, it would, indeed, still be obligated 
to follow' those earlier cases, and leave to 
the Supreme Court “the prerogative of 
overruling its own decisions,” Rodriguez 
de Quijas v. Shearson/Am. Express, Inc., 
490 U.S. 477, 484, 109 S.Ct. 1917, 104 
L.Ed.2d 526 (1989). Rather, the question

8. [n this Opinion, the Court uses "Section 5" 
to refer to Section 5 of the Voting Rights Act, 
and "§ 5" to refer to the enforcement clause 
of the Fourteenth Amendment. Similarly, the

is whether, given the elaboration of the 
Katzenbach standard that was undertaken 
by the Supreme Court in Boeme, this 
Court should nonetheless adhere to the 
standard as first articulated in Katzen­
bach, simply because the Boeme elabora­
tion occurred in the Fourteenth Amend­
ment context, not the Fifteenth. Such a 
course would, in this Court’s view, consti­
tute a misunderstanding of Boerne. This 
Court will therefore review the Supreme 
Court’s evolving descriptions of the nature 
of Congress’s enforcement powers under 
the Reconstruction Amendments, as expli­
cated in Katzenbach, Boeme and later 
cases, to show that Boeme’s congiuence 
and proportionality framework reflects a 
refined version of the same method of 
analysis utilized in Katzenbach, and hence 
provides the appropiiate standard of re­
view to assess Shelby County’s facial con­
stitutional challenge to Section 5 and Sec­
tion 4(b).

A. The “Virtually Identical ” Enforce­
ment Clauses of the Fourteenth and. 
Fifteenth Amendments 

Section 5 of the Fourteenth Amendment 
provides that “Congress shall have the 
power to enforce, by appropiiate legisla­
tion, the provisions of this article,” U.S. 
Const, amend. XIV, i) 5, while S 2 of the 
Fifteenth Amendment states that “Con­
gress shall have power to enforce this 
article by appropiiate legislation,” U.S. 
C onst amend. XV, § 2.8 Given the nearly 
identical language and similar origin of 
these two Reconstiuction Amendments, 
there would seem to be “no reason to treat 
the enforcement provision of the Fifteenth 
Amendment differently than the identical 
provision of the Fourteenth Amendment, 
and the Supreme Court has not held to the

Court uses "Section 2" to refer to Section 2 of 
the Voting Rights Act, and § 2 to refer to the 
enforcement clause of the Fifteenth Amend­
ment.



450 811 FEDERAL SUPPLEMENT, 2d SERIES

contrary.” Mixon v. State of Ohio, 193 
F.3d 389, 399 (6th Cir.1999); see also Hay­
den v. Pataki, 449 F.3d 305, 331 n. 5 (2d 
Cir.2006) (finding “no indication in Su­
preme Court precedent, or in logic, that 
the Congress and the legislatures that en­
acted and ratified the Fourteenth and Fif­
teenth Amendments intended that they be 
‘enforced’ in different ways”).

In fact, the Supreme Court has re­
peatedly emphasized—both before, in, and 
after Boeme—that the nature of the en­
forcement power conferred by § 5 of the 
Fouiteenth Amendment is “virtually iden­
tical” to that conferred by § 2 of the Fif­
teenth Amendment. See Bd. of TVs. of 
Univ. of Ala. v. Garrett, 531 U.S. 356, 373 
n. 8, 121 S.CL. 955, 148 L.Ed.2d 866 (2001); 
see also Boeme, 521 U.S. at 518, 117 S.Ct. 
2157 (comparing Congress’s Fourteenth 
Amendment enforcement authority to its 
“parallel power to enforce the provisions of 
the Fifteenth Amendment”); Katzenbach 
v. Morgan, 384 U.S. 641, 651, 86 S.Ct. 
1717, 16 L.Fd.2d 828 (1966) (explaining 
that “Section 2 of the Fifteenth Amend­
ment grants Congress a similar power to 
[that of § 5 of the Fourteenth Amend­
ment],” as both sections permit Congress 
to “enforce by ‘appropriate legislation’ the 
provisions of that amendment”); Nevada 
Dep’t of Human Res. v. Hibbs, 538 U.S. 
721, 742 n. 1, 123 S.Ct. 1972, 155 L.Ed.2d 
953 (2003) (Scalia, J., dissenting) (noting 
that “Section 2 of the Fifteenth Amend­
ment is practically identical to § 5 of the 
Fourteenth Amendment”); Lopez, 525 
U.S. at 294 n. 6, 119 S.Ct. 693 (Thomas, J., 
dissenting) (explaining that while “City of 
Boeme involved the Fourteenth Amend­
ment enforcement power, we have always 
treated the nature of the enforcement 
powers conferred by the Fourteenth and 
Fifteenth Amendments as coextensive”);

9. Section 1 of the Thirteenth Amendment 
abolishes slavery, and § 2 provides, in terms 
identical to those in § 2 of the Fifteenth

City of Rome, 446 U.S. at 208 n. 1, 100 
S.Ct. 1548 (Rehnquist, J., dissenting) (stat­
ing that “the nature of the enforcement 
powers conferred by the Fourteenth and 
Fifteenth Amendments has always been 
treated as coextensive”).

Hence, when the Supreme Court in Kat­
zenbach first examined whether Con­
gress’s enactment of the Voting Rights Act 
exceeded its power to “enforce” the Fif­
teenth Amendment “by appropriate legis­
lation,” the Court looked for guidance to 
Ex Parte Virginia—a case involving Con­
gress’s parallel enforcement power under 
§ 5 of the Fourteenth Amendment. See 
Katzenbach, 383 U.S. at 326-27, 86 S.Ct. 
803 (citing Ex Parte Virginia, 100 U.S. 
339, 345-46, 25 L.Ed. 676 (1879)). In Ex 
Parte Virginia, the Supreme Court as­
sessed the nature of Congress’s power un­
der the enforcement clauses of the Thir­
teenth and Fourteenth Amendments,9 and 
explained that “[w]hatever legislation is 
appropriate, that is, adapted to carry out 
the objects the amendments have in view, 
whatever tends to enforce submission to 
the prohibitions they contain, and to se­
cure to all persons the enjoyment of per­
fect equality of civil lights and the equal 
protection of the laws against State denial 
or invasion, if not prohibited, is brought 
within the domain of congressional power.” 
Ex Parte Virginia, 100 U.S. at 346, 25 
L.Ed. 676. Quoting this language, the Su­
preme Court in Katzenbach rejected the 
contention that § 2 of the Fifteenth 
Amendment permits Congress to “do no 
more than to forbid violations of the Fif­
teenth Amendment in general terms.” 383 
U.S. at 327, 86 S.Ct. 803. Rather, the 
Court explained, § 2 of the Fifteenth 
Amendment—like § 5 of the Fourteenth 
Amendment—provides Congress with “full

Amendment, that “Congress shall have power 
to enforce this article b_v appropriate  legisla- 
t ion.” See U.S. C o n s t  amend. XIII.



SHELBY COUNTY, ALA. v. HOLDER
C ite  a s  8 1 1 F .S u p p .2 d  424 (O .D .C . 2011)

451

remedial powers” to enforce the Amend­
ment by “appropriate” legislation; that is, 
to pass legislation to make the Amend­
ment’s protections “ ‘fully effective.’ ” See 
id. at 326, 86 S.Ct. 803 (quoting Ex Parte 
Virginia, 100 U.S. at 345).

According to the Court in Katzenbach, 
“[tjhe basic test to be applied in a case 
involving s[ection] 2 of the Fifteenth 
Amendment” is the same as that to be 
applied “in all cases concerning the ex­
press powers of Congress with relation to 
the reseived powers of the States.” Id. As 
Chief Justice Marshall said in McCulloch 
v. Maryland: “ ‘Let the end be legitimate, 
let it be within the scope of the constitu­
tion, and all means which are appropriate, 
which are plainly adapted to that end, 
which are not prohibited, but consist with 
the letter and spirit of the constitution, are 
constitutional.’ ” Id. (quoting McCulloch 
v. Maryland, 4 Wheat. 316, 421, 4 L.Ed. 
579 (1819)).

After setting forth Congress’s Fifteenth 
Amendment enforcement authority in 
these broad terms, the Supreme Court in 
Katzenbach proceeded to engage in a care­
ful analysis of whether Section 5 and Sec­
tion 4(b) constituted “appropriate” enforce­
ment legislation, as that word is defined in 
McCulloch v. Maryland and Ex Parte Vir­
ginia. With respect to the coverage for­
mula in Section 4(b), the Court acknowl­
edged that Congress had confined the 
Act’s most stringent remedies—such as 
preclearance—to “a small number of 
States and political subdivisions which in 
most instances were familiar to Congress 
by name.” See Katzenbach, 383 U.S. at 
328, 86 S.Ct. 803. The decision to target 
only certain sections of the countiy and 
not others was based on “evidence of actu­
al voting discrimination” in these areas, 
and the Court found it “acceptable” for 
Congress to “limit its attention to the geo­
graphic areas where immediate action 
seemed necessary.” Id. at 328-29, 86

S.Ct. 803. “Legislation need not deal with 
all phases of a problem in the same way,” 
the Court explained, “so long as the dis­
tinctions drawn have some basis in prac­
tical experience.” Id. at 331, 86 S.Ct. 803. 
Because the distinctions drawn by the cov­
erage formula in Section 4(b) had such a 
basis, the Court found that the formula 
was “rational in both practice and theory.” 
See id, at 330, 86 S.Ct. 803.

The Court also concluded that Section 
5’s preclearance requirement constituted a 
“permissibly decisive” response to the 
problem of states “contriving new rules of 
various kinds for the sole purpose of per­
petuating voting discrimination in the face 
of adverse federal court decrees.” Id. at 
335, 86 S.Ct. 803. Given the “voluminous” 
legislative record amassed by Congress 
during its consideration of the Act, id. at 
308, 86 S.Ct. 803, which contained ample 
evidence of “obstractionist tactics” in cov­
ered jurisdictions, id. at 328, 86 S.Ct. 803, 
the Court noted that “Congress had rea­
son to suppose that these States might try 
similar maneuvers in the future in order to 
evade the remedies for voting discrimina­
tion contained in the Act itself,” thereby 
justifying the need for a prophylactic 
measure like Section 5, see id. at 334-35, 
86 S.Ct. 803. The Court determined, then, 
on the basis of the evidence of voting 
discrimination in the record, that Congress 
had “exercised its powers under the Fif­
teenth Amendment in an appropriate man­
ner” when it enacted Section 5 and Section 
4(b). Id. at 324, 80 S.Ct. 803.

The same year that it decided Katzen­
bach, the Supreme Cour t had occasion to 
re-examine the nature of Congress’s en­
forcement authority under § 5 of the 
Fourteenth Amendment, and in so doing 
made clear that the test for reviewing 
exercises of Congress’s Fourteenth and 
Fifteenth Amendment enforcement powers 
is t.he same. See Katzenbach v. Morgan,



452 811 FEDERAL SUPPLEMENT, 2d SERIES

384 U.S. at 651, 86 S.Ct. 1717."' In Kat- 
zenbach v. Morgan, the Supreme Court 
addressed a Fourteenth Amendment chal­
lenge to Section 4(e) of the Voting Rights 
Act, which guaranteed the light to vote to 
persons educated in Puerto Rico who satis­
fied certain educational criteria but who 
could not read or -unite English. Regis­
tered voters in New York challenged Sec­
tion 4(e) insofar as it forbid New York 
from enforcing its state election laws, 
which made the ability to read and write 
English a precondition to voting. See id. 
at 643—45, 86 S.Ct. 1717. Rejecting this 
challenge, the Supreme Court explained 
that § 5 of the Fourteenth Amendment is 
a “positive grant of legislative power,” 
which permits Congress to “enforce” the 
Amendment by enacting legislation to pre­
vent state action even if that state action 
would not otherwise be “prohibited by the 
provision of the Amendment that Congress 
sought to enforce.” Id. at 648, 86 S.Ct. 
1717. Because there was a “basis” upon 
which Congress could have found that 
New York’s application of its English liter­
acy requirement to deny the right to vote 
to non-English speakers educated in Puer­
to Rico “constituted invidious discrimina­
tion in violation of the Equal Protection 
Clause,” id. at 656, 86 S.Ct. 1717, Congress 
was entitled to respond to this state-spon­
sored discrimination by passing Section 
4(e), even assuming that Section 4(e) would 
prevent some applications of New York’s 
state election law that did not, in and of 
themselves, violate the substantive provi­
sions of the Fourteenth Amendment, see 
id. at 648, 86 S.Ct. 1717.

The Supreme Court in Katzenbach v. 
Morgan explained the nature of Con­
gress’s Fourteenth Amendment enforce­
ment power with reference to South Car­
olina v. Katzenbach, noting that § 2 of the 
Fifteenth Amendment “grants Congress a 10

10. The Court uses the shor thand  “Kaizen- 
h a d /  to refer to South Carolina v. K a r im -

similar power to enforce by ‘appropriate 
legislation’ the provisions of that amend­
ment; and we recently held .. . that ‘[t]he 
basic test to be applied in a case involving 
s[ection] 2 of the Fifteenth Amendment is 
the same as in all cases concerning the 
express powers of Congress with relation 
to the reserved powers of the States’ 
namely, the test identified in McCulloch v. 
Maryland. Id. at 651, 86 S.Ct. 1717 (in­
ternal citations omitted). Hence, the 
Court confirmed, the meaning of “appro­
priate, as stated in McCulloch v. M ary­
land and Ex Parte Virginia, governs Con­
gress’s enforcement authority under both 
§ 5 of the Fourteenth Amendment and § 2 
of the Fifteenth Amendment. See id.

When the Supreme Court next ad­
dressed a facial challenge to the constitu­
tionality of Section 5 in City of Rome, it 
again held that McCulloch v. Maryland 
and Ex Parte Virginia provide the basic 
framework for assessing whether legisla­
tion is “appropriate” under § 2 of the Fif­
teenth Amendment. See City of Rome, 
446 U.S. at 174-75, 100 S.Ct. 1548. The 
Court also elaborated on its discussion in 
Katzenbach v. Morgan by describing the 
precise nature of Congress’s authority to 
“enforce” the Reconstruction Amend­
ments. According to the Court, “even if 
§ 1 of the [Fifteenth] Amendment prohib­
its only purposeful discrimination,” id. at 
173, 100 S.Ct. 1548, Congress may, under 
the authority vested in it by § 2, “prohibit 
state action that, though in itself not viola­
tive of § 1, perpetuates the effects of past 
discrimination,” id. at 176, 100 S.Ct. 1548.

As one scholar has pointed out, this 
“reference to ‘past discrimination’ suggests 
that Congress is authorized to prohibit 
[discriminatory] effects only if the Court 
believes it is reasonable to infer discrimi­
natory purjjoses in the past.” Paul Winke,

b a ch  but employs the full case name for Kal- 
Zcubach  v. M organ.



SHELBY COUNTY, ALA. v. HOLDER
C ilc  as  811 F .S u p p .2 d  424 (D .D .C. 2011)

453

Why the Preclearance and Bailout. Provi­
sions of the Voting Rights Act Are Still a 
Constitutionally Proportional Remedy, 28 
N.Y.U. R ev . L. & Soc. C hange  G9, 80 
(2003). In other words, City of Rome 
implies that Congress may exercise its § 2 
enforcement powers by prohibiting elector­
al practices that do not themselves violate 
§ 1 of the Fifteenth Amendment only as a 
means of “attacking the perpetuation of 
earlier, purposeful racial disci-imination.” 
See City of Rome, 44G U.S. at 177, 100 
S.Ct. 1548 (describing the Supreme 
Court’s holding in Oregon v. Mitchell, 400 
U.S. 112, 91 S.Ct. 260, 27 L.Ed.2d 272 
(1970)) (emphasis added). But City of 
Rome made clear that when Congress does 
legislate pursuant to § 2 of the Fifteenth 
Amendment in response to earlier, pur­
poseful voting discrimination, such legisla­
tion need only be “ ‘appropriate’ as that 
tei-m is defined in McCulloch v. Maryland 
and Ex Parte Virginia.” Id. at 177, 100 
S.Ct. 1548. The Supreme Court in City of 
Rome thus framed the specific question 
before it as whether, in re-authorizing Sec­
tion 5 in 1975, “Congress could rationally 
have concluded that, because electoral 
changes by jurisdictions with a demonstra­
ble history of intentional racial discrimina­
tion in voting create the risk of purposeful 
discrimination, it was proper to prohibit 
changes that have a discriminator}' im­
pact.” Id. (emphasis added).

To answer this question, the Court 
looked to the evidence upon which Con­
gress had relied in deciding to reauthorize 
Section 5 in 1975. See id. at 180-82, 100 
S.Ct. 1548. The Court noted that Con­
gress had given “careful consideration to 
the propriety of readopting § 5’s preclear­
ance requirement” and had considered evi­
dence such as racial disparities in voter 
registration, the number of minority elect­
ed officials, and “the number and types of 
submissions made by covered jurisdictions 
and the number and nature of objections 
interposed by the Attorney General.” Id.

at 181, 100 S.Ct. 1548. After considering 
such evidence, Congress “not only deter­
mined that § 5 should be extended for 
another seven years,” but gave Section 5 a 
“ringing endorsement,” explaining that 
Section 5 had been largely responsible for 
the increased minority political partic­
ipation in the ten years since the Voting 
Rights Act’s passage, and for ensuring 
that such progress was not “ ‘destroyed 
through new procedures and techniques.’ ” 
Id. (quoting H.R. Rep. 94-196, at 10-11). 
Citing Congress’s finding that Section 5 
was “necessary to preserve the ‘limited 
and fragile’ achievements of the Act and to 
promote further amelioration of voting dis­
crimination,” the Court found that, based 
on the evidence in the congressional rec­
ord, the 1975 extension of Section 5 “was 
plainly a constitutional method of enforc­
ing the Fifteenth Amendment.” Id. at 
182, 100 S.Ct. 1548.

B. Boerne’s Refinement of Katzenbach 
and City of Rome

Then came City of Boerne. There, the 
Supreme Court addressed a challenge to 
the Religious Freedom Restoration Act 
(“RFRA”), a statute that Congress had 
enacted pursuant to S 5 of the Fourteenth 
Amendment, and which prohibited states 
from imposing a “substantial burden” on 
the free exercise of religion unless they 
could show that the burden was (1) in 
furtherance of a “compelling” governmen­
tal interest; and (2) the “least restrictive 
means” of furthering that interest. 521 
U.S. at 515-16, 117 S.Ct. 2157. The Court 
in Boerne began its analysis of RFRA by 
quoting the familiar passage from Ex 
Parte Virginia on the meaning of “appro­
priate” § 5 enforcement legislation. See 
id. at 517-18, 117 S.Ct. 2157. After noting 
that Ex Parte Virginia had only outlined 
“the scope of Congress’ § 5 power in .. . 
broad terms,” id. at 517, 117 S.Ct. 2157, 
the Court proceeded to expand on these



454 811 FEDERAL SUPPLEMENT, 2d SERIES

“broad terms” by confirming what Katzen­
bach v. Morgan and City of Rome had 
already made clear: namely, that “[ljegis- 
lation which deters or remedies constitu­
tional violations can fall within the sweep 
of Congress’s enforcement power even if in 
the process it prohibits conduct which is 
not itself unconstitutional.” Id. at 518, 117 
S.Ct. 2157.

But the Court in Boeme went on to 
explain that Congress’s power under § 5 is 
not unlimited. “Legislation which alters 
the meaning of the Free Exercise Clause 
cannot be said to be enforcing the Clause,” 
the Court said, since Congress “has been 
given the power ‘to enforce,’ ” but “not the 
power to determine what constitutes a con­
stitutional violation.” Id. at 519, 117 S.Ct. 
2157. The Court acknowledged that there 
is a fine line “between measures that rem­
edy or prevent unconstitutional actions and 
measures that make a substantive change 
in the governing law,” and it explained 
that while Congress “must have wide lati­
tude in determining where [the line] lies,” 
ultimately it is for the Court to decide 
whether Congress has overstepped the 
bounds of its authority by attempting to 
“decree the substance of the Fourteenth 
Amendment’s restrictions on the States.” 
Id. at 519-20, 117 S.Ct. 2157. Hence, the 
Court concluded, in order for legislation to 
be upheld as a valid exercise of Congress’s 
§ 5 power, “[t]here must be a congruence 
and proportionality between the injuiy to 
be prevented or remedied and the means 
adopted to that end.” Id.

But in making this statement, the Su­
preme Couit in Boeme did not puiport to 
ovenule Katzenbach, nor did it seek to 
distinguish between the standards of re­
view to be applied in the Fourteenth and 
Fifteenth Amendment enforcement con­
texts. To the contrary, the Court cited 
Katzenbach as a paradigmatic example of 
a case that had “revolve[d] around the 
question whether § 5 legislation can be

considered remedial,” see Boeme, 521 U.S. 
at 525, 117 S.Ct. 2157 (citing Katzenbach, 
383 U.S. at 308, 86 S.Ct. 803)—despite the 
fact that Katzenbach involved § 2 legisla­
tion, not § 5 legislation. The Boeme 
Court also discussed Katzenbach v. Mor­
gan and City of Rome in great detail, see, 
eg., Boeme 521 U.S. at 527-28, 533, 117 
S.Ct. 2157, without providing any indica­
tion that it was departing from the method 
of analysis it had used to assess Con­
gress’s exercise of its Fourteenth and Fif­
teenth Amendment enforcement authority 
in those cases. Instead, the Supreme 
Court in Boeme cited Katzenbach v. Mor­
gan and City of Rome as illustrative of the 
principle that Congress may, consistent 
with S 5, enact “strong remedial and pre­
ventative measures to respond to the 
widespread and persisting deprivation of 
constitutional rights resulting from this 
countiy’s histoiy of racial discrimination.” 
See Boeme, 521 U.S. at 526, 117 S.Ct. 
2157. Because it had previously upheld 
challenged provisions of the Voting Rights 
Act only on the basis of actual evidence of 
unconstitutional voting discrimination by 
states, see id. at 526-28, 117 S.Ct. 2157, 
the Court found no reason to view its 
Voting Rights Act jurispiudence under 
S 2 of the Fifteenth Amendment as incon­
sistent with the pronouncement that “[t]he 
appropriateness of remedial measures 
must be considered in light of the evil 
presented,” id. at 530, 117 S.Ct. 2157 (cit­
ing Katzenbach, 383 U.S. at 308, 86 S.Ct. 
803).

Applying this standard to RFRA, how­
ever, the Court decided that RF’RA was 
“so out of proportion to a supposed reme­
dial or preventative object that it cannot 
be understood as responsive to, or de­
signed to prevent, unconstitutional behav­
ior.” Boeme, 521 U.S. at 532, 117 S.Ct. 
2157. In reaching this conclusion, the 
Court found a comparison between RFRA 
and the Voting Rights Act to be “instrue-



455SHELBY COUNTY, ALA. v. HOLDER
C ite  a s  811 F .S u p p .2 d  424 (D .D .C. 2011)

t.ive.” Id. at 530, 117 S.Ct. 2157. Whereas 
the Voting Rights Act had been passed on 
the basis of an extensive legislative record 
replete with instances of state-sponsored 
voting discrimination in violation of the 
Fifteenth Amendment, RFRA’s legislative 
record lacked “examples of modem in­
stances of generally applicable laws passed 
because of religious bigotry.” Id. Indeed, 
the record contained no documented epi­
sodes of religious persecution that had oc­
curred in the past 40 years. Id. And 
unlike the Voting Rights Act—which was 
limited both in terms of the “discrete class 
of laws” that it affected (voting laws) and 
in the states that it covered (those where 
“constitutional violations were most like­
ly”)—RFRA’s “(s)weeping coverage” dis­
placed laws in evei-y state, “of almost ev- 
eiy description and regardless of subject 
matter.” Id. at 532, 117 S.Ct. 2157. Fi­
nally, while Section 5 of the Voting Rights 
Act was enacted as a temporary provision, 
with a procedure by which jurisdictions 
could bail out of its requirements, RFRA 
had “no termination date or tennination 
mechanism.” Id. at 532-33, 117 S.Ct. 
2157.

The Supreme Court in Boerne made 
deal- that a statute need not contain these 
kinds of limiting features in order to be 
sustained as congruent and proportional 
§ 5 legislation. Id. at 533, 117 S.Ct. 2157. 
But it explained that where “a congres­
sional enactment peivasively prohibits con­
stitutional state action in an effort to rem­
edy or to prevent unconstitutional state 
action, limitations of this kind tend to en­
sure Congress’ means are proportionate to 
ends legitimate under $ 5.” Id. (emphasis 
added). Given the lack of any such limita­
tions in RFRA, together with the absence 
of any recent documented instances of reli­
gious persecution in the legislative record, 
the Court in Boerne held that “RFRA 
cannot be considered remedial, preventa­
tive legislation.” Id. at 532, 117 S.Ct. 
2157. “Simply put, RFRA is not designed

to identify and counteract state laws likely 
to be unconstitutional because of their 
treatment of religion.” Id. at 534-35, 117 
S.Ct. 2157.

After Boerne, the Supreme Court con­
tinued to refine the congmence and pro­
portionality framework in a series of cases 
addressing whether Congress had validly 
abrogated state sovereign immunity pursu­
ant to § 5 of the Fourteenth Amendment. 
See Nw. Austin I, 573 F.Supp.2d at 240- 
41. In the first of these cases, the Court 
struck down the Patent and Plant Variety 
Protection Remedy Clarification Act, 
which subjected states to patent infringe­
ment suits, on the ground that Congress 
had failed to identify any “pattern of pat­
ent infringement by the States, let alone a 
pattern of constitutional violations” that 
could justify the Act as an appropriate 
remedial measure under S 5. See Fla. Pre­
paid Postsecondary Educ. Expense Bd. v. 
Coll. Sav. Bank, 527 U.S. 627, 640, 119 
S.Ct. 2199, 144 L.Ed.2d 575 (1999). In­
stead, Congress appeared to have enacted 
the legislation only in “response to a hand­
ful of instances of state patent infringe­
ment that do not necessarily violate the 
Constitution.” Id. at 645—46, 119 S.Ct. 
2199. The Act also did not contain any of 
the “various limits that Congress [had] 
imposed in its voting rights measures,” 
which the Court deemed “particularly in- 
congi-uous in light of the scant support for 
the predicate unconstitutional conduct that 
Congress intended to remedy.” Id. at 647, 
119 S.Ct. 2199. Accordingly, given both 
the insufficient historical record of consti­
tutional violations and the broad scope of 
the Act’s coverage, the Court found “it 
dear that the Patent Remedy Act cannot 
be sustained under § 5 of the Fourteenth 
Amendment.” Id.

The following year in Kimel v. Fla. Bd. 
of Regents, 528 U.S. 62, 120 S.Ct. 631, 145 
I-.Ed.2d 522 (2000), the Court similarly



456 811 FEDERAL SUPPLEMENT, 2d SERIES

held that Congress’s abrogation of state 
sovereign immunity in the Age Discrimina­
tion in Employment Act, which permitted 
suits for money damages against state em­
ployers alleged to have discriminated on 
the basis of age, exceeded Congress’s au­
thority under § 5. While reaffirming that 
“Congress’ power ‘to enforce’ the [Four- 
teenthl Amendment includes the authority 
both to remedy and deter violations of 
lights guaranteed thereunder by prohibit­
ing a somewhat broader swath of conduct” 
than that which the Amendment itself pro­
scribes, 528 U.S. at 81, 120 S.Ct. 631, the 
Court nonetheless found that Congress 
had exceeded this enforcement power bv 
failing to identify “any pattern of age dis­
crimination by the States, much less any 
discrimination whatsoever that rose to the 
level of constitutional violation,” id. at 88, 
120 S.Ct. 631.

Then, in Bd. of Trustees of Univ. of Ala. 
v. Garrett, 531 U.S. 356, 121 S.Ct. 955, 148 
L.Ed.2d 866 (2001), the Court again ap­
plied congruence and proportionality re­
view to strike down § 5 enforcement legis­
lation, finding that the provision of Title I 
of the Americans with Disabilities Act 
(“ADA”) that permitted individuals to sue 
states for money damages exceeded Con­
gress’s Fourteenth Amendment enforce­
ment authority. See 531 U.S. at 374, 121 
S.Ct. 955. As in Boerne, the Supreme 
Court in Garrett compared the legislative 
record amassed by Congress in support of 
the ADA with that consider ed by Congress 
in enacting the Voting Rights Act. 
Whereas Congress in passing the Voting 
Rights Act had documented “a marked 
pattern of unconstitutional action by the 
States,” id., Congress in enacting the ADA 
had cited only “half a dozen examples” of 
state-sponsored discrimination against the 
disabled, id. at 369, 121 S.Ct. 955. These 
incidents fell “far short of even suggesting 
the patter n of unconstitutional discrimina­
tion on which $ 5 legislation must be 
based.” Id. at 370, 121 S.Ct. 955. The

Court also contrasted the ADA’s sweeping 
nation-wide mandate “for the elimination 
of discrimination against individuals with 
disabilities” with the Voting Rights Act’s 
more “limited remedial scheme designed to 
guarantee meaningful enforcement of the 
Fifteenth Amendment in those areas of the 
Nation where abundant evidence of States’ 
systematic denial of those rights was iden­
tified.” Id. at 373, 121 S.Ct. 955 (internal 
quotation marks and citation omitted). 
This comparison of the ADA to the Voting 
Rights Act made clear “[tlhe ADA’s consti­
tutional shortcomings.” Id.

But after using congruence and propor­
tionality review to strike down four sepa­
rate pieces of § 5 enforcement legislation, 
the Court most recently held that two 
statutes enacted pursuant to Congress’s 
Fourteenth Amendment enforcement au­
thority were, in fact, congruent and pro­
portional. See Hibbs, 538 U.S. at 724, 123 
S.Ct. 1972; Tennessee v. Lane, 541 U.S. 
509, 533-34, 124 S.Ct. 1978, 158 L.Ed.2d 
820 (2004). In Hibbs, the Court upheld 
the constitutionality of the family-care 
provision of the Family and Medical 
Leave Act (“FMLA”), and in Lane the 
Court found that Title II of the ADA—as 
applied to claims by the disabled alleging 
that they had been denied access to the 
courts because of their disability—consti­
tuted a valid exercise of Congress’s § 5 
enforcement power. See Hibbs, 538 U.S. 
at 724, 123 S.Ct. 1972; Lane, 541 U.S. at 
533-34, 124 S.Ct. 1978. Significantly, both 
statutes sought to protect a class or right 
that receives heightened judicial scrutiny: 
namely, “suspect gender classifications 
(the FMLA) and the fundamental right of 
access to the courts (ADA Title II).” See 
Hie. Austin  /, 573 F.Supp.2d at 241. As a 
result, “ ‘it was easier for Congress to 
show a pattern of state constitutional vio­
lations’ than in Garrett or Kirnel, both of 
which concerned legislation that targeted 
classifications subject to rational-basis re­



457SHELBY COUNTY, ALA. v. HOLDER
C ite  as  811 F .S u p p .2 d  424 (D .D .C . 2011)

view.” Lane, 541 U.S. at 529, 124 S.Ct. 
1978 (quoting Hibbs, 538 U.S. at 736, 123 
S.Ct. 1972). Given the nature of the clas­
sification at issue, the Court in Hibbs 
compared the showing needed to uphold 
the FMLA to that necessary to sustain 
the Voting Rights Act. Congress was 
“similarly successful” in demonstrating a 
pattern of unconstitutional conduct in the 
voting rights context, the Hibbs Court ex­
plained, because racial classifications, like 
gender classifications, “are presumptively 
invalid,” so “most of the States’ acts of 
race discrimination violated the Four­
teenth Amendment.” Hibbs, 538 U.S. at 
736, 123 S.Ct. 1972.

17] After Hibbs, Lane, and the other 
cases that have applied and elaiified 
FJoeme, it is now clear that the standard 
for reviewing Congress’s enactment of re­
medial, prophylactic legislation under § 5 
of the Fourteenth Amendment involves 
three steps. See Nw. Austin I, 573 
F.Supp.2d at 268-69. First, the court 
must “identify the constitutional right or 
rights that Congress sought to enforce” 
when it enacted the challenged legislation. 
Lane, 541 U.S. at 522, 124 S.Ct. 1978; see 
also Garrett, 531 U.S. at 365, 121 S.Ct. 955 
(explaining that the court must “identify 
with some precision the scope of the con­
stitutional right at issue”); Fla. Prepaid, 
527 U.S. at 652, 119 S.Ct. 2199 (noting that 
“the first step of the inquiry . . .  is to 
determine what injuiy Congress sought to 
prevent or remedy with the relevant legis­
lation”). Second, it must “examine wheth­
er Congress identified a histoiy and pat­
tern of unconstitutional [conduct] by the 
States” that justified the enactment of the 
remedial measure. Garrett, 531 U.S. at 
368, 121 S.Ct. 955. Finally, the court must 
decide whether the challenged legislation 
constitutes “an appropriate response” to 
the identified “history and pattern” of un­
constitutional conduct, Lane, 541 U.S. at 
530, 124 S.Ct. 1978—in other words, 
whether is it “congruent and proportional

to the targeted violation,” Garrett, 531 
U.S. at 374, 121 S.Ct. 955; Hibbs, 538 U.S. 
at 737, 123 S.Ct. 1972.

C. Boerne Governs Challenges to Con­
gress’s Enforcement Power Under 
Both § 2 of the Fifteenth Amend­
ment and § 5 of the Fourteenth 
Amendment

The only remaining question, then, is 
whether, notwithstanding the Court’s ar­
ticulation and refinement of the congru­
ence and proportionality framework in the 
context of challenges to Congress’s en­
forcement power under § 5 of the Four­
teenth Amendment, a different standard of 
review nonetheless governs Congress’s ex­
ercise of its “parallel power” to enforce § 2 
of the Fifteenth Amendment. Although 
Boerne and “the cases that define the lim­
its of Congress’s enforcement power have 
focused primarily on that power as grant­
ed by Section 5 of the Fourteenth Amend­
ment,” this Court agrees with the Second 
Circuit’s deteimination that there is “no 
significant reason to conclude that the 
scope of the enforcement power under the 
two amendments is different.” See Hay­
den, 449 F.3d at 331 n. 5.

To begin with, the language of the en­
forcement clauses of the Fourteenth and 
Fifteenth Amendments is almost identical, 
as they both reference Congress’s ability 
to enforce the Amendment through the 
enactment of “appropriate” legislation. 
See id.; compare U.S. C onst , amend. XIV, 
§ 5 (“Congress shall have the power to 
enforce, by appropriate legislation, the 
provisions of this article”) with U.S. C onst . 
amend. XV, § 2 (“Congress shall have 
power to enforce this article by appropri­
ate legislation”). Moreover, the two 
amendments have similar origins and his­
tories. See, e.g., Pamela S. Karlan, Two 
Section Twos and Two Section Fives: Vot­
ing Rights and Remedies Aft.er Flores, 39



458 811 FEDERAL SUPPLEMENT, 2d SERIES

Wm , 4 Ma*v L-Rev. 725, 725 n. 5 (1998) gent congruence and proportionality analy- 
(expiaining that “because the two amend­
ments are rough contemporaries and their 
enforcement power provisions are articu­
lated in similar terms, the [Boeme ] analy­
sis surely carries over” to the Fifteenth 
Amendment conlext). And perhaps most 
importantly, the Supreme Court has ex­
pressly “equated Congress’s enforcement 
power under the two amendments” on a 
number of occasions, both before and after 
Boeme. See Hayden, 449 F.3d at 331 n. 5 
(citing Garrett, 531 U.S. at 373 n. 8, 121 
S.Ct. 955; Boeme, 521 IJ.S. at 517-18, 117 
S.Ct. 2157; Katzenbach v. Morgan, 384 
U.S. at 650-51, 86 S.Ct. 1717).

Far from implying that the Fourteenth 
and Fifteenth Amendments were intended 
to be “ ‘enforced’ in different ways," Hay­
den, 449 F.3d at 331 n. 5, Boeme itself is 
also best read to mean that the nature of 
Congress’s enforcement powers under the 
two amendments is the same. In Boeme, 
the Supreme Court relied on the Voting 
Rights Act as upheld in Katzenbach and 
City of Rome as a paradigmatic example of 
legislation that satisfies the congruence 
and proportionality test, contrasting the 
Voting Rights Act with RFRA in order to 
illustrate RFRA’s constitutional deficien­
cies. See, e.g., 521 U.S. at 518, 525-26, 
530—33, 117 S.Ct. 2157. Shelby County is 
correct to point out that Boem e’s repeated 
reliance on Katzenbach and City of 
Rome both of which were decided under 
§ 2 of the Fifteenth Amendment—would 
be “misplaced,” see Pl.’s Mot. at 19, to say 
the least, if § 5 enforcement legislation 
“were to be judged against an entirely 
different constitutional metric” than that 
applicable to § 2 enforcement legislation, 
see Pl.’s Reply at 12; see also Evan Cam- 
inker, “Appropriate ” Means-Ends Con­
straints on Section 5 Powers, 53 S tan . 
L . R f.v 1127, 1191 (2001) (stating that 
Boeme “strongly suggests that Section 2 
measures designed to enforce the Fif­
teenth Amendment are subject to strin­

gs as well”); Mark A. Posner, Time is 
Still On its Side: Why Congressional 
Reauthorization of Section 5 of the Voting 
Rights Act Represents a Congruent and 
Proportional Response to Our Nation’s 
History of Discrimination in Voting, 10 
N.Y.U. J .  Legis. & P ub . P oi.’y 51, 89 (2006) 
(noting that Boeme “strongly intimated 
that the same analysis applies when as­
sessing Congress’s authority under the 
two amendments to enact prophylactic leg­
islation”).

Boeme’s characterization of Katzenbach 
as a case that “revolve[d] around the ques­
tion whether § 5 legislation can be con­
sidered remedial,” see Boeme, 521 U.S. at 
525, 117 S.Ct. 2157 (emphasis added), also 
cannot be reconciled with the contention 
that different modes of analysis govern 
judicial review of § 5 and § 2 enforcement 
legislation. Again, this is because the 
Court in Katzenbach upheld the challenged 
provisions of the Voting Rights Act not as 
a valid exercise of Congress’s power under 
§ 5 of the Fourteenth Amendment, but as 
“a valid means of carrying out the com­
mands of the Fifteenth Amendment.” 
Katzenbach, 383 U.S. at 337, 86 S.Ct. 803. 
Indeed, the Supreme Court in Katzenbach 
never even mentioned § 5 of the Four­
teenth Amendment. To the extent that 
Katzenbach “revolvefd] around” the issue 
of what constitutes appropriate § 5 legisla­
tion, then, it could only be because the test 
for determining the validity of S 5 legisla­
tion is the same as that for determining 
the validity of § 2 legislation.

It is also significant that the Supreme 
Court in Boeme did not purport to over­
rule Katzenbach v. Morgan, or the half- 
centuiy of precedent that has treated the 
nature of the enforcement power conferred 
by the Fourteenth and Fifteenth Amend­
ments as coextensive. See Katzenbach v. 
Morgan, 384 U.S. at 651, 86 S.Ct. 1717



SHELBY COUNTY, ALA. v. HOLDER
C ite  as  811 F .S u p p .2 d  424 (D D C. 2011)

459

(explaining that McCulloch v. Maryland 
and Ex Parte Virginia provide the defini­
tion of what constitutes “appropriate” en­
forcement legislation in both the Fifteenth 
and Fourteenth Amendment contexts). 
The Supreme Court in Boeme began its 
analysis by quoting Katzenbach v. Mor­
gan’s acknowledgment that “§ 5 is ‘a posi­
tive grant of legislative power.’ ” Boeme, 
521 U.S. at 517, 117 S.Ct. 2157 (quoting 
Katzenbach v. Morgan, 384 U.S. at 651, 86 
S.Ct. 1717). And it then recited the tradi­
tional articulation of “the scope of Con­
gress’ § 5 power” as laid out in Ex Parte 
Virginia, thereby suggesting that the con- 
gi lienee and proportionality framework 
was a mere elaboration of those “broad 
terms.” See Boeme, 521 U.S. at 517-18, 
117 S.Ct. 2157.

Under Katzenbach and City of Rome, 
Ex Parte Virginia’s definition of “appro­
priate” legislation under the Thirteenth 
and Fourteenth Amendments also governs 
what constitutes “appropriate” legislation 
under the Fifteenth Amendment. See 
Katzenbach., 383 U.S. at 326, 86 S.Ct. 803; 
City of Rome, 446 U.S. at 174-75, 100 S.Ct. 
1548. Hence, the Supreme Court’s elabo­
ration of Ex Parte Virginia in Boeme 
would seem to apply just the same in the 
Fifteenth Amendment context, at least in 
the absence of any indication that Katzen­
bach and City of Rome were incorrect to 
rely on a ii 5 case in delineating the scope 
of Congress’s § 2 power. But the Su­
preme Court in Boeme gave no such indi­
cation. In fact, it suggested just the oppo­
site, by itself relying almost exclusively on 
§ 2 cases in delineating the scope of Con­
gress’s § 5 power. See Karlan, 39 W m. & 
M ary L. R ev. at 725 n. 5 (noting that “most 
of the cases Justice Kennedy cited relied 
on Congress’s use of its enforcement pow­
er under Section 2 of the Fifteenth 
Amendment”).

The Supreme Court’s failure in Boeme 
to announce any departure from Katzen­

bach and City of Ro me can be explained by 
the fact that the congruence and propor­
tionality test does not constitute a novel 
alternative to the standard of review em­
ployed in those earlier cases; rather, it 
reflects a more detailed articulation of the 
same standard that the Court has always 
applied to assess Congress’s exercise of its 
Fifteenth Amendment enforcement power. 
In Katzenbach, the Court began with the 
first step of the Boeme framework, deter­
mining “what injuiy Congress sought to 
prevent or remedy” when it enacted the 
challenged provisions of the Voting Rights 
Act. Fla. Prepaid, 527 U.S. at 652, 119 
S.Ct. 2199; see Katzenbach, 383 U.S. at 
308, 86 S.Ct. 803 (explaining that the Act 
was designed “to banish the blight of racial 
discrimination in voting”). The Court then 
proceeded to the second step of Boeme, 
looking to whether Congress had “identi­
fied a histoiy and pattern of unconstitu­
tional [conduct) by the States,” Garrett, 
531 U.S. at 368, 121 S.Ct. 955. In so 
doing, the Supreme Court made clear that 
the “constitutional propriety” of the Act 
“must be judged with reference to the 
historical experience it reflects,” Katzen­
bach, 383 U.S. at 308, 86 S.Ct. 803, and it 
pointed to historical evidence of state- 
sponsored voting discrimination in the leg­
islative record to justify the need for the 
Act, id. at 310, 86 S.Ct. 803 (describing 
states’ use of tests and devices that were 
“specifically designed to prevent Negroes 
fr om voting”). Although the Court in Kat­
zenbach did not use the words “congruent” 
and “proportional” when assessing the 
challenged provisions of the Act, it did 
closely analyze whether Section 5 and Sec­
tion 4(b) constituted “an appropriate re­
sponse” to the “hisfoiy and pattern” of 
unconstitutional voting discrimination that 
Congress had identified, see Lane, 541 
U.S. at 530, 124 S.Ct. 1978. So, too, did 
the Court in City of Rome engage in a 
Soerwe-like analysis, upholding the 1975



460 811 FEDERAL SUPPLEMENT, 2d SERIES

reauthorization of Section 5 only after de­
scribing the evidence of voting discrimina­
tion upon which Congress had relied in 
reauthorizing the Act’s temporary provi­
sions. See City of Rome, 446 U.S. at 182, 
100 S.Ct. 1548 (finding that “at least an­
other 7 year's of statutory remedies” was 
“necessary to counter the perpetuation of 
95 years of pervasive voting discrimina­
tion”).

To the extent that the analysis under­
taken in Katzenbach and City of Rome was 
somewhat less rigorous than that applied 
in cases since Boeme, that may only be a 
reflection of the fact that where a remedial 
statute is designed to protect a fundamen­
tal right or' to prevent discrimination based 
on a suspect classification, it is “easier for 
Congress to show a pattern of state consti­
tutional violations,” as required at the sec­
ond step of Boeme. See Hibbs, 538 U.S. 
at 736, 123 S.Ct. 1972; Lane, 541 U.S. at 
529, 124 S.Ct. 1978. Because Section 5 
seeks to protect the right to vote—a “fun­
damental political right,” Yick Wo v. Hop­
kins, 118 U.S. 356, 370, 6 S.Ct. 1064, 30 
L.Ed. 220 (1886)—and to prohibit discrimi­
nation based on race—an “immediately 
suspect” classification, sec Johnson v. Cali­
fornia, 543 U.S. 499, 509, 125 S.Ct. 1141, 
160 L.Ed.2d 949 (2005)—the showing 
needed to substantiate Section 5 was easi­
er to make in Katzenbach and City of 
Rome than in Kimel or Garrett, which 
involved classifications subject to less 
stringent levels of constitutional scrutiny. 
See Nw. Austin I, 573 F.Supp.2d at 241.

The Attorney General relies heavily on 
Lopez, a Section 5 case decided shortly 
after Boeme, in arguing that congruence 
and proportionality review does not govern 
Shelby County’s challenge to the constitu­
tionality of Section 5. See Def.’s Reply in 
Supp. of Def.’s Mot. for Summ. J. [Docket 
Entry 67] at 6. But such reliance is unwar­
ranted. In Lopez, the Supreme Court ex­
amined an as-applied challenge to Section

5 brought by Monterey County, California, 
a political subdivision covered by Section 
4(b). See Lopez, 525 U.S. at 282, 119 S.Ct. 
693. Monterey County alleged that Sec­
tion 5 did not apply to its implementation 
of a voting change required by state law, 
since enactment of the change was non- 
discretionary and California—the source of 
the change-was not itself a covered juris­
diction subject to Section 5. Id. Rejecting 
this argument, the Court held that “the 
Act’s preclearance requirements apply to 
measures mandated by a noncovered State 
to the extent that these measures will ef­
fect a voting change in a covered county.” 
Id. at 269, 119 S.Ct. 693. The Court then 
briefly addressed the plaintiffs contention 
that Section 5 was unconstitutional to the 
extent that it was interpreted to apply “to 
voting measures enacted by States that 
have not been designated as historical 
wrongdoers in the voting rights sphere.” 
Id. at 283, 119 S.Ct. 693. Citing Katzen­
bach and City of Rome, the Court ex­
plained that it had previously upheld Sec­
tion 5 as a valid exercise of Congress’s 
Fifteenth Amendment enforcement au­
thority—despite its “intrusion into areas 
traditionally resowed to the States”—and 
that no different result was required just 
because Section 5 “is held to cover acts 
initiated by non-covered States.” Id. The 
Court then referenced Boeme as having 
held that Congress may, under the Four­
teenth Amendment, “ ‘intmde[ ] into legis­
lative spheres of autonomy previously re­
served to the States.’ ” Id. (quoting 
Boeme, 521 U.S. at 518, 117 S.Ct. 2157). 
Nowhere in Lopez did the Supreme Court 
mention either “congruence and propor­
tionality” or “rational basis” review, or 
purport to apply either standard to Section 
5. To the extent that Lopez cuts in either 
direction, then, the Court regards it as 
reaffirming that Katzenbach, City of 
Rome, and Boeme are consistent in their 
evolving descriptions of Congress’s en­



SHELBY COUNTY, ALA. v. HOLDER
C ite  as 81 I F .S upp .2 il 424 (D .D .C. 2011)

461

forcement power under the Fourteenth 
and Fifteenth Amendments.

Because the Court finds no basis upon 
which to differentiate between the stan­
dards of review to be applied in the Four­
teenth and Fifteenth Amendment enforce­
ment contexts, it need not decide whether 
the 200G reauthorization of Section 5 and 
Section 4(b) constituted an exercise of 
Congress’s Fourteenth or Fifteenth 
Amendment enforcement authority, or a 
kind of hybrid legislation enacted pursuant 
to both amendments. Shelby County cor­
rectly points out that to date “[t]he Fif­
teenth Amendment has been the exclusive 
basis for upholding Section 5.” See Pl.’s 
Reply at 47, 49 n. 15; see also City of 
Rome, 44G U.S. at 173, 100 S.Ct. 1548; 
Katzenbach, 383 U.S. at 327, 86 S.Ct. 803; 
Allen, 393 U.S. at 588, 89 S.Ct. 817 (Har­
lan, J., concurring in part, dissenting in 
pai't) (explaining that “Congress conscious­
ly refused to base s[ection] 5 of the Voting 
Rights Act on its powers under the Four­
teenth Amendment”). But in adopting the 
Act’s protections for language minorities in 
1975 and then extending them in 200G, 
Congress expressly relied on its Four­
teenth Amendment enforcement power as 
well, since the Fifteenth Amendment 
speaks only of discrimination on the basis 
of “race.” See Niv. Austin  /, 573
F.Supp.2d at 243-44; see also S.Rep. No. 
94-295 (1975), 1975 U.S.C.C.A.N. 774, 814- 
15 (explaining that “ft]he Fourteenth 
Amendment is added as a constitutional 
basis for these voting rights amendments” 
in order to “doubly insure the constitution­
al basis for the Act,” even though the 
Department of Justice has taken the posi­
tion that “ ‘language minorities’ are mem­
bers of a ‘race or color’ group protected 
under the Fifteenth Amendment”); 42 
U.S.C. § 1973aa-la (finding that, because 
“citizens of language minorities have been 
effectively excluded from participation in 
the electoral process,” it is necessary to 
prescribe remedial measures “to enforce

the guarantees of the fourteenth and fif­
teenth amendments”).

Some have argued that this reliance on 
the Fourteenth Amendment was unneces­
sary, and that Congress “could have relied 
solely on its Fifteenth Amendment author­
ity” in extending the Act’s protections to 
language minorities, since the Supreme 
Court has “strongly suggested” that lan­
guage minorities “qualify as racial groups” 
within the meaning of the Fifteenth 
Amendment. See, e.g., Nw. Austin I, 573 
F.Supp.2d at 243-44. Regardless, there 
are additional reasons to question whether 
Section 5 can still be viewed as pure Fif­
teenth Amendment enforcement legisla­
tion. Section 5 is designed to combat not 
only outright denials of the right to vote, 
but also vote dilution—“defined as a re­
gime that denies to minority voters the 
same opportunity to participate in the po­
litical process and to elect representatives 
of their choice that majority voters enjoy.” 
Bossier II, 528 U.S. at 359, 120 S.Ct. 86G 
(Souler, J., concurring in part, dissenting 
in part). Although there is an argument 
that measures that dilute minorities’ voting 
strength violate the Fifteenth Amend­
ment’s guarantee against “abridgment” of 
the right to vote, see id., the Supreme 
Court thus far- has “dealt with vote dilution 
only under the Fourteenth Amendment,” 
id., and has “never held that vote dilution 
violates the Fifteenth Amendment,” Bossi­
er II, 528 U.S. at 334 n. 3, 120 S.Ct. 866. 
To the extent that the Attorney General 
seeks to rely on evidence of vote dilution to 
justify the 2006 reauthorization of Section 
5, then, it might be necessary to find that 
Section 5 constitutes valid Fourteenth 
Amendment—as opposed to Fifteenth 
Amendment—enforcement legislation.
But again, this issue need not be decided, 
in light of the Court’s conclusion that 
Boeme provides the proper mode of analy­
sis to assess challenges to Congress’s en­
forcement power under both § 5 of the



462 811 FEDERAL SUPPLEMENT, 2d SERIES

Fourteenth Amendment and § 2 of the 
Fifteenth Amendment. Hence, irrespec­
tive of whether Section 5 is considered § 2 
enforcement legislation, § 5 enforcement 
legislation,11 or a kind of hybrid legislation 
enacted pursuant to both amendments, it 
can only be upheld if it is “congruent and 
proportional” to the problem of unconstitu­
tional racial discrimination in voting.

III. Application of Boerne to the 2006 
Extension of Section 5

A. The Scope of the Constitutional 
Right At Issue

f8] The first step in determining 
whether the 2006 extension of Section 5 
passes muster under Boerne is “to identify 
with some precision the scope of the con­
stitutional right at issue.” See Garrett, 
531 U.S. at 365, 121 S.Ct. 955; see also 
Lane, 541 U.S. at 522, 124 S.Ct. 1978. 
Where a statute is designed to protect a 
fundamental right or to prevent discrimi­
nation based on a suspect classification, it 
is “easier for Congress to show a pattern 
of state constitutional violations,” as re­
quired at the second step of the Boerne 
analysis. See Hibhs, 538 U.S. at 736, 123 
S.Ct. 1972. In other words, Congress is 
more likely to be able to identify unconsti­
tutional state action justifying remedial, 
prophylactic enforcement legislation when 
it seeks to protect against discrimination 
based on a classification like gender, 
“which triggers heightened scrutiny,” see 
Hibbs, 538 U.S. at 736, 123 S.Ct. 1972, 
than when it seeks to protect against dis­
crimination based on a trait such as dis­
ability, which “incurs only the minimum 
‘rational-basis’ review,” see Garrett., 531 11

11. In Hibbs, the Suprem e Court noted that it 
had  previously upheld "certain prophylactic 
provisions of the Voting Rights Act as valid 
exercises of Congress' § 5 power, including 
the literacy test ban and preclearance  require­
ments for changes in States ' voting p roce­
dures."  Hibbs, 538 U.S. at 737-38,  123 S.Ct. 
1972. In support of this proposit ion, howev

U.S. at 366, 121 S.Ct. 955. This is because 
“the heightened level of constitutional 
scrutiny” that accompanies a suspect clas­
sification or a fundamental right means 
that “the historical problems” identified by 
Congress with respect to that class or 
right are more likely to amount to consti­
tutional violations, and a history of consti­
tutional violations is a necessaiy predicate 
for the enactment of remedial enforcement 
legislation under the Reconstiuction 
Amendments. See Posner, 10 N.Y.U.J. 
L eg is . & P ub . P ol’y at 87. It is for this 
reason that “the Court gives Congress sig­
nificant leeway to craft broad remedial 
prohibitions when fundamental rights or 
protected classes are at stake.” Nw. Aus­
tin I, 573 F.Supp.2d at 270.

[9] Significantly, Section 5 not only 
seeks to protect the right to vote—a “fun­
damental political right, because [it isj pre- 
seivative of all rights,” Yick Wo, 118 U.S. 
at 370, 6 S.Ct. 1064—but also seeks to 
protect against discrimination based on 
race, “the classification of which we have 
been the most suspect,” see M.L.B. v. 
S.L.J., 519 U.S. 102, 135, 117 S.Ct. 555, 136 
L.Ed.2d 473 (1996) (Thomas, J„ dissent­
ing). Because Section 5 is designed to 
protect “both the quintessential suspect 
classification (race) and the quintessential 
civil right (the franchise),” defendant-inter- 
venors are collect that Congress acted at 
the “zenith of its constitutional enforce­
ment authority” when it reauthorized Sec­
tion 5 in 2006. See Harris Def.-Ints.’ Mot. 
for Summ. J. (“Harris Mot.”) [Docket En- 
tiy 551 at 22; see also Nathaniel Persily, 
The Promise and Pitfalls of the Nerv Vot­

er, the Suprem e Court cited only one case 
that dealt with preclearance  requirements , 
and that case—Karzenbacli—upheld Section 5 
as a valid exercise of Congress's § 2 power, 
not its § 5 power. See id. (citing Kalzenbach  
v. Morgan, 384 U.S. 641, 86 S.Ct. 1717: Ore­
gon v. M ilchcll, 400 U.S. 112, 91 S.Ct. 260; 
Kaizenbacli, 383 U.S. 301, 86 S.Ct. 803).



SHELBY COUNTY, ALA. v. HOLDER
C ilc  as 8 1 1 F .S u p p .2 d  424 (D .D .C . 2011)

463

ing Rights Act, 117 Yale L.J. 174, 176 
(2007) (explaining that Congress “acted at 
the apex of its power to enforce the guar­
antees of the post-Civil War Amendments” 
when it enacted the Voting Rights Act). 
Just as in Hibbs and Lane, then, it is 
“easier for Congress to show a pattern of 
state constitutional violations” justifying 
the need for Section 5 than when Congress 
seeks to enforce rights subject to lesser- 
levels of constitutional review, since “racial 
classifications and restrictions on the light 
to vote-like gender discrimination (Hibbs ) 
and access to the courts (Lane )—are ‘pre­
sumptively invalid.’ ” Nw. Austin  /, 573 
F.Supp.2d at 270 (quoting Hibbs, 538 U.S. 
at 736, 123 S.Ct. 1972).

B. Evidence of Unconstitutional Vot­
ing Discrimination in the Legisla­
tive Record

Having determined “the metes and 
bounds of the constitutional right[s] in 
question,” the core issue is whether Con­
gress succeeded in identifying “a history 
and pattern” of unconstitutional, state- 
sponsored voting discrimination to justify 
the 2006 reauthorization of Section 5. See 
Garrett. 531 U.S. at 368, 121 S.Ct. 955. 
Shelby County argues that the evidence of 
so-called “second generation barriers” to 
voting upon which Congress relied in 2006 
when it re-authorized Section 5—including 
evidence of racially polarized voting, pre­
clearance statistics, the continued filing of 
Section 2 cases, and the dispatch of federal 
obsei-vers—cannot justify the extension of 
Section 5, since “none of this evidence 
comes close to proving the existence of 
pervasive, intentional discrimination.” See 
FI,’s Mot. at 32. Instead, Shelby County 
contends, there are only two types of evi­
dence that can be used to establish the 
constitutional necessity of Section 5: “(1) 
direct evidence of widespread, intentional 
voting discrimination and gamesmanship; 
and (2) registration data, turnout statistics, 
and the election of minorities to public

office.” Pl.’s Reply at 37 (emphasis add­
ed). This argument is flawed in several 
respects.

To begin with, “[i]n identifying past ev­
ils, Congress obviously may avail itself of 
information from any probative source.” 
Katzcnbach, 383 U.S. at 330, 86 S.Ct. 803. 
To be sure, there must be an established 
“pattern of constitutional violations” in or­
der to justify remedial, prophylactic legis­
lation like Section 5, see Fla. Prepaid, 527 
U.S. at 640, 119 S.Ct. 2199, and discrimina­
tory intent is a necessary element of a 
Fourteenth or Fifteenth Amendment viola­
tion, see, e.g., City of Mobile, 446 U.S. at 
62, 67, 100 S.Ct. 1490. Shelby County is 
therefore correct that some evidence of 
purposeful state-sponsored voting discrimi­
nation is needed to sustain Section 5. But 
Shelby County is incorrect to suggest that 
such evidence must be “direct.” See Pl.’s 
Reply at 37. To the contrary, the Su­
preme Court has repeatedly recognized 
that unconstitutional “discriminatory in­
tent need not be proved by direct evi­
dence.” See Rogers v. Lodge, 458 U.S. 
613, 618, 102 S.Ct. 3272, 73 L.Ed.2d 1012 
(1982) (emphasis added) (citing Arlington 
Heights v. Metro. Housing Dev. Corp., 429 
U.S. 252, 265, 97 S.Ct. 555, 50 L.Ed.2d 450 
(1977); Washington v. Davis, 426 U.S. 229, 
242, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976)). 
Rather, “an invidious discriminatory pur­
pose may often be inferred from the totali­
ty of the relevant facts, including the fact, 
if it is true, that the law bears more heavi­
ly on one race than another.” Washington 
v. Davis, 426 U.S. at 242, 96 S.Ct. 2040. 
Moreover, as the Supreme Court in Kat- 
zenbach made clear, Congress is not bound 
by the standards of proof applicable in 
judicial proceedings “when it prescribes 
civil remedies against other organs of gov­
ernment under s[ectionJ 2 of the Fifteenth 
Amendment.” See Katzenbach, 383 U.S. 
at 330, 86 S.Ct. 803. Because the discrimi- 
natoiy effects of a challenged practice can



464 811 FEDERAL SUPPLEMENT, 2d SERIES

constitute “powerful evidence of the intent 
with which it was adopted or maintained,” 
Continuing Need 186 (prepared statement 
of Pamela S. Karlan), this Court would be 
remiss if it were to limit its examination of 
the legislative record to judicially proven 
instances of discriminatory intent.

Shelby County’s suggestion that circum­
stantial evidence of voting discrimination 
cannot justify the 2006 reauthorization of 
Section 5 is also belied by City o f Rome. 
There, in upholding the 1975 extension of 
Section 5, the Supreme Court pointed to 
no recent “direct” evidence of intentional 
voting discrimination by covered jurisdic­
tions. Instead, it found that Section 5’s 
reauthorization was justified based on the 
country’s history of intentional discrimina­
tion in voting, together with more recent 
circumstantial evidence of continued voting 
discrimination, which included evidence of 
racial disparities in voter registration and 
turnout, the number of minority elected 
officials, and the nature and number of 
Section 5 objections. See City of Rome, 
446 U.S. at 181, 100 S.Ct. 1548. Clearly, 
then, such evidence is—at the very least— 
relevant in assessing whether Section 5 
remains “justified by current needs.” Nw. 
Austin II, 129 S.Ct. at 2512.

Not only is Shelby County incorrect to 
suggest that Section 5 can only be sus­
tained on the basis of recent “direct” evi­
dence of intentional voting discrimination, 
but it is also wrong to suggest that Con­
gress lacked such evidence when it reau­
thorized Section 5 in 2006. Having exam­
ined the 2006 legislative record, this 
Court—like the three-judge court in Niv. 
Austin I—has found ample evidence of 
puiposeful voting discrimination by cov­
ered jurisdictions. The record describes 
one instance in which Mississippi state leg­
islators opposed a redistricting plan that 
would have given African-Americans an 
increased opportunity to elect representa­
tives of their choice, referring to the plan

“on the House floor as the ‘black plan’ and 
privately as ‘the n-plan.’” S.Rep. No. 
109-295, at 14. On another occasion, 
Georgia’s Chair of its House Reapportion­
ment Committee told his colleagues in the 
Georgia legislature that he was uncertain 
as to the outcome of the state’s redistrict­
ing process, “because the Justice Depart­
ment is trying to make us draw nigger 
districts and I don’t want to draw nigger 
districts.” See Busbee v. Smith, 549 
F.Supp. 494, 501 (D.D.C.1982); see also 
H.R.Rep. No. 109-A78, at 67; Voting 
Rights Act: The Judicial Evolution of the 
Retrogression Standard, Hearing Before 
the Subcomm. on the Constitution of the 
H. Comm, on the Judiciary, 109th Cong. 
54 (Nov. 9, 2005) (prepared statement of 
Laughlin McDonald). In Shelby County’s 
home state of Alabama, there were reports 
of voting officials “closing the doors on 
African-American voters before the . . .  
voting hours were over,” see 1 Evidence of 
Continued Need 182 (Nat’l Comm’n Re­
port), and of white voting officials using 
racial epithets to describe African-Ameri­
can voters in the presence of federal ob­
servers, see S.Rep. No. 109-295, at 130, 
132. In both Texas and South Carolina, 
witnesses described various kinds of intim­
idation and harassment being directed at 
blacks at the polls, see 1 Evidence of Con­
tinued Need 138 (Nat’l Comm’n Report); 
S.Rep. No. 109-295, at 307, 311, while one 
witness from Virginia testified that “hate 
literature” had been distributed in his 
neighborhood, threatening to “lynch” Afri­
can-Americans who voted in particular 
ways, see S.Rep. No. 109-295, at 355. All 
these examples of intentional voting dis­
crimination took place not in the 1950s or 
1960s, but in the 1980s, 1990s, and 2000s.

Yet Shelby County argues that even this 
kind of evidence carries little weight, as it 
is merely “anecdotal” and such “anecdotal 
examples of intentional discrimination” 
cannot justify the continued operation of



SHELBY COUNTY, ALA. v. HOLDER
C ite as  811 F .S u p p .2 d  424 (D .D .C . 2011)

465

Section 5. See Pl.’s Reply 39. Again, this 
Court disagrees. As Professor Theodore 
Arlington explained in his 2000 testimony 
before the Senate Judiciary Committee, 
“[t]he examination of specific cases cannot 
be dismissed as mere anecdotes,” because 
“anecdote is the singular of data.” Cow- 
tinning Need 26 (responses of Theodore S. 
Arrington to questions submitted by Sena­
tors Cornyn, Coburn, Leahy, Kennedy, 
and Kohl) (“Arlington Responses”); see 
also Understanding the Benefits and Costs 
oj Section 5 Pre-Clearance, Hearing Be­
fore the S. Comm, on the Judiciary, 109th 
Cong. 19 (May 17, 2006) (“Benefits and 
Costs") (testimony of Drew S. Days III) 
(explaining that to characterize “examples 
that are quite concrete . . . violations of 
the Voting Rights Act . . .  as anecdotes, I 
think, is really to miss the point” since 
these “so-called anecdotes go light to the 
very heart of the matter”). Taken togeth­
er, the large collection of anecdotes in the 
legislative record constitutes a valid form 
of data that must be assessed and 
weighed—not dismissed as “isolated exam­
ples” of voting discrimination, see Pl.’s Re­
ply at 39.

Anecdotes are by no means the only 
form of data in the legislative record that 
shows the continued existence of unconsti­
tutional voting discrimination by covered 
jurisdictions. One study relied on by Con­
gress found that 89% of the 209 objections 
to redistricting plans in the 1990s were 
based, at least in part, on discriminatoiy 
intent. See Preclearance Standards 181 
(Peyton McCrary et al., “The End of Pre­
clearance As We Knew It: How the Su­
preme Court Transformed Section 5 of the 
Voting Rights Act”) (hereinafter, 
“McCrary Study”). In other words, the 
Justice Department determined that dis­
criminatory purpose was a motivating fac­
tor in no less than 186 of the redistricting 
plans proposed by covered jurisdictions 
during the 1990s. Id. at 177, 181. Anoth­
er study in the legislative record identified

24 lawsuits involving more than one hun­
dred instances of intentionally discrimina­
tory conduct in voting since 1982. See 
Impact and Effectiveness 986 (Katz 
Study). Such evidence can hardly be dis­
missed as “anecdotal.”

Ultimately, an assessment of all the evi­
dence in the legislative record confirms 
that Congress was, in fact, responding to 
what it reasonably perceived to be a con­
tinuing histoiy and pattern of unconstitu­
tional conduct by covered jurisdictions 
when it reauthorized Section 5 in 2006. 
Although some scholars voiced concern 
during the 2006 reauthorization hearings 
that “the Act has been so effective it will 
be hard to produce enough evidence of 
intentional discrimination by the states so 
as to justify the extraordinary preclear­
ance remedy for another- 25 years,” see, 
e.g., Introduction to Expiring Provisions 
216 (prepared statement of Richard L. Ha- 
sen) (“Hasen Prepared Statement”); id. at 
221 (prepared statement of Samuel Issa- 
charoff) (“Issacharoff Prepared State­
ment”), Congress succeeded in doing just 
that. Despite the marked improvements 
in minority political participation over the 
last several decades—due, in large part, to 
the effectiveness of the Voting Rights 
Act—the 2006 legislative record reveals 
that, just as in 1975, “ ‘a bleaker side of 
the picture yet exists.’ ” City of Rome, 
446 U.S. at 180, 100 S.Ct. 1548 (internal 
citations omitted).

This Court will begin, as did the three- 
judge court in Nw. Austin I, by examining 
the three types of evidence relied on by 
the Supreme Court in City of Rome when 
it upheld the 1975 reauthorization of Sec­
tion 5—evidence of (1) racial disparities in 
voter registration (and turnout); (2) the 
number of minority elected officials; and 
(3) the nature and number of Section 5 
objections. The Court will then assess the 
other types of evidence cited by Congress



466 811 FEDERAL SUPPLEMENT, 2d SERIES

when it reauthorized Section 5 in 2006, 
including evidence of (4) more information 
requests; (5) Section 5 preclearance suits; 
(6) Section 5 enforcement actions; (7) Sec­
tion 2 litigation; (8) the dispatch of federal 
obsewers; (9) racially polarized voting; 
and (10) Section 5’s deterrent effect. In 
the course of its review, the Court will call 
particular attention to the evidence of in­
tentional, state-sponsored voting discrimi­
nation contained in the legislative record, 
keeping in mind that there must be “a 
history and pattern of unconstitutional 
[conduct] by the States” to justify a reme­
dial, prophylactic measure like Section 5. 
See Garrett, 531 U.S. at 368, 121 S.Ct. 955.

1. Minority Voter Registration 
and Turnout

Shelby County points to the “dramatic 
rise in African-American voter registra­
tion and turnout rates” since 1965 as evi­
dence that Section 5’s protections are no 
longer constitutionally justified. See Pl.’s 
Reply at 44; see also Pl.’s Mot. at 25-26. 
It is tine that there has been a substantial 
increase in black voter registration and 
turnout in the South since the Voting 
Rights Act was first enacted. See 1 Evi­
dence of Continued Need 156-57 (Nat’l 
Comm’n Report). In 1964, the year before 
the Act’s passage, the black voter registra­
tion rate was only 32% in Louisiana, 23% 
in Alabama, and a meager 6.7% in Missis­
sippi. Id. In each of these states, the 
white voter registration rate was at least 
50 percentage points higher than the cor­
responding rate for blacks. See Katzen- 
bach, 383 U.S. at 313, 86 S.Ct. 803. Only 
ten years later, however, black voter regis­
tration rates in the South had already 
increased substantially—no doubt as a re­
sult of the Act’s prohibition of those tests 
and devices that had previously been em­
ployed to deny blacks access to the ballot. 
See S.Rep. No. 94-295, at 779. In Missis­
sippi, for example, the percentage of 
blacks who were registered to vote multi­
plied almost tenfold in the seven years

following the Act’s passage, jumping from 
6.7% in 1964 to 63.2% in 1971-1972. Id.

But in spite of these significant improve­
ments, the Supreme Court in City of Rome 
remained troubled by the “[significant dis­
parity” that “persisted between the per­
centages of whites and Negroes registered 
in at least several of the covered jurisdic­
tions.” 446 U.S. at 180, 100 S.Ct. 1548. 
In 1975, black voter registration rates in 
Alabama, Louisiana, and North Carolina 
continued to lag behind those of whites by 
as much as 23.6, 16, and 17.8 percentage 
points, respectively. See S.Rep. No. 94- 
295, at 779. Hence, while “the City of 
Rome Court acknowledged the dramatic 
progress the South had made since 1965,” 
it still “found the evidence of continued 
discrimination sufficient to justify the 1975 
extension” of the Act’s temporary provi­
sions. See Nuk Austin I, 573 F.Supp.2d at 
247. After City of Rome, then, the ques­
tion is not whether there has been sub­
stantial improvement in minority voter 
registration and turnout since the Act’s 
passage in 1965 (or even since the Act’s 
reauthorization in 1975 or 1982), but 
whether, in spite of this substantial im­
provement, there remained significant ra­
cial disparities in voter registration and 
turnout when Congress reauthorized Sec­
tion 5 in 2006. See id.

Just as in 1975, Congress in 2006 did 
find that significant disparities persisted 
between minority and non-minority voter 
registration and turnout in several juris­
dictions subject to preclearance under Sec­
tion 5. In Virginia, for example, Congress 
reported that the black voter registration 
rate in 2004 was almost 11 percentage 
points behind the corresponding rate for 
whites, while the racial disparity in voter 
turnout was even greater, with only 49% of 
blacks turning out to vote, as compared to 
63% of whites. See H.R.Rep. No. 109-478, 
at 25. Similarly, in Texas, Congress found



SHELBY COUNTY, ALA. v. HOLDER
C ile  as  81 I F .S u p p .2 d  424 (I).D .C . 2011)

467

a 20 percentage point gap in voter regis­
tration between whites and Hispanics, id. 
at 29, with an even greater gap in voter 
turnout, see S.Rep. No. 109-295, at 11. 
Nationwide, the 2004 voter . registration 
and turnout rates for Hispanics were ap­
proximately half the corresponding rates 
for whites, with only 84.3% of Hispanics 
registering and 28% turning out to vote, as 
compared to 67.9% and 60.3% for whites. 
Id. Although the difference between black 
and white voter registration and turnout 
rates was less significant, blacks nation­
wide still registered and turned out to vote 
at rates below those of whites in 2004, with 
only 64.3% of blacks registering, and 56.1% 
of blacks turning out to vote. Id.

Moreover, as the three-judge court in 
Nw. Austin I pointed out, these statistics 
understate the true disparities between 
minoiity and non-minority voter registra­
tion and turnout. That is because in com­
puting the voter registration and turnout 
rates for whites, Congress included His­
panics. See Nw. Austin /, 573 F.Supp.2d 
at 248. Given the low registration and 
turnout rates of Hispanic voters, the inclu­
sion of these voters in the “white” category 
served to lower the overall white voter 
registration and turnout rates reported by 
Congress, thereby reducing the true dis­
parity between black and white voter reg­
istration and turnout (as well as the dis­
parity between Hispanic and white voter 
registration and turnout). See id.; see 
also Persily, 117 Y ale  L.J. at 197 (explain­
ing that “once Hispanics arc taken out of 
the white category the picture changes 
considerably”). For instance, Congress 
reported that in five of the 16 states cov­
ered in whole or in part by Section 4(b) 
(California, Georgia, Mississippi, North

12. In North Carolina and Alabama, for which 
the 2004 voter registration ra te for blacks was 
lower than the rate for non-Hispanic whites, 
the voter turnout rate for blacks was higher 
than  the ra te for non-Hispanic whites. See 
2004 U.S. Census Bureau Report.  Aside from

Carolina, and Texas), voter registration 
and turnout in 2004 was higher among 
blacks than whites. See S.Rep. No. 109— 
295, at 11. But when black voter registra­
tion and turnout rates are compared to the 
rates for non-Hispanic whites, only one of 
these states (Mississippi) had higher black 
than white voter registration and turnout 
in 2004. See Nw. Austin I, 573 F.Supp.2d 
at 248. In each of the other states covered 
in whole or in part by Section 4(b) for 
which comparative data was available, vot­
er registration was lower for blacks than 
for non-Hispanic whites. See U.S. Census 
Bureau, Voting and Registration in the 
Election of November 2004 tbl. 4a., Re­
ported Voting and Registration of the To­
tal Voting-Age Population, by Sex, Race 
and Hispanic Origin, for States, available 
at http://www.census.gov/population/www/ 
socdeino/voting/cps2004.html (hereinafter, 
“2004 U.S. Census Rureau Report”) (last 
visited September 19, 2011); see also 
S.Rep. No. 109-295, at 11 (relying on 2004 
U.S. Census Bureau Report).12

In many covered states, the disparities 
between black and non-Hispanic white vot­
er registration and turnout were stark: in 
both Arizona and Florida, for example, 
voter turnout rates among non-Hispanic 
whites were more than 20 percentage 
points higher than voter Lurnout rates 
among blacks, while in Louisiana and Tex­
as, voter' registration rates among non- 
Hispanic whites were moie than five per­
centage points higher than voter- registra­
tion rates among blacks. See 2004 U.S. 
Census Bureau Report. When the data 
for non-Hispanic whites are used, the dis­
parities between black and white voter 
registration and turnout rates in Virginia

North Carolina, Alabama and Mississippi, all 
of the remaining  14 states covered in whole 
o r  in part  by Section 4(b) had lower  voter 
registrat ion and turnout rates for blacks than 
for non-Hispanic whites. See id.

http://www.census.gov/population/www/


468 811 FEDERAL SUPPLEMENT, 2d SERIES

become even more pronounced than those 
reported by Congress. Whereas Congress 
found that Virginia had a 10.8 percentage 
point racial disparity in voter registration 
and a 14 percentage point racial disparity 
in voter turnout, see H.R.Rep. No. 109— 
478, at 25, the racial disparities become 
14.2 and 16.(5 percentage points, respec­
tively, when black voter registration and 
turnout rates are compared to the rates 
for non-Hispanic whites. See 2004 U.S. 
Census Report.

The 2004 disparities between Hispanic 
and white voter registration also become 
more severe when Hispanics are taken out 
of the “white” category. Although Con­
gress reported a 20 percentage point gap 
in voter registration between Hispanics 
and whites in Texas in 2004, see H.R. Rep. 
109-478, at 29, the gap increases to 32.1 
percentage points when the rate for His­
panics is compared to the rate for non- 
Hispanic whites, see 2004 U.S. Census Re­
port. Even greater gaps between Hispan­
ics and non-Hispanic whites existed in oth­
er covered jurisdictions, with Hispanics in 
Arizona, California and Virginia register­
ing in 2004 at rates more than 40 percent­
age points lower than the corresponding 
rates for non-Hispanic whites. See id. In 
Georgia and North Carolina, the racial dis­
parities in registration rates between His­
panics and non-Hispanic whites were the 
highest of any covered jurisdictions, with 
only 9.6% of Hispanics registering to vote 
in Georgia and 13.4% of Hispanics regis­
tering to vote in North Carolina, as com­
pared to 68% and 73.2% of non-Hispanic 
whites, respectively—in other words, there 
was almost a 60 percentage point gap in 
voter registration between Hispanics and 
non-Hispanic whites in both Georgia and 
North Carolina. See id.

As the three-judge court in Nw. Austin 
I explained, these disparities in voter reg­
istration and turnout are “comparable to 
the disparity the City of Rome Court

called ‘significant.’ ” 573 F.Supp.2d at 248 
(quoting City of Rome, 446 U.S. at 180, 100 
S.Ct. 1548). In City of Rome, the Court 
deemed as “significant” the 16, 17.8, and 
23.6 percentage point disparities in voter 
registration rates then-existing between 
blacks and whites in Louisiana, North Car­
olina, and Alabama. See S.Rep. No. 94- 
295, at 779; City of Rome, 446 U.S. at 180, 
100 S.Ct. 1548. In 2004, there were 14.2, 
17.8, and 19.2 percentage point disparities 
between black and white voter registration 
rates in Virginia, Arizona, and Florida, 
respectively (using the data for non-His­
panic whites). See 2004 U.S. Census Re­
port. Moreover, there were far greater 
gaps between Hispanic and non-Hispanic 
white voter registration rates than even 
those held “significant” in City of Rome, 
with disparities nearing 60 percentage 
points in two covered jurisdictions. See id.

2. Minority Elected. Officials

Shelby County next points to the dra­
matic increase in the number of African- 
American elected officials since 1965 as 
proof that Section 5 has outlived its useful­
ness. See PL’s Mot. at 27-28; PL’s Reply 
at 46-47. Again, however, the number of 
African-American elected officials had al­
ready risen substantially by the time that 
Section 5 was reauthorized in 1975. 
Whereas there were only 72 black elected 
officials in the 11 southern states when the 
Voting Rights Act was first passed in 1965, 
there were 963 black elected officials in the 
seven southern states subject to preclear­
ance by 1974, including 68 black state leg­
islators. See S.Rep. No. 94-295, at 780. 
Yet the Supreme Court in City of Rome 
did not regard this progress as fatal to the 
1975 reauthorization of the Act’s tempo­
rary provisions. Although the Court rec­
ognized that “the number of Negro elected 
officials had increased since 1965,” see City 
of Rome, 446 U.S. at 180, 100 S.Ct. 1548, 
the Court nonetheless heeded Congress’s



SHELBY COUNTY, ALA. v. HOLDER
C ite  as 811 F .S u p p .2 d  424 (D .D .C. 2011)

469

advice “not to be misled by sheer num­
bers.” See S.Rep. No. 94-295, at 780. 
Instead, it examined the nature of the 
positions to which African-Americans had 
been elected, and found that “most held 
only minor positions, none held statewide 
office, and their number in the state legis­
latures fell far short of being representa­
tive of the number of Negroes residing in 
the covered jurisdictions.” See City of 
Rome, 446 U.S. at 181, 100 S.Ct. 1548.

As of 2000, 35 African-Americans held 
statewide office—certainly an improve­
ment from 1975—but the percentage of 
statewide elected officials who were Afri­
can-American (5%) was still significantly 
below the African-American proportion of 
the voting-age population (11.9%). See 1 
Evidence of Continued Need 156-58 (Nat’l 
Comm’n Report); H.R.Rep. No. 109-478, 
at 33. The House Committee on the Judi- 
ciaiy found that in Mississippi, Louisiana, 
and South Carolina—all of which have 
been subject to preclearance since 1965— 
no African-American had ever been elect­
ed to statewide office. See H.R.Rep. No. 
109-478, at 33. And in Alabama, only two 
African-Americans had ever been elected 
to statewide office as of 2006. See S.Rep. 
No. 109-295, at 133 (citing Benefits and 
Costs 97 (responses of Fred D. Gray to 
questions submitted by Senators Cornyn, 
Leahy, Coburn, and Kennedy) (“Gray Re­
sponses”)).

Congress also heard evidence in 2006 
that blacks were under-represented in 
state legislatures in the South based on 
their percentage of the population. Specif­
ically, the House Committee on the Judi­
ciary reported that in Alabama, Georgia, 
Louisiana, Mississippi, South Carolina, and 
North Carolina, blacks comprised 35% of 
the population, but only 20.7% of the state 
legislators. Sec H.R. Rep. 109—478, at 33. 
The House Committee on the Judiciaiy 
similarly found that the number of Latino 
elected officials had “failed to keep pace

with [their] population growth.” See id. at 
33-34. Shelby County objects to the 
Court’s reliance on such evidence in as­
sessing the continued need for Section 5, 
arguing that “proportional representation 
is not a constitutional aim.” See Pl.’s Re­
ply at 46. That may be true. But in 
upholding the constitutionality of the 1975 
reauthorization of Section 5 in City of 
Rome, the Supreme Court noted that the 
percentage of black elected officials in cov­
ered jurisdictions still fell short of their 
total percentage of the population. See 
City of Rome, 446 U.S. at 181, 100 S.Ct. 
1548. Following City of Rome, then, it is 
at least relevant that the percentage of 
minority elected officials continued to lag 
behind the minority percentage of the pop­
ulation when Congress reauthorized Sec­
tion 5 in 2006.

3. Section 5 Objections
The Supreme Court in City of Rome 

cited “ ‘[t]he recent objections entered by 
the Attorney General . . .  to Section 5 
submissions’ ” as a clear indication of the 
“ ‘continuing need for this preclearance 
mechanism.’ ” 446 U.S. at 181, 100 S.Ct. 
1548 (quoting H.R.Rep. No. 94-196, at 10- 
11). So, too, did Congress in 2006 point to 
the “hundreds of objections interposed” by 
the Attorney General in recent years as 
“fe]vidence of continued discrimination in 
voting” that warranted the reauthorization 
of Section 5. See 2006 Amendments 
§ 2(b)(4)(A), 120 Stat. at 577. Shelby 
County, however, argues that objection- 
related data cannot sustain the constitu­
tionality of Section 5 for two reasons. 
First, Shelby County points to the fact 
that the number of Section 5 objections 
“has become exceedingly small” over the 
past several decades, as the Attorney Gen­
eral objected to less than 1% of all pre­
clearance submissions between 1982 and 
2004. See Pl.’s Reply at 56 (internal cita­
tions omitted). Second, Shelby County



470 811 FEDERAL SUPPLEMENT, 2d SERIES

contends that objections are not “legiti­
mate proxies for the type of purposeful 
disci-imination needed to reauthorize Sec­
tion 5.” Pl.’s Mot. at 32. Both of these 
contentions are somewhat misleading.

With respect to Shelby County’s first 
argument, it is undeniable that the per­
centage of preclearance submissions re­
sulting in an objection—which has always 
been low—has continued to decline steadi­
ly over time. See 1 Evidence of Continued 
Need. 197 (Nat’l Comm’n Report). Where­
as the Justice Department objected to 
4.06% of all preclearance submissions from 
1968 to 1972, the objection rate dropped in 
each successive five-year interval between 
1972 and 2002, reaching a low of .05% 
during the 1998 to 2002 time-frame. See 
Introduction to Expiring Provisions 219 
(attachment to Hasen Prepared State­
ment). Since 2002, the objection rate has 
remained below 1%, with the Justice De­
partment issuing only eight objection let­
ters in response to 4,628 preclearance sub­
missions in 2003, three objection letters in 
response to 5,211 preclearance submissions 
in 2004, and one objection letter in re­
sponse to 4,734 preclearance submissions 
in 2005. See S.Rep. No. 109-295, at 13-14.

The decline in objection rates does not 
tell the full story, however. Notwithstand­
ing the low rates of objections in recent 
years, the Justice Department still object­
ed to more than 700 proposed voting 
changes between 1982 and 2006. See 
H.R.Rep. No. 1 O'M 78, at 21; S.Rep. No. 
109-295, at 13. Moreover, the National 
Commission on the Voting Rights Act re­
ported that more objections were inter­
posed by the Attorney General between 
1982 and 2004 than between 1965 and 
1982, with nine of the 16 states covered by 
Section 4(b) receiving more objections af­
ter 1982 than before. See 1 Evidence of 
Continued Need 172-73 (Nat’l Comm’n 
Report); see also H.R.Rep. No. 109-M78, 
at 21. To be sure, the two time-periods

(1965 to 1982 and 1982 to 2004) are not 
equal in length, but it remains true that a 
substantial number of objections have been 
lodged since the 1982 reauthorization of 
Section 5. According to the National Com­
mission on the Voting Rights Act, the Jus­
tice Department objected to an average of 
more than four preclearance submissions 
per month from August 1982 through De­
cember 2004. Id. at 172.

It is also significant to recall that a 
single objection can often affect thousands 
of voters, as objections are lodged not only 
in response to small-scale electoral 
changes such as the moving of a polling 
place, but also in response to large-scale 
changes such as state-wide redistricting 
plans. See Continuing Need 58 (Earls 
Responses). For example, in Alabama, 
the Justice Department objected to 39 pre­
clearance submissions from 1982 through 
2004, see 1 Evidence of Continued Need 
(Nat’l Comm’n Report) 259 (Map 5C), but 
these 39 objections included an objection 
to a congressional redistricting plan and 
several objections to county-wide redis­
tricting plans, see 1 History, Scope, & 
Purpose 109-17 (appendix to statement of 
Bradley J. Schlozman, Complete Listing of 
Objections Pursuant to Sections 3(c) and 5 
of the Voting Rights Act of 1965). In 
Louisiana, the Justice Department object­
ed to 88 voting changes between 1982 and 
2004, see 1 Evidence of Continued Need 
(Nat’l Comm’n Report) 264 (Map 5F), in­
cluding every Louisiana House of Repre­
sentatives redistricting plan that was sub­
mitted for preclearance. Indeed, from the 
passage of the Voting Rights Act in 1965 
through its reauthorization in 2006, “[nlo 
Louisiana House of Representatives redis­
tricting plan . . .  has been precleared as 
initially submitted.” Introduction to E x­
piring Provisions 152 (responses of Theo­
dore M. Shaw to questions submitted by 
Senators Specter, Cornyn, Leahy, Kenne­
dy, and Schumer) (“Shaw Responses”).



SHELBY COUNTY, ALA. v. HOLDER
C ite  as  8 11 F .S u p p .2 d  424 (I).D .C . 2011)

471

Alabama and Louisiana are by no means 
unique among covered jurisdictions with 
respect to the receipt of objections in re­
sponse to their redistricting plans. Even 
though redistricting plans accounted for 
only 2.4% of the preclearance submissions 
from 1982 through 2004, they accounted 
for 10.4% of the Section 5 objections dur­
ing that time-frame. See U.S. Commission 
on Civil Rights, Voting Rights Enforce­
ment & Reauthorization: The Department 
of Justice’s Record of Enforcing the Tem­
porary Voting Rights Act Provisions 33 
(May 200G), available at http:/Avww.usccr. 
gov/pubs/05100GVRAStatReport.pdf (last 
visited September 19, 2011). Given that 
many of these redistricting plans were 
state- or county-wide, it is perhaps unsur­
prising that Section 5 objections from 2000 
through May 2006 have aided an estimated 
663,503 minority voters. Continuing Need. 
58 (Earls Responses). According to data 
compiled by one expert, a mere nine objec­
tions to South Carolina preclearance sub­
missions during this time-frame sewed to 
protect 96,143 African-American voters, 
while six objections to Texas preclearance 
submissions sewed to protect 359,978 Afri­
can-American and Hispanic voter's. Id. 
Irrespective of the decline in objection 
rates, then, there is strong evidence that 
Section 5 has remained a “vital prophylac­
tic” tool in “protecting minority voters 
from devices and schemes that continue to 
be employed by covered States and juris­
dictions.” H.R.Rep. No. 109-478, at 21.

There are many plausible explanations 
for the recent decline in objection rates, 
aside from the optimistic one urged by 
Shelby County—i.e., that “the discrimina­
tory agenda of the covered jurisdictions 
that existed in 1965 . . .  no longer exists,” 
Pl.’s Mot. at 29. To begin with, Section 5 
submissions (and associated objections) are 
always greatest in the years immediately 
following redistricting cycles, which occur 
at the beginning of the decade. See, e.g., 
Continuing Need 54 (Earls Responses);

Introd,uction to Expiring Provisions 165— 
66 (Shaw Responses). It is therefore to be 
expected that the number of preclearance 
submissions—and hence, objections—
would be low in a mid-decade year like 
2005. See Continuing Need 54 (Earls Re­
sponses).

In addition, many have speculated that 
the Supreme Court’s 2000 decision in Bos­
sier II is a t least partially responsible for 
the post-2000 decline in objection rates. 
See, e.g., id. at 54, 69-70; Preclearance 
Standards 14 (Posner Prepared State­
ment); 1 Evidence of Continued Need 
198-99 (Nat’l Comm’n Report). As previ­
ously explained, the Supreme Court in 
Bossier II “held that discriminatory pur­
pose under Section 5 no longer is co-exten- 
sive with the ordinary meaning of discrimi­
natory purpose or with the meaning of 
discriminatory purpose under the Four­
teenth and Fifteenth Amendments.” See 
Preclearance Standards 12 (Posner Pre­
pared Statement). Instead, in Bossier II 
the Supreme Court found that discrimina­
tory purpose under Section 5 encompasses 
only “the intent to cause retrogression.” 
Id. Therefore, in order to object to a vot­
ing change under the “pur-pose” prong of 
Section 5 after Bossier II, the Justice De­
partment needed to find “not simply that 
the jurisdiction officials’ purpose was to 
discriminate, but that it was to make the 
situation for minorities worse than be­
fore—i.e., that the officials intended to ‘re­
trogress.’ ” 1 Evidence of Continued
Need (Nat’l Comm’n Report) 198. The 
difficulty of proving that state officials in­
tended to retrogress could explain the de­
cline in purpose-based objections (and 
hence, total objections) in the wake of Bos­
sier II. As one voting rights lawyer has 
pointed out, if the Bossier II  interpretation 
of “discriminatory purpose” had applied 
prior to 2000, it would have required the 
Justice Department to preclear even the 
redistricting plan proposed by the notori­



472 811 FEDERAL SUPPLEMENT, 2d SERIES

ous Georgia “state legislator who openly 
declared his opposition to drawing a ‘nig­
ger distinct,’ ” because the plan—though 
motivated by an unabashed intent to dis­
criminate—was not retrogressive. Id. at 
199.

Other potential explanations for the re­
cent decline in objection rates include 
under-enforcement of Section 5 by the 
Justice Department, which some fonner 
attorneys in the Voting Section believe to 
be the case, see 1 Evidence o f Continued 
Need 197-98 (Nat’l Comm’n Report); 
Continuing Need 54 (Earls Responses) 
(suggesting that there have been “cir­
cumstances where the Department should 
have objected, but failed to”), or the pos­
sibility that the Justice Department has 
increasingly relied on “more information 
requests” and other types of informal 
communications with covered jurisdic­
tions—rather than objection letters—as 
the primary means of preventing discrim­
inatory voting changes, Continuing Need 
57 (Earls Responses). Finally, even if 
the decline in objection rates does reflect 
increased compliance with the Voting 
Rights Act on the part of covered juris­
dictions, as some have suggested, see, 
eg-, 1 History, Scope, & Purpose 12 
(prepared statement of Bradley J. 
Schlozman) (stating that the “tiny objec­
tion rate reflects the ovei"whelming—in­
deed, near universal—compliance with 
the Voting Rights Act by covered juris­
dictions”), that is not necessarily indica­
tive of a widespread change in racial at­
titudes. Rather, it could just as easily 
mean that “covered jurisdictions have ac­
cepted Section 5 as a principle they must 
comply with whenever they make a vot­
ing change, like it or not, and they have 
developed procedures for substantially in­
creasing the likelihood of preelearance.”
1 Evidence of Continued Need 200 (Nat’l 
Comm’n Report).

But whatever the explanation for the 
declining objection rate in recent years, 
the fact remains that the Justice Depart­
ment issued 754 objection letters between 
1982 and 2000, see S. Rep. 109-295, at 13, 
many of which were based on findings of 
discriminatory intent, see Nw. Austin  I, 
573 F.Supp.2d at 221. Shelby County is 
correct that not all objection letters “in­
volve actual intentional discrimination,” see 
Pi ’s Reply at 58, given that Section 5 
prohibits a “somewhat broader swath of 
conduct,” see Kimel, 528 U.S. at 81, 120 
S.Ct. 631, than the Fifteenth Amendment 
itself proscribes. But the Attorney Gener­
al only denies preclearance to a voting 
change under Section 5 if he cannot con­
clude that the change “neither has the 
purpose nor will have the effect of denying 
or abridging the right to vote on account of 
race or color.” See 42 U.S.C. § 1973c(a). 
In its attempt to minimize the significance 
of the objection-related data in the legisla­
tive record, Shelby County ignores the 
substantial number of objections that the 
Attorney General has made under Section 
5’s “purpose” prong in recent years—even 
though, as the Nw. Austin I three-judge 
court recognized, these intent-based objec­
tions “provide particularly salient evidence 
of potentially unconstitutional state ac­
tion.” 573 F.Supp.2d at 252.

According to one study in the legislative 
record, as many as 43% of all Section 5 
objections in the 1990s were based solely 
on discriminatory intent, while another 
31% of objections were based at least in 
part on discriminatory intent. See Pre- 
clearance Standards 136, 180 tbl. 2 
(McCrary Study). In other words, “the 
intent prong was involved in a remarkable 
74 percent of all objections in that decade.” 
Id Congress also heard testimony that 
until Bossier II was decided, “the clear 
trend line, from the 1970s to the 1980s to 
the 1990s, was that discriminatory purpose 
increasingly was the basis on which Sec­



SHELBY COUNTY, ALA. v. HOLDER
C ilc  a s  811 F .S upp .2d  424 (D .D .C . 2011)

478

t,ion 5 objections were being inteiposed.” 
Id. at 13 (Posner Prepared Statement). 
From 1980 to 2000, the Attorney General 
lodged as many as 421 objections that 
were at least partially based on discrimina­
tory intent, with 234 of those objections 
based solely on discriminatory intent. Id. 
at 180 tbl. 2 (McCrary Study). Purpose- 
based objections were particularly preva­
lent in the redistricting context, as approx­
imately 80% of the Justice Department’s 
objections to post-1990 redistricting plans 
were based on discriminatory intent. Id. 
at 13 (Posner Prepared Statement). In 
light of this data, the House Committee on 
the Judiciary had ample support for its 
conclusion in 2006 that the voting changes 
being sought by covered jurisdictions 
“were calculated decisions to keep minori­
ty voters from fully participating in the 
political process.” H.R.Rep. No. 109M78, 
at 21.

The legislative record contains countless 
examples of objection letters since 1982 in 
which the Justice Department has denied 
preclearance to a jurisdiction’s proposed 
voting change because the jurisdiction 
failed to establish the absence of a dis­
criminatory purpose for its change. For 
instance, in 2001, the all-white Board of 
Aldermen in Kilmichael, Mississippi, can­
celled a general election three weeks be­
fore it was scheduled to occur—with no 
notice to the community—-after Census 
data showed that the town had recently 
become majority African-American, and 
after a significant number of African- 
Americans had been qualified as candi­
dates in the aldermen and mayoral races. 
See H.R.Rep. No. 109-478, at 36-37; Con­
tinuing Need 60, 67 (Earls Responses); 
S.Rep. No. 109-295, at 225, 230-32; 1 His­
tory, Scope, & Purpose. 1617 (appendix to 
statement of Bradley J. Schlozman, Copies 
of Objection Letters, by State, from 1980 
to October 17, 2006) (hereinafter, “Schloz­
man Appendix”). The Justice Department 
objected to the town’s decision to cancel

the election, noting the suspicious “context 
in which the town [had] reached its deci­
sion”—that is, “only after black persons 
had become a majoi-ity of the registered 
voters” and “only after the qualification 
period for the election had closed, and it 
[had] bec[o]me evident that there were 
several black candidates for office.” 1 
History, Scope, & Purjtose 1617 (Schloz­
man Appendix). Because “[t]he town’s pur­
ported non-racial rationales for the deci­
sion d[id] not withstand scrutiny,” id., the 
Justice Department forced Kilmichael to 
reschedule the election, whereupon the 
town elected its first African-American 
mayor, as well as three Afiican-American 
aldermen, see H.R.Rep. No. 109^178, at 
37.

The year after it objected to Kilmicha- 
el’s cancelled election, the Justice Depart­
ment objected to a redistricting plan pro­
posed by the city of Albany, Georgia, 
based on its detennination that Albany, 
too, had not “earned its burden of showing 
that its proposed plan was not designed 
with the intent to limit and retrogress the 
increased black voting strength.” See 1 
History, Scope, & Purpose 846 (Schlozman 
Appendix). The Justice Department ex­
amined Albany’s history of redistricting 
with respect to Ward 4, which, it found, 
revealed an “intent to maintain Ward 4 as 
a distinct that remains at the . . . level of 
70 percent white, thus eliminating any abil­
ity of black voters to elect a candidate of 
choice in this district.” Id. After the black 
population in Ward 4 doubled from 20% to 
40% during the 1980s, Albany adopted a 
redistricting plan that reduced the Ward’s 
population to 30% black. Then, after the 
black population in Ward 4 increased from 
30% to almost 51% during the 1990s, the 
city sought preclearance for another redis­
tricting plan that would have reduced the 
population in Ward 4 to 30% black. Id. at 
846^17. The Justice Department objected 
to the proposed plan, noting that “implicit”



474 811 FEDERAL SUPPLEMENT, 2d SERIES

in the plan was “an intent to limit black 
political strength in the city to no more 
than four districts.” Id. at 847.

Another intent-based objection was 
lodged against the 2001 redistricting plan 
proposed by Milden, Louisiana, in which 
the city “explicitly decided to eliminate one 
of the three existing majority minority dis­
tricts,” even though “it was not compelled 
to redraw the district,” and had been “pre­
sented with an alternative that met all of 
its legitimate criteria while maintaining the 
minority community’s electoral ability.” 
Id. at 1150-52. The Justice Department 
interposed yet another intent-based objec­
tion to a redistricting plan submitted by 
Sumter County, South Carolina, that same 
year, after- the county council “explicitly 
decided to .. . eliminate one of the four 
existing majority minority districts” de­
spite the fact that the district’s elimination 
had been “easily avoidable.” See 2 Voting 
Rights Act: Section 5 of the Act—History, 
Scope, and Purpose, Hearing before the 
Subcomm. on the Constitution of the H. 
Comm, on the Judiciary, 109th Cong. 
2082-84 (Oct. 25, 2005) (hereinafter, “2 
History, Scope, & Purpose ”) (Schlozman 
Appendix). In explaining the basis of its 
objection, the Justice Department noted 
that the county had not been forced to 
redraw the district and that it had rejected 
an alternative, non-retrogressive plan. Id. 
at 2083-84. Under the circumstances, the 
Justice Department was unable to con­
clude “that the action in question was not 
motivated by a discriminatory intent to 
retrogress.” Id. at 2084.

These are just a few examples of the 
post-1982 objections to redistricting plans 
that have been lodged—at least in part— 
on the basis of discriminatory’ intent. 
There are many others. See, e.g., 1 Histo­
ry, Scope, & Purpose 433 (Schlozman Ap­
pendix) (objecting to 1998 redistricting 
plan by Tallapoosa County, Alabama, be­
cause “the history of the instant redistrict­

ing process and its results raise serious 
concerns that the county .. . puiposely 
impaired the ability of black voters to 
elect a candidate of choice”); id. at 412 
(objecting to Greensboro, Alabama’s 1993 
redistricting plan on the ground that “the 
opportunity for black voters to elect a rep­
resentative of their choice . . . appeal's to 
have been constrained deliberately”); id. 
at 1410 (objecting to Mississippi’s 1991 
statewide legislative redistricting plan 
where it appeared “that the proposed plan 
is calculated not to provide black voters in 
the Delta with the equal opportunity for 
representation required by the Voting 
Rights Act”); id. at 830 (objecting to 2000 
redistricting plan for Webster County, 
Georgia’s board of education, where the 
plan was created shor tly after the county 
had elected its first majority-black board, 
and the county’s proffered reasons for the 
plan appeared to be “merely pretexts for 
intentionally decreasing the opportunity of 
minority voters to participate in the elec­
toral process”); id. at 1611 (objecting to 
1997 redistricting plan by Grenada, Mis­
sissippi, based on “substantial direct and 
circumstantial evidence of discriminatory 
purpose”); id. at 1516 (refusing to with­
draw objection to Greenville, Mississippi’s 
1991 redistricting plan, which “appeared 
to have been motivated by a desire on the 
part of white city councilmembers to re­
tain white control of the city’s governing 
body,” and explaining that since the plan’s 
proposal, “white city officials [have] con- 
tinuefd] to engage in race-based decision­
making and to design schemes the pur­
pose of which is to avoid black control of 
city government”).

The Justice Department’s intent-based 
objections over the last few decades have 
not been limited to redistricting plans. On 
several occasions, the Justice Department 
has suspected that discriminatory purpose 
was a motivating factor in a covered juris­
diction’s change of a polling location. In



475SHELBY COUNTY, ALA. v. HOLDER
C ite  as 8 1 I F .S u p p .2 d  424 (D .D .C . 2011)

1992, for example, the Justice Department 
objected to Johnson County, Georgia’s de­
cision to move a polling place from the 
county courthouse to the American Legion. 
In its objection letter, the Justice Depart­
ment noted that the American Legion had 
“a wide-spread reputation as an all-white 
club with a history of refusing membership 
to black applicants” and that “the Amen­
can Legion hall, itself, is used for functions 
to which only whites are welcome to at­
tend.” Id. at 727. Given its reputation 
and history, the American Legion created 
an obviously “hostile and intimidating” at­
mosphere for black voters, and had “the 
effect of discouraging black voters from 
turning out to vote.” Id. Because Johnson 
County failed to meet its burden of prov­
ing that its relocation of the polling place 
had neither a discriminatory purpose nor 
effect, the Justice Department denied pre­
clearance to the proposed change. See id.; 
see also 2 History, Scope, & Purpose 2428 
(Schlozman Appendix) (objecting to 1994 
polling place change by Marion County, 
Texas, where the change “appear[ed] to be 
designed, in part, to thwart recent black 
political participation”); id. at 2579 (ob­
jecting to 1999 polling place change by 
Dinwiddie County, Virginia, in part be­
cause “the sequence of events leading up 
to the decision to change the polling place 
. . . tends to show a discriminatory pur­
pose”); id. at 2302 (objecting to 1991 poll­
ing place change proposed by distinct in 
Lubbock County, Texas, where polling 
“site selections . . .  would seem calculated 
to discourage turnout among minority vot­
ers”).

So, too, has the Justice Department de­
nied preclearance to jurisdictions’ pro­
posed changes to their methods of election 
where there has been reason to believe 
that the changes were racially inspired. 
For instance, the Justice Department ob­
jected to Bladen County, North Carolina’s 
1987 attempt to change its method of elec­
tion for its board of county commissioners

from at-large elections to three double­
member and one at-large district. Al­
though the Justice Department found that 
the change would not have a retrogressive 
effect, it nonetheless denied preclearance 
to the change based on its inability to 
conclude “that the proposed election sys­
tem is free from discriminatory purpose.” 
Id. at 1761. According to the Justice De­
partment, the evidence presented by the 
county demonstrated that “the responsible 
public officials [had] desired to adopt a 
plan which would maintain white political 
control to the maximum extent possible 
and thereby minimize the opportunity for 
effective political participation by black cit­
izens.” Id. at 1762. Indeed, the Justice 
Department explained, “it appeal's that the 
board undertook extraordinaiy measures 
to adopt an election plan which minimizes 
minority voting strength.” Id. A similar 
intent-based objection was interposed in 
response to Wilson County, North Car­
olina’s 1986 change to its system for elect­
ing county commissioners, in light of the 
Justice Department’s determination that 
the county’s method of election had been 
purposefully “designed and intended to 
limit the number of commissioners black 
voters would be able to elect.” Id. at 1731.

The legislative record also contains ex­
amples of objection letters issued in re­
sponse to jurisdictions’ proposed annex­
ations, in which the Justice Department 
has denied preclearance based on its ina­
bility to conclude that the annexation was 
free from disenminatory animus. In 
1990, for example, the Justice Department 
objected to the decision by Monroe, Loui­
siana, to annex certain wards for the 
Monroe City Court, explaining that the 
annexations would have reduced the black 
percentage of the City Court’s jurisdiction 
from 48.4% to 39.2%. 1 History, Scope, & 
Purpose 927 (Schlozman Appendix). The 
Justice Department also expressed con­
cern regarding the timing of the annex-



476 811 FEDERAL SUPPLEMENT, 2d SERIES

ationa, noting that one of the annexed 
wards “had been eligible to be added to 
the City Court jurisdiction since at least 
1970,” but that there had been “little or 
no interest in implementing this change 
until immediately prior to the 1984 City 
Court primaiy election, which we under­
stand was marked by the presence of the 
first black candidate for the City Court.” 
See 1 History, Scope, & Purpose 927-28 
(Schlozman Appendix); see also H.R.Rep. 
No. 109—178, at 23. Similarly, the Justice 
Department in 1997 objected to the an­
nexations proposed by the city of Web­
ster, Texas, where “the city’s annexation 
choices appealed] to have been tainted, if 
only in part, by an invidious racial pur­
pose.” 2 History, Scope, & Purpose 2492 
(Schlozman Appendix).

Given these and the many other intent- 
based objections in the 15,000-page legis­
lative record, the House Committee on the 
Judiciary had good reason to conclude in 
2006 that Section 5 was still fulfilling its 
intended function of preventing covered 
jurisdictions from implementing voting 
changes “intentionally developed to keep 
minority voters and candidates from suc­
ceeding in the political process.” 
H.R.Rep. No. 109-478, at 36.

4. More Information Requests
In reauthorizing Section 5 in 2006, Con­

gress did not rely only on objection letters 
to evaluate the continued existence of vot­
ing discrimination by covered jurisdictions; 
it relied as well on so-called “more infor­
mation requests” (“MIRs”) by the Attor­
ney General. See H.R.Rep. No. 109-478, 
at 40; 2006 Amendments § 2(b)(4)(A), 120 
Stat. at 577. An MIR is a formal letter 
issued in response to a preclearance sub­
mission when the submission contains in­
sufficient information for the Attorney 
General to determine whether the pro­
posed voting change violates Section 5. See 
H.R.Rep. No. 109-478, at 40. When a 
covered jurisdiction receives an MIR, it

can either (1) supply the requested infor­
mation; (2) withdraw the proposed voting 
change; (3) submit a new proposed change 
that supersedes the prior change; or (4) 
choose not to respond. Id.; see also 2 
Voting Rights Act: Evidence of Continued 
Need, Hearing Before the Subcomm. on 
the Constitution of the H. Comm, on the 
Judiciary, 109th Cong. 2545 (Mar. 8, 2006) 
(hereinafter, “2 Evidence of Continued 
Need ”) (Luis Ricardo Fraga & Maria Liz- 
et Ocampo, The Deterrent Effect of Sect ion 
5 of the Voting Rights Act: The Role of 
More Information Requests ) (hereinafter, 
“Fraga & Ocampo Study”). In its 2006 
examination of MIRs, the House Commit­
tee on the Judiciai-y found that “[t]he ac­
tions taken by a jurisdiction [in response 
to an MIR] are often illustrative of a juris­
diction’s motives.” H.R.Rep. No. 109-478, 
at 40. In particular, a covered jurisdic­
tion’s decision to withdraw its proposed 
change, submit a superseding change, or 
not respond to an MIR frequently consti­
tutes a “tacit admission” that its originally- 
proposed change was, in fact, discriminato­
ry. See 1 Evidence of Continued Need 178 
(Nat’l Comin’n Report).

It is significant, then, that between 
1982 and 2003, at least 205 proposed vot­
ing changes were withdrawn by covered 
jurisdictions after receipt of an MIR. Id.; 
see also H.R.Rep. No. 109-478, at 41. 
According to one study in the legislative 
record, MIRs resulted in a total of 855 
withdrawals, superseding changes, and 
“no responses” by covered jurisdictions 
from 1990 through 2005. See 2 Evidence 
of Continued Need 2553 (Fraga & Ocam­
po Study). To be sure, not all of these 
withdrawals, superseding changes, or “no 
responses” represent concessions on the 
part of the covered jurisdiction that its 
initially-proposed voting change had an 
impermissible discriminatory purpose or 
effect. It is plausible that covered juris­
dictions choose to withdraw their pro­



477SHELBY COUNTY, ALA. v. HOLDER
C ite  a s  81 I F .S u p p .2 d  424 (D .D .C. 2011)

posed electoral changes or not respond to 
MIRs for other reasons—for example, be­
cause “responding is more costly than not 
implementing the change.” See, e.g., Con­
tinuing Need 113 (Pildes Responses). 
But Shelby County is wrong to character­
ize voluntary withdrawals or “no respons­
es” to MIRs as showing only that “bu­
reaucratic hurdles to preclearance erected 
by DOJ have deterred covered jurisdic­
tions from making nondiscriminatory vot­
ing changes.” See Pl.’s Mot. at 4(i. Al­
though it is unlikely that all withdrawals, 
superseding changes, and “no responses” 
represent successfully-thwarted attempts 
by covered jurisdictions to implement pur­
posefully discriminatory voting changes, 
Congress found that, together “[t]he in­
creased number of objections, revised 
submissions, and withdrawals over the 
last 25 years are strong indices of contin­
ued efforts to discriminate.” H.R.Rep. 
No. 109^478, at 36; see also Continuing 
Need 112-13 (Pildes Responses) (explain­
ing the need for “more qualitative infor­
mation on the reasons jurisdictions re­
spond as they do [to MIRs] to know what 
percentage of these responses in fact do 
signal changes that would have violated 
the VRA,” but recognizing the likelihood 
that at least “some of these non-responses 
reflect the fact that the jurisdiction’s pro­
posed change would have violated the 
VRA”).

5. Judicial Preclearance Suits 
Even more probative of the continued 

existence of voting discrimination than 
withdrawals or “no responses” to MIRs, 
however, are the lawsuits in which a three- 
judge court has denied preclearance to a 
covered jurisdiction’s proposed voting 
change. As previously explained, a cov­
ered jurisdiction may seek a declaratoiy 
judgment from a three-judge panel of this 
Court that its proposed voting change has 
neither a discriminatory purpose nor effect 
instead of submitting its change to the 
Attorney General for preclearance. See,

e.g., Nw. Austin II, 129 S.Ct. at 2509; 42 
U.S.C. § 1973c. Although most jurisdic­
tions choose the latter route, some have 
filed declaratory judgment actions seeking 
approval of their proposed voting changes 
since the passage of the Voting Rights Act 
in 1965. See Nw. Austin I, 573 F.Supp.2d 
at 255. Forty-two of these declaratory 
judgment actions have been unsuccessful— 
meaning that the three-judge court either 
denied preclearance to the proposed 
change, the jurisdiction withdrew the 
change, the case was dismissed, or a con­
sent decree that cured the problem was 
reached. See 1 Evidence of Continued 
Need 177, 235 (Nat’l Comm’n Report). Of 
these 42 unsuccessful declaratory judg­
ment actions, 25 occurred after 1982. Id. 
at 178, 270.

Most importantly, as the three-judge 
court in Nw. Austin I pointed out, “the 
legislative record contains several exam­
ples of judicial decisions denying preclear­
ance that reveal evidence of intentional 
discrimination.” 573 F.Supp.2d at 255. In 
one particularly egregious example, which 
occurred shortly before the 1982 reauthori­
zation of Section 5, a three-judge panel of 
this Court denied preclearance to Geor­
gia’s proposed 1981 congressional redis­
tricting plan based on its finding that the 
plan had a discriminatory purpose under 
Section 5. See 1 Evidence of Continued 
Need 503-508 (ACLU Report); Busbee, 
549 F.Supp. at 517. Georgia began its 
congressional redistricting process after 
the 1980 census showed that the state’s ten 
existing districts—all of which were major­
ity-white with the exception of the Fifth 
District—had become severely malappor- 
tioned. Under the leadership of Joe Mack 
Wilson, Chair of the state’s House Reap­
portionment Committee, Georgia created a 
redistricting plan that maintained its nine 
majority-white districts, and split the 
large, contiguous black population of the 
Atlanta metropolitan area between the



478 811 FEDERAL SUPPLEMENT, 2d SERIES

Fourth and Fifth Districts, thereby ensur­
ing that blacks would still comprise a ma­
jority of the Fifth District, but would only 
constitute 46% of the registered voters 
there.- See Busbee, 549 F.Supp. at 498-99. 
Because Georgia’s plan increased the per­
centage of blacks in the Fifth District, 
however, it was not retrogressive, and 
therefore “technically .. . [did] not have a 
discriminatoiy effect, as that term has 
been construed under the Voting Rights 
Act.” Id. at 516-17.

The three-judge court nonetheless de­
nied preclearance to the plan based on its 
conclusion that the plan had been “the 
product of puiposeful racial discrimina­
tion.” See id. at 517-18. In reaching this 
detei-mination, the court made an express 
finding that “Representative Joe Mack 
Wilson is a racist.” Id. at 500. The court 
cited Wilson’s now-infamous statement 
that he did not want to draw “nigger dis­
tricts,” id. at 501, as well as testimony 
from other Georgia legislators, who con­
ceded that they, too, had intentionally 
sought to “keep the Fifth District ‘as white 
as possible . . .  but just within the limits 
. . .  to satisfy the Voting Rights A c t.. . . ’” 
Id. (internal citation omitted). As one 
state legislator explained, “ ‘the motivation 
of the House leadership’ in creating the 
Fifth District . . was to ‘increase [the 
percentage of the black population] just 
enough to say they had increased it [and] 
so that it would look like they had in­
creased it, but they knew they had not 
increased it enough to elect a black.’ ” Id. 
(internal citation omitted). Another state 
senator admitted that he had felt obliged 
to vote for the plan because he “ ‘[didn’t] 
want to have to go home and explain why I 

. . was the leader in getting a black elect­
ed to I,he United States Congress.’ ” Id. 
at 514 (internal citation omitted). These 
“[o]vert racial statements,” together with 
Georgia’s history of racial discrimination in 
voting, and the absence of any legitimate 
non-racial reasons for the redistricting

plan, convinced the three-judge court that 
the plan had been enacted with a discrimi­
natoiy purpose, and hence had “ ‘no legiti­
macy at all under our Constitution or un­
der (Section 5).’ ” Id. at 517 (alteration in 
original) (quoting City of Richmond v. 
United States, 422 U.S. 358, 378-79, 95 
S.Ct. 2296, 45 L.Ed.2d 245 (1975)).

In another, more recent declaratory 
judgment action, the Louisiana House of 
Representatives sought preclearance for 
its 2001 statewide redistricting plan, which 
eliminated a majority-black district in Or­
leans Parish, and failed to create a compa­
rable district anywhere else in the state. 
See Def.’s' Mot. at 37; Nw. Austin I, 573 
F.Supp.2d at 256; Continuing Need 28 
(An-ington Responses); Introduction to 
Expiring Provisions 152 (Shaw Respons­
es); Reauthorization of the Act’s Tempo­
rary Provisions: Policy Perspectives and 
Views from  the Field, Hearing Before the 
Subcomm. on the Constitution, Civil 
Rights and Property Rights of the S. 
Comm, on the Judiciary, 109th Cong. 42- 
44 (June 21, 2006) (hereinafter, “Policy 
Perspectives ”) (responses of Debo Adeg- 
bile to questions submitted by Senators 
Kennedy, Leahy, Cornyn, and Coburn) 
(hereinafter, “Adegbile Responses”). In 
the course of defending their plan, Louisi­
ana officials admitted that they had inten­
tionally “ ‘obliterated’ ” the majority-black 
district in order to achieve what they 
characterized as “proportional” represen­
tation for white voters in Orleans Parish. 
See Def.’s Br. in Supp. of Mot. for Summ. 
J., La. House of Reps. v. Ashcroft, Civ. A. 
No. 02-62 (D.D.C. Jan. 17, 2003); see also 
Policy Perspectives 43 (Adegbile Respons­
es). But in selectively applying the theo- 
iy of “proportional representation” to ad­
vantage only white voters in a particular 
area of the state, Louisiana officials ig­
nored the fact that it was the black popu­
lation in Orleans Parish, not the white 
population, that had increased during the



SHELBY COUNTY, ALA. v. HOLDER
C ite as  81 1 F .S u p p .2 d  424 (D.I).C . 2011)

479

preceding decade. See Continuing Need 
28 (Arlington Responses). Moreover, the 
state made no attempt to remedy blacks’ 
statewide under-representation in propor­
tion to their percentage of the population, 
despite its avowed desire to achieve pro­
portional representation for white voters 
in a particular area of the state. See 
Def.’s Br. in Supp. of Mot. for Surmn. J., 
La. House o f Reps. v. Ashcroft, Civ. A. 
No. 02-62 (D.D.C. Jan. 17, 2003); Policy 
Perspectives 43 (Adegbile Responses); 
Nw. Austin I, 573 F.Supp.2d at 256. Al­
though the suit ultimately settled on the 
eve of trial when Louisiana agreed to re­
store the majority-black district, it none­
theless constitutes a recent example of a 
covered jurisdiction’s thwarted attempt to 
enact a voting change with the express 
purpose of diminishing black electoral op­
portunity. See Policy Perspectives 43 
(Adegbile Responses); Introduction to 
Expiring Provisions 152 (Shaw Respons­
es). The case also illustrates the need to 
look beyond preclearance-related data in 
assessing the continued prevalence of in­
tentional voting discrimination by covered 
jurisdictions, as the suit’s eventual resolu­
tion through a settlement agreement 
means that “there is no firm objection 
statistic or declaratory judgment ruling 
that resulted from the litigation.” Intro­
duction to Expiring Provisions 152 (Shaw 
Responses).

6. Section 5 Enforcement Suits 
Yet another type of evidence that Con­

gress relied on as illustrative of the contin­
ued existence of voting discrimination by 
covered jurisdictions was section 5 enforce­
ment actions undertaken by the Justice 
Department in covered jurisdictions since 
1982. See 2006 Amendments § 2(b)(4)(A), 
120 Stat. at 577. The Voting Rights Act 
authorizes the Justice Department—as 
well as private citizens—to bring suit un­
do- Section 5 to compel a covered jurisdic­
tion to submit its proposed voting change 
for preclearance. See Nw. Austin I, 573

F.Supp.2d at 256. Since 1982, there have 
been at least 105 successful Section 5 en­
forcement actions in which a covered juris­
diction has either been ordered to submit 
its proposed voting change for preclear­
ance, or has voluntarily agreed to do so 
after a Section 5 enforcement suit was 
filed. See 1 Evidence of Continued Need 
186 (Nat’l Comm’n Report). Based on its 
review of these cases, the House Commit­
tee on the Judiciary found that the failure 
by covered jurisdictions to submit voting 
changes for preclearance under Section 5 
often reflects more than a mere oversight. 
“[CJovered jurisdictions continue to resist 
submitting voting changes for preclear­
ance,” the Committee noted in its 2006 
report, explaining that “many defiant cov­
ered jurisdictions and State and local offi­
cials continue to enact and enforce changes 
without the Federal Government’s knowl­
edge.” See H.R.Rep. No. 109^178, at 41.

Historically, the most “defiant” of all the 
covered jurisdictions has been South Da­
kota, where former South Dakota Attorney 
General William Janklow notoriously de­
scribed the preclearance requirement as “a 
facial absurdity” and advised against com­
pliance, remarking, “I see no need to pro­
ceed with undue speed to subject our State 
laws to a ‘one-man’ veto by the United 
States Attorney General.” Id. at 42. In 
accordance with Janklow’s advice, South 
Dakota sought preclearance for less than 
five of the more than 600 voting changes 
that it enacted between 1976 and 2002. 
Id. Many of these voting changes “nega­
tively impacted” the state’s Native Ameri­
can population, some of whom eventually 
filed an enforcement action to compel the 
state to submit its voting changes for pre­
clearance. Id. The suit resulted in a con­
sent decree, under which South Dakota 
finally agreed to fulfill its obligations un­
der Section 5. Id.



480 811 FEDERAL SUPPLEMENT, 2d SERIES

The legislative record contains many ex­
amples of Section 5 enforcement suits initi­
ated in response to covered jurisdictions’ 
implementation of voting changes without 
preclearance, including several examples 
of suits in which the unprecleared voting 
changes appeared to have been motivated 
by discriminatoiy animus. For instance, a 
Section 5 enforcement action was filed in 
response to Prairie View, Texas’s attempt 
to reduce the availability of early voting 
during its racially-charged 2004 elections 
in Waller County. After two black stu­
dents from historically black Prairie View 
A & M University announced their intent 
to run for local office (one for the Waller 
County Commissioners’ Court, the coun­
ty’s governing body), the white district 
attorney threatened to prosecute all Prai­
rie View A & M students who voted in the 
elections, claiming that the students wrere 
not legal residents of the county. See 1 
Evidence of Continued Need 185 (Nat’l 
Comm’n Report); id. at 300 (Highlights of 
Hearings of the Nat’l Comm’n on the Vot­
ing Rights Act) (hereinafter, “Nat’l 
Comm’n Hearing Highlights”). Shortly 
thereafter, the county sought to reduce the 
availability of early voting at the polling 
places that were located closest to the 
Prairie View A & M campus. This reduc­
tion in early voting opportunities would 
have made it much more difficult for stu­
dents to vote in the election’s primary, 
because it was scheduled to take place 
during the university’s spring break, and 
students therefore had to vote in advance 
if they planned to be out of town during 
their vacation. 1 Evidence of Continued. 
Need 186 (Nat’l Comm’n Report). The 
university chapter of the NAACP filed suit 
under Section 5, seeking to enjoin Waller 
County from making this change to its 
voting practices without first receiving 
preclearance, u'hich prompted the county 
to agree to restore the early voting oppor­
tunities that had previously been in place. 
Id. As a result, five times as many Prairie

View A & M students were able to vote in 
the primai-y, in which the African-Ameri­
can student seeking election to the County 
Commissioners’ Court won a narrow victo- 
iy. Id.

Another Section 5 enforcement suit was 
brought in 1995 when Mississippi sought to 
revive its dual voter registration system, 
which had originally been enacted “as part 
of the ‘Mississippi Plan’ to deny blacks the 
right to vote following the Constitutional 
Convention of 1890.” Operation Push v. 
Attain, 674 F.Supp. 1245, 1251 (N.D.Miss. 
1987), affd sub nom., Operation Push v. 
Mabus, 932 F.2d 400 (5th Cir.1991); see 
also S.Rep. No. 109-295, at 223; 1 Evi­
dence of Continued Need 176 (Nat’l 
Comm’n Report); H.R.Rep. No. 109-478, 
at 39. In 1987, a federal district court 
invalidated a revised version of Mississip­
pi’s dual registration system that the state 
had adopted in 1984, based on evidence 
that the revised system, like the original 
one, “resulted] in a denial or abridgment 
of the right of black citizens in Mississippi 
to vote and participate in the electoral 
process.” Operation Push, 674 F.Supp. at 
1253. Nevertheless, Mississippi proceeded 
to implement yet another dual registration 
system in 1995, purportedly in an attempt 
to comply with the requirements of the 
National Voter Registration Act (“NVRA”) 
of 1993. See H.R.Rep. No. 109-478, at 39. 
State officials “refused to submit the 
change for preclearance” despite the fact 
that Mississippi’s “maintenance of two reg­
istration systems had previously been 
struck down as discriminatory.” Id.

Private plaintiffs responded with a Sec­
tion 5 enforcement action, as did the Unit­
ed States, and the two cases were consoli­
dated before a three-judge court. See 
Young v. Fordice, 520 U.S. 273, 280, 117 
S.Ct. 1228, 137 L.Ed.2d 448 (1997). The 
case eventually reached the Supreme 
Court, which unanimously held that Mis­



SHELBY COUNTY, ALA. v. HOLDER
C ite  as  811 F .S u p p .2 d  424 (D .D .C. 2011)

481

sissippi was required to submit its dual 
registration system for preclearance. Id. 
at 291, 117 S.Ct. 1228. Once compelled to 
seek preclearance, Mississippi received an 
objection, based on the Attorney General’s 
inability to find that “the State’s submitted 
NVRA procedures are not tainted by im­
proper racial considerations.” Preclear­
ance Standards 83 (appendix to statement 
of Brenda Wright). As the Attorney Gen­
eral explained, the state’s decision “to im­
plement the requirements of the NVRA in 
a manner that would cause the State to 
revert to a form of dual registration” was 
“particularly noteworthy,” given that “it 
occurred only a few years after a federal 
court had found that a similar requirement 
had led to pronounced discriminatory ef­
fects on black voters.” Id.

Of course, the reasons behind a failure 
to seek preclearance under Section 5 are 
not always easy to discern. And there is 
no data in the legislative record revealing 
the percentage of successful Section 5 en­
forcement actions that have ultimately re­
sulted in a denial of preclearance on the 
basis of discriminatoiy intent. But as 
demonstrated by Mississippi’s 1995 at­
tempt to revive its dual registration sys­
tem, at least some of the 105 successful 
Section 5 enforcement suits since 1982 
have been initiated in response to covered 
jurisdictions’ voting changes that were 
subsequently found to be purposefully dis­
criminatory.

7. Section 2 Litigation
Section 2 of the Voting Rights Act pro­

hibits the imposition of any voting practice 
or procedure “in a manner which results in 
a denial or abridgement of the right of any 
citizen of the United States Lo vote on 
account of race or color.” 42 U.S.C. 
§ 1973. Although a violation of Section 2 
does not require a showing of unconstitu­
tional discriminatoiy intent, “Section 2 
cases have documented evidence that re­
veals a wide range of unconstitutional con­

duct by state and local officials.” See Im ­
pact and Effectiveness 971 (Katz Study). 
Based on its review of several studies of 
Section 2 cases in the legislative record, 
the Senate Judiciaiy Committee identified 
six reported Section 2 cases that resulted 
in either a judicial decision or a consent 
decree reflecting that a covered jurisdic­
tion had unconstitutionally discriminated 
against minority voters. See S.Rep. No. 
109-295, at 13, 65. A study conducted by 
Professor Ellen Katz and the Voting 
Rights Initiative of the University of Mich­
igan Law School identified an additional 
eight published Section 2 cases since 1982 
in which a court determined that a covered 
jurisdiction had engaged in intentional dis­
crimination against minority voters. See 
Impact and Effectiveness 986-91 (Katz 
Study); see also Nw. Austin I. 573 
F.Supp.2d at 258. Hence, as the three- 
judge court in Nw. Austin 1 explained, 
Congress “knew of a combined total of 
fourteen judicial findings of intentionally 
discriminatoiy or unconstitutional state ac­
tion” by covered jurisdictions since 1982 
when it chose to reauthorize Section 5 in 
2006. 573 F.Supp.2d at 258.

The Nw. Austin I court recognized that 
14 “is not a great number of cases,” espe­
cially when compared to the 421 intent- 
based objection letters lodged by the At­
torney General during this time-frame. 
See id. But the court offered two explana­
tions for the “relative scarcity” of judicial 
findings of intentionally discriminatory or 
unconstitutional conduct by covered juris­
dictions. First, given Section 5’s effective­
ness in deterring covered jurisdictions 
from enacting discriminatoiy voting 
changes in the first place, it is understand­
able that there would not be many Section 
2 cases challenging such practices. In oth­
er words, because most intentionally dis­
criminatoiy voting practices are blocked 
by Section 5 prior to their implementation, 
they are unlikely to be the subject of a



482 811 FEDERAL SUPPLEMENT, 2d SERIES

subsequent Section 2 challenge. See id. 
(citing Introduction to Expiring Provi­
sions (Shaw Responses 100)); see also 
Continuing Need 143 n. 18 (Earls Re­
sponses). Second, both the Senate Judi­
ciary Committee and Professor Katz’s 
study examined only reported Section 2 
cases. Yet as Professor Katz acknowl­
edged, “[tjhese lawsuits, of course, repre­
sent only a portion of the Section 2 claims 
filed or decided since 1982,” given the high 
number of Section 2 cases that settle or 
are resolved without a published opinion. 
See Impact and Effectiveness 974 (Katz 
Study); see also Continuing Need 143 
(Earls Responses). Indeed, according to 
one witness who testified before the Sen­
ate Judiciary Committee, there have been 
66 reported cases of Section 2 violations 
since 1982 in the nine states that are “sub­
stantially covered” by Section 5, but there 
have been 587 unreported cases document­
ing such violations—i.e., more than eight 
times as many unrcported cases than re­
ported cases revealing Section 2 violations 
by covered jurisdictions. See Continuing 
Need 143 (Earls Responses). It is to be 
expected, then, that an analysis of inten­
tional or unconstitutional discrimination 
based solely on reported Section 2 cases 
would “seriously understate! 1 the find­
ings.” Id.

Finally, it is significant to recall that 
courts will avoid deciding constitutional 
questions if a case can be resolved on 
narrower, statutory grounds. See, eg., 
Nw. Austin II, 129 S.Ct. at 2508. Courts 
therefore tend to refrain from finding that 
a jurisdiction engaged in unconstitutional 
voting discrimination if there is another 
basis upon which to invalidate the jurisdic­
tion’s challenged voting practice—e.g., if 
the voting practice is found to violate the 
Section 2 “results” test. See Continuing 
Need 143^14, 144 n. 19 (Earls Responses); 
see also Escambia Cnty. v. McMillan, 466 
U.S. 48, 51, 104 S.Ct. 1577, 80 L.Ed.2d 36 
(1984) (declining to decide whether evi­

dence of discriminatoiy intent was ade­
quate to support finding that at-large sys­
tem of elections violated the Foui-teenth 
Amendment, given the lower court’s con­
clusion that the system also violated Sec­
tion 2); White v. Alabama, 74 F.3d 1058, 
1071 n. 42 (11th Cir.1996) (explaining that 
“[b]ecause we dispose of the district 
court’s judgment on the ground that it 
violates the Voting Rights Act, we need 
not, and indeed, should not, discuss wheth­
er the judgment violates the Equal Protec­
tion Clause”); United States v. Charleston 
Cnty., 316 F.Supp.2d 268, 306-07 (D.S.C. 
2003), affd, 365 F.3d 341 (4th Cir.2004) 
(acknowledging that “the General Assem­
bly’s adoption of the at-large system raises 
suspicions,” but refusing to “disparage” 
those who enacted the system by finding a 
constitutional violation absent more “com­
pelling evidence” of discriminatoiy intent, 
and instead, enjoining the at-large system 
as a violation of Section 2). As Professor 
Pamela Karlan explained during her 2006 
testimony before the Senate Judiciaiy 
Committee, “when courts decide cases on 
[Section 2] effects test reasons, they don’t 
reach the question whether there is also a 
discriminatoiy purpose. But let me tell 
you from my own experience that if we 
had to show discriminatoiy purpose in lots 
of these cases, we could do it.” Continu­
ing Need 6 (statement of Pamela S. Kar­
lan). As a result, many instances of un­
constitutional voting discrimination likely 
escape formal judicial condemnation.

Still, there have been at least 14 report­
ed Section 2 cases involving judicial find­
ings of intentional or unconstitutional vot­
ing discrimination by covered jurisdictions 
since 1982. See Nw. Austin I, 573 
F.Supp.2d at 258. Because the three- 
judge court in Nw. Austin I described 
most of these Section 2 decisions in great 
detail, see 573 F.Supp.2d at 259-62, this 
Court will not endeavor to repeat the facts 
of all those cases here. But since Section



SHELBY COUNTY, ALA. v. HOLDER
C ite as 81 I F .S u p p .2 d  424 (D .I).C . 2011)

483

2 cases do offer very “powerful evidence of 
continuing intentional discrimination,” id. 
at 259, a few such cases warrant mention, 
one of which was not addressed by Nw. 
Austin I.

In 2003, a federal district coui't assess­
ing a Section 2 challenge to Charleston 
County, South Carolina’s at-large method 
of elections for its County Council declined 
to find that the system had been adopted 
with an unconstitutional discriminatory 
purpose, but nonetheless enjoined the sys­
tem as a violation of Section 2. See 
Charleston Cnty., 316 F.Supp.2d at 306. 
In so doing, the court noted that county 
officials had engaged in many other forms 
of purposeful voting discrimination in re­
cent years. See id, at 290 n. 23; see also 
Impact and Effectiveness 987-88 (Katz 
Study). The court described the persis­
tent problem of white poll officials “intimi­
dating and harassing” black voters in need 
of assistance at the polls, and quoted one 
member of the Charleston County Election 
Commission, who said that she had “re­
ceived complaints from African-American 
voters concerning rude or inappropriate 
behavior by white poll officials in every 
election between 1992 and 2002.” See id. 
at 287 n. 23. At one point, the official 
harassment of elderly black voters at the 
polls became so egregious that it “prompt­
ed a Charleston County Circuit Court to 
issue a restraining order against the Elec­
tion Commission requiring its agents to 
cease interfering with the voting process.” 
Id. at 288 n. 23.

The court in Charleston Cnty. also noted 
two “recent episodes” of racial discrimina­
tion in voting that it found particularly 
troubling. In the first, which occurred in 
1991, the Charleston County Council de­
cided to “reduce[ ] the salary for the 
Charleston County Probate Judge .. . fol­
lowing the election of the first and only 
African-American person elected to that 
position.” Id. at 289 n. 23. That same

judge had been forced to sue to have his 
election upheld by the South Carolina Su­
preme Court, and even after the court 
affirmed the validity of the election, the 
judge had to seek Justice Department in­
tervention in order to be sworn into office. 
Id. at 289-90 n. 23. The second episode 
occurred after the 2000 Charleston County 
School Board elections, in which African- 
Americans won a majority of the seats on 
the board for the first time in the county’s 
history. The county immediately respond­
ed by sponsoring “several pieces of legisla­
tion to alter- the method of election for the 
school board.” Id. at 290 n. 23. None of 
the five African-American members of the 
board were consulted regarding their 
views on the change to the board’s method 
of election, id., and every African-Amer i­
can member of the legislative delegation 
voted against the proposed change, S.Rep. 
No. 109-295, at 309. It later became ap­
parent that the change would have the 
effect of making the school board’s method 
of election “an exact replica of the old 
County Council structure” that the court 
in Charleston Cnty. had struck down as a 
violation of Section 2. See Continuing 
Need 27-28 (Arrington Responses); see 
also S.Rep. No. 109-295, at 309. This 
method of election was subsequently de­
nied preelearance by the Attorney Gener­
al. Continuing Need 28 (Arrington Re­
sponses).

In a Section 2 case not discussed by the 
three-judge court in Nw. Austin I, Native 
American residents of South Dakota chal­
lenged the state’s 2001 legislative redis­
tricting plan as diluting Native American 
voting strength in violation of Section 2. 
See Bone Shirt v. Hazeltine, 336
F.Supp.2d 976 (D.S.D.2004); see also' Im ­
pact and Effectiveness 988-89 (Katz 
Study). In assessing the plaintiffs’ Section 
2 challenge, the court described several 
recent instances of intentional state-spon­
sored voting discrimination against Native



484 811 FEDERAL SUPPLEMENT, 2d SERIES

Americans in South Dakota. See Bone 
Shirt, 336 F.Supp.2d at 1023-26. For ex­
ample, in 2002 the state passed a law 
requiring photo identification as a prereq­
uisite to voting. When concerns were 
raised about the effect of the law on the 
state’s Native American population, one 
state legislator responded: “I’m not sure 
we want that sort of person in the polling 
place.” Id. at 1026 (internal quotation 
marks and citation omitted). Another leg­
islator conceded that the measure had 
been passed as a means of “retaliating” 
against the recent rise in registration 
among Native American voters, after the 
Native American vote had proven particu­
larly significant in a close senate race. Id. 
The court also described a 2003 challenge 
to a redistricting plan by Buffalo County, 
South Dakota, which had “confined virtual­
ly all of the county’s Indian population to a 
single district containing approximately 
1600 people.” Id. at 1024. When mem­
bers of the Crow Creek Sioux Tribe 
brought suit, alleging that the plan had 
been “drawn and maintained for a discrim­
inatory purpose,” the parties reached a 
settlement agreement, “with the county 
admitting that the plan was discriminato­
r y ” Id- The court in Bone Shirt went on 
to list many other reports of intentional 
voting discrimination against Native Amer­
icans in South Dakota, including cases in 
which local poll officials “refused to regis­
ter Indians,” or “refused to provide them 
with enough voter registration cards to 
conduct a voter registration drive.” Id.

The legislative record describes several 
other Section 2 cases since 1982 that con­
tain judicial findings of purposeful voting 
discrimination by covered jurisdictions. 
See Impact and Effectiveness 975-76, 987- 
94 (Katz Study). Two such cases from 
Shelby County’s home state of Alabama 
warrant specific mention. Following the 
Dillard litigation, see supra pp. 442-43, in 
which Alabama residents challenged the 
at-large electoral systems used by many

cities, counties, and school boards through­
out the state (including in Shelby County), 
the town of North Johns admitted that its 
at-large system for electing commissioners 
violated Section 2 and entered into a con­
sent decree, under which it agreed to im­
plement a new electoral system with five 
single-member districts. See Dillard v. 
Town of North Johns, 717 F.Supp. 1471, 
1473 (M.D.Ala.1989). When two African- 
American candidates for office sought “to 
take advantage of the new court-ordered 
single-member districting plan,” id. at 
1476, the mayor refused to provide them 
with the necessaiy financial disclosure 
forms that he had provided to all of the 
other candidates, and that all candidates 
were required to complete in order to run 
for office under state law. Id. at 1474-76; 
Impact and Effectiveness 990 (Katz 
Study). The two African-American candi­
dates nonetheless remained on the ballot 
without completing the forms, and pro­
ceeded to win their respective elections, 
whereupon the mayor refused to swear 
them into office. North Johns, 717 
F.Supp. at 1475. The candidates then 
filed suit under Section 2, alleging pur­
poseful discrimination and seeking a court 
order certifying them as duly-elected 
members of the town council. Id. at 1476. 
Granting this request, the federal district 
court found “that North Johns, through its 
mayor, intentionally discriminated against 
[the candidates] because of their race.” 
Id. The court explained that the election of 
the two candidates would have resulted in 
a majority-black town council, and that the 
mayor had “acted as he did in order to 
prevent this result, or at least not to aid in 
achieving it.” Id. The court was “con­
vinced that, but for [the candidates’] race, 
[the mayor] would have acted toward them 
as he acted toward other candidates; he 
would have provided to them, in a timely 
manner, the [necessaiy] information and 
forms." Id.



SHELBY COUNTY, ALA. v. HOLDER
C ite  as 811 F .S u p p .2 d  424 (D.D.C. 2011)

485

Similarly, a federal district court in Har­
ris v. Siegelman, 695 F.Supp. 517 
(M.D.Ala.1988), found that intentional dis­
crimination persisted in Alabama as late as 
the 1980s. In assessing a Section 2 class 
action filed by black residents of the state, 
who alleged that the manner in which poll 
officials had been appointed violated Sec­
tion 2, the court described how Alabama’s 
“history of racial inhumanity continues into 
today.” 695 F.Supp. at 525. Specifically, 
the court found that “white poll officials 
continue to harass and intimidate black 
voters,” and it went on to cite “numerous 
instances” in which “white poll officials 
refused to help illiterate black voters or 
refused to allow them to vote, where they 
refused to allow black voters to cast chal­
lenged ballots, and where they were sim­
ply rude and even intimidating toward 
black voters.” Id. Although acknowl­
edging that these occurrences are “much 
less frequent today than in the past,” the 
court found that “their impact is still dra­
matic and widespread in the black commu­
nity in light of this state’s not-so-distant 
histoiy of open and violent, discrimination.” 
Id.

8. Dispatch of Federal Observers 
Additional evidence of intentional state- 

sponsored discrimination against minority 
voters is revealed by the continued dis­
patch of federal observers to covered juris­
dictions. Under Section 8, the Attorney 
General may send federal observers to

13. Under the original version of the Act. fed­
eral observers could only be sent to monitor  
elections in jurisdictions for which “ federal 
exam iners"  had been appointed. See 1965 
Act § 8. Federal examiners “ in the early davs 
of the Act were empowered to help register 
minori ty voters," 1 Evidence o f  Continued  
Need 179, and could be dispatched ei ther  to
jurisdictions that were covered by Section 
4(b), or  to non-covered jurisdictions that were 
subject to coverage by federal court order,  see 
1965 Act §§ 3(a), 6. When Congress reau th o r ­
ized the Act's tem porary  provisions in 2006, it 
repealed the sections of the Act per taining to

monitor any state or local elections when 
“necessary to enforce the guarantees of 
the 14th or 15th amendment.” 1:1 See 42 
U.S.C. § 1973f(a)(2). Between 1982 and 
2006, 300 to 600 federal obseivers were 
assigned annually to observe elections in 
covered jurisdictions. See H.R.Rep. No. 
109-478, at 44; S.Rep. No. 109-295, at 96. 
Five of the six states originally covered by 
Section 5—Louisiana, Georgia, Alabama, 
South Carolina, and Mississippi—account­
ed for 66% of the 622 total federal observ­
er coverages 13 14 during this time-frame, 1 
Evidence of Continued Need 181 (Nat’l 
Comm’n Report), with Mississippi alone 
accounting for 40% of all such coverages, 
H.R.Rep. No. 109^175, at 44. In reauthor­
izing Section 5 in 2006, Congress cited the 
“tens of thousands of Federal obseivers 
that have been dispatched to obseive elec­
tions in covered jurisdictions” during the 
past 25 years as evidence of “the continued 
need for [the] Federal oversight” provided 
by the temporaiy provisions of the Voting 
Rights Act. See 2006 Amendments 
5 2(b)(5), 120 Stat. at 578.

Shelby County attempts to minimize the 
significance of this evidence, however, by 
arguing that the dispatch of federal ob­
seivers “indicates only that it was predict­
ed that there might be conduct with the 
effect of disenfranchising minority citizens, 
which might or might not be purposeful 
discrimination.” Pl.’s Mot. at 35. As a 
technical matter, Shelby County is correct.

federal examiners,  and amended Section 3(a) 
of the Act to authorize the direct  assignment 
of federal observers to non-covered jur isd ic­
tions where  “appropriate  to enforce the vot­
ing guarantees of the fourteenth or  fifteenth 
am endm ent ."  42 U.S.C. § 1973a(a); see also  
H.R.Rep. No. 109-478, at 91.

14. For purposes of this Opinion, each occa­
sion when federal observers are  dispatched to 
a jurisdiction is referred to as one "observer 
coverage," al though several individual ob 
servers may have been present



486 811 FEDERAL SUPPLEMENT, 2d SERIES

But observers are not assigned to a partic­
ular polling location based on sheer specu­
lation; they are only dispatched if “there 
is a reasonable belief that minority citizens 
are at risk of being disenfranchised.” 
H.R.Rcp. No. 109—478, at 44 (emphasis 
added); see also 1 Evidence o f Continued 
Need 180 (Nat’l Comm’n Report) (explain­
ing that “observers are sent because there 
are reasonable grounds in the opinion of 
the Department of Justice to expect dis­
crimination on Election Day”) (emphasis 
added). It may be that some of the 622 
observer coverages since 1982 have ulti­
mately proven unnecessary, but the legis­
lative record reveals many instances of 
intentional voter discrimination at the 
polls, where the presence of federal ob­
servers has been needed to protect access 
to the ballot for racial and language minor­
ities.

Congress heard testimony from Ala­
bama state senator Bobby Singleton as to 
the importance of federal observers in pre­
venting the intimidation of black voters at 
the polls in Alabama. See 1 Evidence of 
Continued Need 182 (Nat’l Comm’n Re­
port). Singleton described one incident in 
1992 in which he was taken to jail after 
attempting to prevent white poll officials 
from “closing the doors on African-Ameri­
can voters . . . whom they did not want to 
come in, [because] [they] . . . would have 
made a difference in the . . .  votes on that 
particular day.” Id. at 298 (Nat’l Comm’n 
Hearing Highlights). Barry Weinberg, 
former Deputy Chief of the Voting Section 
of the Civil Rights Division of the Justice 
Department, similarly described the 
harassment of black voters by white poll 
officials in Alabama, including one instance 
in which a local poll official remarked in 
the presence of a federal observer that 
“niggers don’t have principle enough to 
vote and they shouldn’t be allowed.” See 
Voting Rights Act: Sections 6 and 8— The 
Federal Examiner and Observer Program, 
Hearing Before the Subcomm. on the Con­

stitution of the H. Comm, on the Judicia­
ry, 109th Cong. 30 (Nov. 15, 2005) (pre­
pared statement of Barry H. Weinberg). 
Weinberg also described various forms of 
discrimination faced by language minority 
voters at the polls, who have sometimes 
“been denied the ballot because they iden­
tified their street name according to com­
mon Spanish usage rather than the formal 
English name.” Id. at 34. On other occa­
sions, prospective Hispanic voters have 
been “admonished not to use Spanish when 
talking in the polling places,” or have been 
asked to provide “on-the-spot evidence of 
their citizenship before being given a bal­
lot,” even though such evidence is not re­
quired from Caucasian voters. Id. The 
legislative record describes one such exam­
ple of discrimination against Latinos in 
Ar izona, in which men wear ing “military or 
tool belts” and black T-shirts reading 
“U.S. Constitutional Enforcement” ap­
proached Latinos waiting in line to vote, 
demanding proof of citizenship. See 3 Vot­
ing Rights Act: Evidence o f Continued 
Need, Hearing Before the Subcomm. on 
the Constitution of the H. Comm, on the 
Judiciary, 109th Cong. 3976 (Mar. 8, 2006) 
(hereinafter, “3 Evidence of Continued 
Need”) (Arizona Report for the Nat’l 
Comm’n on the Voting Rights Act).

Congress heard evidence that in 1990, 
on the eve of an election marked by the 
presence of an African-American candi­
date for one of North Carolina’s Senate 
seats, 125,000 African-American voters in 
North Carolina received postcards falsely 
informing them that if they had moved 
within thirty days they could not vote. 
See 2 Evidence of Continued Need 1755 
(appendix to statement of Wade 
Henderson). As recently as 2004, a sheriff 
in Alamance County, North Carolina, 
“took a list of registered voters in his 
county that had Spanish surnames, and 
said publicly that he would send deputies 
to the homes of each of those voters to



SHELBY COUNTY, ALA. v. HOLDER
C ite  as 81 1 F .S upp .2d  424 (D .D .C. 2011)

487

verify that they were citizens.” Continu­
ing Need 18 (testimony of Anita S. Earls). 
That same year, there were reports of 
police being stationed outside polling sites 
in an “overwhelmingly Latino” area of 
Texas—a more subtle, yet “familiar form 
of voter intimidation.” See S.Rep. No. 
109-295, at 344.

The record contains several other exam­
ples of state-sponsored discrimination 
against minority voters in Texas, including 
the 2004 closing of a polling place in a 
prcdominantly-black precinct, despite the 
fact that “voters remained in line” and the 
closing was “contrary to state law.” Id. at 
343. There were additional reports of mi­
nority voters “being turned away from 
their polling locations and asked to return 
at a later time” for no apparent reason. 
Id. And during the Southern Regional 
Hearing of the National Commission of the 
VoLing Rights Act, Professor- Vernon Bur­
ton testified that there had been “various 
kinds of intimidation and misinformation” 
directed at black voters in Texas during 
the 2000 and 2002 elections, as well as 
“late ehange[s] of polling places; dropping 
individuals from poll lists without cause; 
[and] not allowing individuals to file chal­
lenge ballots.” See 1 Evidence of Contin­
ued Need 298 (Nat’l Comm’n Hearing 
Highlights). Professor Burton went on to 
describe a particularly disturbing incident 
in Wharton County, Texas, in which the 
home of a campaign staff treasurer for an 
African-American candidate for sheriff 
was bur ned. Id. As Professor Burton ex­
plained, the incident occurred shortly after 
the treasurer had received “ ‘threatening 
calls saying what would happen to her if 
she did not get [the candidate’s]—and we 
won’t use the N word—sign out of her 
yard.’ ” Id.

9. Racially Polarized Voting 
and Vote Dilution

Congress also relied on evidence of ra­
cially polarized voting in reauthorizing

Section 5 in 2006, noting that the persis­
tence of racially polarized voting “in each 
of the jurisdictions covered by the expiring 
provisions of the Voting Rights Act of 1965 
demonstrates that racial and language mi­
norities remain politically vulnerable, war­
ranting the continued protections of the 
[Act].” See 2006 Amendments § 2(b)(3), 
120 Stat. at 577. Racially polarized voting 
“occurs when voting blocs within the mi­
nority and white communities cast ballots 
along racial lines.” H.R.Rep. No. 109^178, 
at 34. The House Committee on the Judi­
ciary in 2006 found that the continued 
existence of racially polarized voting pre­
sented a “serious concern,” id., for two 
reasons. First, racially polarized voting 
effectively creates an “election ceiling” for 
minority voters, as it renders them “pow­
erless” to elect candidates of their choice 
in non-majority-minority districts. Id. 
Second, “[t]he potential for discrimination 
in environments characterized by racially 
polarized voting is great.” Id. at 35. That 
is because, as the three-judge cour t in Nw. 
Austin I explained, racially polarized vot­
ing is “a necessary precondition for vote 
dilution to occur-,” since it is racially polar­
ized voting that “enables the use of devices 
such as multi-member districts and at- 
large elections that dilute the voting- 
strength of minority communities.” See 
573 F.Supp.2d at 263 (internal quotation 
marks and citations omitted). In other- 
words, where minorities and non-minori­
ties tend to prefer different candidates, the 
ability of minorities to elect their candi­
dates of choice can be intentionally re­
duced through the adoption of a wide vari­
ety of dilutive techniques, including the 
manipulation of district boundaries, the en­
actment of discriminatory annexations, and 
the implementation of majority-vote re­
quirements. See 2 Evidence of Continued 
Need 1721 (appendix to statement of Wade 
Henderson).



488 811 FEDERAL SUPPLEMENT, 2d SERIES

Hence, Congress was concerned by the 
evidence in the legislative record indicat­
ing that “the degree of racially polarized 
voting in the South is increasing, not de­
creasing.” 1 Evidence of Continued Need 
215 (Nat’l Comm’n Report). Congress 
heard testimony that in Shelby County’s 
home state of Alabama, there were 35 
black representatives seiving in the state 
legislature, only one of whom had been 
elected from a majority-white district. See 
Benefits and Costs 97 (Gray Responses). 
Evidence in the congressional record also 
revealed “high degree[s]” of racially polar­
ized voting in South Carolina and Louisi­
ana. See H.R.Rep. No. 109-478, at 35. As 
one expert on voting trends in Louisiana 
testified, “the racial differences in candi­
date preferences are peivasive across of­
fices. It doesn’t matter whether the office 
at issue is state Representative, state Sen­
ator, Governor, Mayor, District Attorney, 
or Public Seivice Commissioner. It could 
be for a position as Recorder of Mortgages 
or Register of Conveyances”; regardless 
of the nature of the elected position, “[r]a- 
cially polarized voting remains pronounced 
and pervasive in Louisiana.” Voting 
Rights Act: The Continuing Need for Sec­
tion 5, Hearing Before the Subcomm. on 
the Constitution of the H Comm, on the 
Judiciary, 109th Cong. 59 (Oct. 25, 2005) 
(hereinafter, “Continuing Need for Section 
5 ”) (prepared statement of Richard Eng- 
strom).

A report in the legislative record on 
voting rights in Mississippi confirmed that 
racially polarized voting remained pro­
nounced and peivasive there as well, with 
blacks in Mississippi “oveiwhelmingly 
tending] to vote for blacks and whites 
almost unanimously vot[ing] for whites in 
most black versus white elections.” See 2 
Evidence of Continued Need 1721 (appen­
dix to statement of Wade Henderson) (in­
ternal quotation marks omitted). More­
over, the report explained, “[n]o black 
candidate has won election to Congress or

the state legislature from a majority-white 
district in Mississippi.” Id. at 1722. And 
Mississippi is by no means unique among 
southern states in this respect. Another 
study in the legislative record found that 
during the 1980s and 1990s, “not a single 
black candidate won a majority-white dis­
trict in the South.” Benefits and Costs 69 
(responses of Drew S. Days III to ques­
tions submitted by Senators Cornyn, Co­
burn, Kennedy, Leahy, and Schumer). 
According to the National Commission on 
the Voting Rights Act, only 8% of all 
black U.S. representatives in 2000 were 
elected from majority-white districts. 1 
Evidence of Continued Need 159 (Nat’l 
Comm’n Report).

Shelby County objects to this Court’s 
reliance on evidence of racially polarized 
voting in assessing the continued need for 
Section 5, arguing that racially polarized 
voting constitutes private conduct, not 
“governmental discrimination—the only 
type of discrimination Congress is empow­
ered to remedy under the Fifteenth 
Amendment.” See Pl.’s Mot. at 31. But 
Shelby County fails to recognize the close 
link between racially polarized voting and 
intentional, state-sponsored minority vote 
dilution. It is only because of the contin­
ued existence of racially polarized voting 
that covered jurisdictions can structure 
their electoral processes so as to intention­
ally diminish the ability of minority voters 
to elect candidates of their choice. See 
Continuing Need for Section 5 59 (pre­
pared statement of Richard Engstrom). 
Although the persistence of racially polar­
ized voting—in and of itself—does not pro­
vide evidence of unconstitutional voting 
discrimination by covered jurisdictions and 
their officials, the persistence of measures 
that are intentionally designed to “dilute 
minority voting strength” does provide 
such evidence, and these measures can 
only be effective in areas that are marked 
hv racially polarized voting.



SHELBY COUNTY, ALA. v. HOLDER
C ite  as  81 1 F .S u p p .2 d  424 (I).D  C. 2011)

489

Shelby County argues, however, that the 
Attorney General is incorrect to rely even 
on evidence of intentional minority vote 
dilution in justifying the 200C reauthoriza­
tion of Section 5, since “Section 5 enforces 
the Fifteenth Amendment” and “claims al­
leging purposeful vote dilution are cogniza­
ble under the Equal Protection Clause of 
the Fourteenth Amendment—not under 
the Fifteenth Amendment.” See Pl.’s Re­
ply at 47. The Supreme Court has never 
“explicitly decided! ] that the Fifteenth 
Amendment applies to dilution claims.” 
See Bossier II, 528 U.S. at 359 n. 11, 120 
S.Ct. 866 (Souter, J., concurring in part, 
dissenting in part); see also supra pp. 460- 
61. But the Court in City of Rome relied 
on evidence of minority vote dilution in 
upholding the constitutionality of the 1975 
reauthorization of Section 5 as a valid ex­
ercise of Congress’s Fifteenth Amendment 
enforcement authority. See 446 U.S. at 
181, 100 S.Ct. 1548 (quoting Congress’s 
finding that “ ‘[a]s registration and voting 
of minority citizens increases [sic ], other 
measures may be resorted to which would 
dilute increasing minority voting 
strength’ ”) (internal citation omitted). 
Regardless of whether intentional state- 
sponsored minority vote dilution violates 
the Fifteenth Amendment, then, Shelby 
County’s argument that such evidence can­
not be used to sustain the 2006 reauthori- 15

15. In City o f  Rome, Justice Rehnquist, joined 
by Justice Stewart in dissent, voiced concerns 
as to the major ity 's  rel iance on evidence of 
vote dilution in justifying the 1975 reau thori­
zation of Section 5, arguing that anv “dispa­
rate  impact associated with nondiscriminato-  
ry electoral changes . . re su l t ing ]  from bloc 
voting" cannot establish "congressional pow ­
er  to devise an effective remedy for prior 
constitutional violations." Id. at 217, 100 
S.Ct. 1548 (Rehnquist, J., dissenting).  But 
Justice Rehnquist's  objection to the use of 
such evidence stemmed from the fact that, in 
City oj Rome, the citv had proven that its 
dilutive electoral changes were not pu rpose­
fully discriminatory. Id. at 214. 100 S.Ct. 
1548. Justice Rehnquist went on to explain

zation of Section 5 is directly refuted by 
City of Rome.u

Shelby County’s position on the irrele­
vance of intentional dilutive measures is 
also at odds with the history and purpose 
of Section 5. According to Shelby County, 
the so-called “second generation barriers” 
to voting that “do not interfere with the 
right to vote, but instead limit the effec­
tiveness of that vote,” cannot be used to 
justify Section 5’s constitutionality, see 
Pl.’s Reply at 21, because Section 5 was 
intended to combat only those tactics that 
were aimed at direct disenfranchisement, 
rather than indirect “dilutive mechanisms,” 
id. at 48. But Section 5 never had such a 
limited purpose. To the contrary, Con­
gress specifically designed the preclear­
ance requirement in order to prohibit cov­
ered jurisdictions from implementing any 
and all discriminatory voting changes, re­
gardless of the form they might take. See, 
e.g., Continuing Need 41 (Earls Respons­
es) (explaining that “Section 5 was not 
intended merely to increase minority reg­
istration rates, but rather to make sure 
that covered jurisdictions did not put in 
place . . .  a host of other practices that 
would negate or dilute the voting strength 
of newly enfranchised black voters.”). Pri­
or to the enactment of Section 5, covered 
jurisdictions were able to perpetuate mi-

that where  states seek "to prevent the p a r t ic ­
ipation of blacks in local government by 
measures o ther  than outright denial  of the 
franchise," Congress can "of course remedy 
and prevent such purposeful d iscrimination." 
Id. (emphasis added). Here, Shelby County 
has not proven— nor even alleged—that all 
instances of sta te-sponsored minority vote di­
lution in the legislative record are  free from 
discriminatory animus.  Hence,  even u n d e r  
the more limited view of Congress's enforce­
ment authority  endorsed by Justice Rehnquist 
in City o/ Rom e, the evidence of purposefully 
dilutive m easures  in the 2006 legislative r ec ­
ord could provide valid grounds for the r e a u ­
thorization of Section 5.



490 811 FEDERAL SUPPLEMENT, 2d SERIES

nority disenfranchisement by adopting 
new, deceptive discriminatory techniques 
as soon as the old ones had been stiTiek 
down. Although the primary focus of Sec­
tion 5 in 1965 may have been those tech­
niques that were being used to prevent 
blacks from entering polling places and 
casting ballots, “the preclearance require­
ment was not enacted to authorize covered 
jurisdictions to pour old poison into new 
bottles.” See Bossier II, 528 U.S. at 366, 
120 S.Ct. 866 (Souter, J., concurring in 
part, dissenting in part). I t is for this 
reason that the Supreme Court in Allen 
held that Section 5 bars not only those 
voting changes that interfere with minpri- 
ties’ access to the ballot, but also those 
changes that interfere with the weight of 
the ballots cast. See Allen, 393 U.S. at 
569, 89 S.Ct. 817 (recognizing that “[tjhe 
right to vote can be affected by a dilution 
of voting power as well as by an absolute 
prohibition on casting a ballot”); see also 
Continuing Need 36 (Arrington Respons­
es) (explaining that the Act has always 
been “about more than just the mere abili­
ty to cast a vote . . . The vote must be 
counted and must count”).

Although Shelby County seeks to por­
tray “second generation barriers” to vot­
ing as novel creations of the 1980s and 
1990s, such dilutive measures have long 
been employed by covered jurisdictions as 
a means of intentionally discriminating 
against minority voters. See, eg.. Evi­
dence of Continued Need 209 (explaining 
that vote dilution “consists of mechanisms 
employed by whites since the First Recon­
struction in the nineteenth centuiy”); In ­
troduction to Expiring Provisions 206 
(prepared statement of Chandler David­
son) (noting that dilutive tactics were 
“widely used in the Nineteenth Century 
when black males could vote” and “began 
to be used once more in the mid-Twentieth 
Century, particularly after the abolition of 
the white primary, as increasing numbers 
o( blacks began to be able to exercise the

franchise”). Indeed, Congress relied on 
evidence of these purposefully dilutive 
mechanisms in each of its previous reau­
thorizations of Section 5. See H.R.Rep. No. 
109—4T8, at 36. In its 2006 report, the 
House Committee on the Judiciary specifi­
cally found that the voting changes being 
sought by covered jurisdictions—which in­
cluded “enacting discriminatory redistrict­
ing plans; switching offices from elected 
to appointed positions; relocating polling 
places; enacting discriminatory annex­
ations and deannexations; setting num­
bered posts; and changing elections from 
single member districts to at-large voting 
and implementing majority vote require­
ments”—“resemblefd] those techniques 
and methods used in 1965, 1970, 1975, and 
1982.” Id. This Court sees no reason, 
then, why the continued existence of these 
dilutive techniques, as well as the contin­
ued existence of racially polarized voting— 
a necessaiy precondition for such tech­
niques to be effective—cannot support the 
2006 reauthorization of Section 5.

10. Section 5's Deterrent Effect

Any assessment of the persistence of 
intentional voting discrimination by cov­
ered jurisdictions must also take into ac­
count “the number of voting changes that 
have never gone forward as a result of 
Section 5.” See H.R.Rep. No. 109^178, at 
24. In 2006, the House Committee on the 
Judiciary found that Section 5 has de­
terred covered jurisdictions “from even at­
tempting to enact discriminatory voting 
changes,” as covered jurisdictions “ ‘tend 
to understand that submitting discrimina- 
toiy changes is a waste of taxpayer time 
and money and interferes with their own 
timetables, because the chances are good 
that an objection will result.’ ” Id. (quot­
ing 1 Evidence of Continued Need 177 
(Nat’l Comm’n Report)). In light of Sec­
tion 5’s substantial deterrent effect, any 
evaluation of the continued existence of



491SHELBY COUNTY, ALA. v. HOLDER
C ite as 811 F .S u p p .2 d  424 (D .D .C . 2011)

purposeful voting discrimination by cov­
ered jurisdictions cannot be based solely 
on the number of intent-based objections 
lodged by the Attorney General, or the 
number of lawsuits in which a three-judge 
court has denied preclearance to a covered 
jurisdiction’s racially-motivated voting 
change. Rather, the assessment of the 
continued need for Section 5 must also 
account for those intentionally discrimina­
tory voting changes that have been aban­
doned by covered jurisdictions prior to the 
formal preclearance process, simply as a 
result of Section 5’s existence.

Congress in 2000 heard testimony from 
a number of voting lights practitioners 
and scholars as to how Section 5 has pre­
vented the enactment of discriminatory 
voting changes “ ‘under the radar screen 
I in ways] that may not appear easily in 
statistics.’ ” See Nw. Austin I, 573 
F.Supp.2d at 264 (quoting Introduction to 
Expiring Provisions 17 (testimony of 
Theodore Shaw)). As one civil rights law­
yer in Alabama testified, “Section 5 pro­
vides a powerful deterrent . . . and based 
on my experience, I strongly believe that 
the continued Section 5 coverage in Ala­
bama is not only necessary but it is imper­
ative.” Benefits and Costs 4 (statement of 
Fred I). Gray). Other witnesses similarly 
expressed the view that “Ltjhe number of 
objections does not capture the Act’s tre­
mendous deterrent effect.” Continuing 
Need 100 (Karlan Responses); id. at 141 
(prepared statement of Anita S. Earls); 
Introduction to Expiring Provisions ICC 
(Shaw Responses); Impact and Effective­
ness GG (prepared statement of Joseph D. 
Rich). One witness interpreted the de­
cline in objection rates not as an indication 
that Section 5 is no longer needed, but as a 
sign of Section 5’s success in preventing 
covered jurisdictions from submitting dis­
criminatory voting changes for preclear­
ance in the first place. As she explained, 
“]i]f there was an environmental regulation 
that limited pollution levels, cleaner air

would not signify that it is no longer need­
ed, but that it is sufficiently serving its 
purpose and must be renewed.” Continu­
ing Need G8 (Earls Responses).

The three-judge coui't in Niv. Austin I 
provided “several concrete examples” of 
cases in which “formal objections were un­
necessary to thwart discriminatory voting 
changes,” because the mere existence of 
Section 5 served to deter covered jurisdic­
tions from “proposing certain changes once 
they realized the proposals would prompt 
objections.” See 573 F.Supp.2d at 2G5. 
Several witnesses highlighted the signifi­
cance of Section 5 not just as a deterrent 
to the enactment of discriminatory voting 
changes, but also as a kind of “bargaining 
chip” for minority voters, ensuring that 
minority political participation remains a 
“central consideration” in the structuring 
of electoral processes. See Continuing 
Need 190-91 (prepared statement of 
Pamela S. Karlan); see also Impact and 
Effectiveness GG (prepared statement of 
Joseph D. Rich).

Unfor tunately, it is simply not possible 
to determine the number of purposefully 
discriminatory voting changes that have 
been deterred by Section 5. See, e g., Con­
tinuing Need. 114 (Pildes Responses) (not­
ing that “the extent to which the existence 
of § 5 creates an effective deterrent effect 
is extremely difficult, perhaps impossible, 
to quantify”); Introduction to Expiring 
Provisions 73 (Hasen Responses) (explain­
ing that the magnitude of Section 5’s “de­
terrent effect cannot be quantified from 
the record”). Nor is it possible to deter­
mine—at least to any reasonable degree of 
certainty—whether, in the absence of Sec­
tion 5, covered jurisdictions would resort 
to a host of unconstitutional, discriminato­
ry voting practices. See Introduction to 
Expiring Provisions 39^10 (Hasen Re­
sponses); see also Nw. Austin I, 573 
F.Supp.2d at 2G7 (recognizing that “no one



492 811 FEDERAL SUPPLEMENT, 2d SERIES

can know for sure what would happen if 
section 5 were allowed to expire”). Never­
theless, in examining whether Section 5 
remains “justified by current needs,” Nw. 
Austin II, 129 S.Ct. at 2512, it is signifi­
cant to recall Congress’s finding in 2006 
that the preclearance requirement has con­
tinued to deter covered jurisdictions from 
even attempting to adopt discriminatory 
voting changes in the first place. See 
H.R.Rep. No. 109—478, at 24. It therefore 
seems fair to assume that the instances of 
intentional voting discrimination docu­
mented in the legislative record represent 
only a fraction of those instances that oth­
erwise would have occurred in the absence 
of Section 5, given the number of “discrim­
inatory voting changes that have never 
materialized” as a result of the preclear­
ance requirement. See id. at 36.

C. Section 5 as a Congruent and Pro­
portional Response to a Continuing 
History and Pattern of Unconstitu­
tional Conduct by Covered Juris­
dictions

1. A Continuing History and Pattern 
of Unconstitutional Conduct

[10] Having reviewed the evidence of 
unconstitutional voting discrimination in 
the 2006 legislative record, the Court must 
now answer the central question posed by 
this case: “does the 2006 legislative record 
contain sufficient evidence of contempo­
rary discrimination in voting to justify 
Congress’s decision to subject covered ju­
risdictions to section 5 preclearance for 
another twenty-five years?” See Nw. Aus­
tin I, 573 F.Supp.2d at 265. In other 
words, did Congress possess the requisite 
“evidence of a pattern of constitutional vio­
lations on the pait of the States,” Hibbs, 
538 U.S. at 729, 123 S.Ct. 1972, which is 
needed to satisfy the second step of the 
three-part Boerne analysis? For' several 
reasons, this Court agrees with the thr ee- 
judge court in Nw. Austin I that “the 2006 
legislative record is plainly adequate to

justify section 5’s ‘strong remedial and 
preventive measures.’ ” 573 F.Supp.2d at 
271 (quoting Boerne, 521 U.S. at 526, 117 
S.Ct. 2157).

First, the legislative record amassed by 
Congress in support of the 2006 reauthori­
zation of Section 5 is at least as strong as 
that held sufficient to uphold the 1975 
reauthorization of Section 5 in City of 
Rome. See Nw. Austin I, 573 F.Supp.2d at 
265-66, 270-71. In City of Rome, the 
Supreme Court looked to three types of 
evidence in evaluating whether Section 5 
remained justified by current needs: evi­
dence of (1) continued racial disparities in 
voter registration; (2) the number of mi­
nority elected officials; and (3) the nature 
and number of Section 5 objections. In 
1975, there were 16, 17.8, and 23.6 percent­
age point disparities in voter registration 
rates between blacks and whites in Louisi­
ana, North Carolina, and Alabama—dis­
parities that the Supreme Court character­
ized as “significant.” See S.Rep. No. 94- 
295, at 779; see also City of Rome, 446 
U.S. at 180, 100 S.Ct. 1548. In 2004, there 
were 14.2, 17.8, and 19.2 percentage point 
disparities in voter registration rates be­
tween blacks and non-Hispanic whites in 
Virginia, Arizona, and Florida, and dispari­
ties of over 40 percentage points in voter 
registration rates between Hispanics and 
non-Hispanic whites in Arizona, California, 
Virginia, Georgia, and North Carolina. 
See 2004 U.S. Census Report. These dis­
parities are certainly comparable to those 
deemed “significant” by the Supreme 
Court in City of Rome.

With respect to minority elected offi­
cials, in 2006, just as in 1975, Congress 
recognized the significant progress that 
had been made as far as the number- of 
African-American elected officials in cov­
ered jurisdictions, but also found that Afri­
can-Americans remained under-represent­
ed in state legislatures in the South based



SHELBY COUNTY, ALA. v. HOLDER
C ite  as 811 F .S u p p .2 d  424 (D .D .C. 2011)

493

on their percentage of the population. See 
H.R.Rep. No. 109—178, at 33. Congress 
additionally found that three of the cov­
ered states that had never elected a black 
representative to statewide office as of 
1975 (Mississippi, Louisiana, and South 
Carolina) still had never elected a black 
representative to statewide office as of 
2006. Id.

In terms of the objection-related statis­
tics in the legislative record—the third 
categoiy of evidence relied on by the Su­
preme Court in City of Rome—Congress 
in 2006 acknowledged that the objection 
rate had been lower in recent years than 
in the years immediately prior to the 1975 
reauthorization of Section 5. But Congress 
also received evidence indicating that the 
objection rate has always been below 5%, 
see Introduction to Expiring Provisions 
219 (attachment to Hasen Prepared State­
ment), and that there were still more than 
700 objections lodged by the Attorney 
General since 1982, see H.R.Rep. No. 109- 
478, at 21, with more objections lodged 
after 1982 than before, see 1 Evidence of 
Continued Need 172-73 (Nat’l Comm’n 
Report). In light of this data, the House 
Committee on the Judiciary had good rea­
son to conclude that the evidence of voting 
discrimination in the 2000 legislative rec­
ord still “resemb!e[d]” the evidence before 
Congress when it reauthorized Section 5 in 
1975. See H.R.Rep. No. 109—478, at 6. 
This “resemblance” of the 2006 legislative 
record to the 1975 legislative record is 
critical, given that Boeme and later cases 
applying the congruence and proportionali­
ty framework have repeatedly cited the 
legislative record at issue in City of Rome 
as containing precisely the kind of evi­
dence needed to sustain remedial, prophy­
lactic enforcement legislation like Section 
5. See Nw. Austin I, 573 F.Supp.2d at 271 
(citing Boeme, 521 U.S. at 530, 117 S.Ct. 
2157; Fla. Prepaid, 527 U.S. at 640, 119 
S.Ct. 2199; Garrett, 531 U.S. at 369, 373- 
74, 121 S.Ct. 955).

In addition to the three categories of 
evidence relied on by the Supreme Court 
in City of Rome, Congress in 2006 identi­
fied several other forms of evidence that 
bear directly on the persistence of uncon­
stitutional voting discrimination by cov­
ered jurisdictions. As previously men­
tioned, one study in the legislative record 
revealed that there were 421 objections 
lodged between 1982 and 2006 in which 
the Attorney General denied preclearance 
to a covered jurisdiction’s proposed voting 
change based on his inability to find that 
the change was not motivated by a racial­
ly discriminatory purpose. See Preclear­
ance Standards 180 tbl. 2 (McCrary 
Study). Another study found that 205 
voting changes were withdrawn by cov­
ered jurisdictions after receipt of an MIR, 
thereby suggesting that the covered juris­
diction may have known that its change 
could not withstand federal sontinv. See 
1 Evidence of Continued Need 178 (Nat’l 
Comnfin Report). There were 25 unsuc­
cessful judicial preclearance suits filed 
since 1982, including some in which pre­
clearance was denied on the basis of dis­
criminatory intent. See Niv. Austin I, 
573 F.Supp.2d at 266. And there were at 
least 105 successful Section 5 enforcement 
actions between 1982 and 2006, some of 
which led to the abandonment of unpre- 
eleared voting changes by covered juris­
dictions, while others led to intent-based 
denials of preclearance after covered ju­
risdictions were forced to submit their 
voting changes for federal review. See 1 
Evidence o f Continued Need 185-86 (Nat’l 
Comm’n Report); see also Preclearance 
Standards 83 (appendix to statement of 
Brenda Wright). From 1982 to 2006, 
there were tens of thousands of federal 
obsei-vers dispatched to monitor elections 
in covered jurisdictions, see 2006 Amend­
ments § 2(b)(3)-(4), (8), 120 Stat. at b il ­
ls , many of whom played a key role in 
preventing the attempted intimidation and



494 811 FEDERAL SUPPLEMENT, 2d SERIES

harassment of minority voters at the polls, 
see H.R.Rep. No. 109-478, at 44. And 
perhaps most importantly, there were at 
least 14 reported Section 2 cases since 
1982 involving judicial findings of inten­
tional or unconstitutional voting disctimi- 
nation by covered jurisdictions. Nw. A us­
tin I, 573 F.Supp.2d at 258. As the 
three-judge court in Nw. Austin I pointed 
out, “all this evidence becomes even more 
compelling given Congress’s finding that 
section 5’s preclearance requirement has 
deterred covered jurisdictions from even 
attempting to implement an unknown and 
unknowable number of [voting] changes.” 
Id. a t 266.

It is noteworthy that the evidence of 
unconstitutional voting discrimination in 
the 2006 legislative recor d far exceeds the 
evidence of unconstitutional discrimination 
found sufficient to uphold the challenged 
legislation in both Ilibbs and Lane. See 
Nw. Austin I, 573 F.Supp.2d at 271. In 
Hibbs, a male employee of the Nevada 
Department of Human Resources brought 
suit under the FMLA after- he was dis­
charged for failing to return to work be­
cause he had been caring for his ailing 
wife. Nevada contended that Congress 
had exceeded its Fourteenth Amendment 
enforcement authority by abrogating state 
sovereign immunity in the FMLA. Re­
jecting this challenge, the Supreme Court 
held that Congress “had evidence of a 
pattern of constitutional violations on the 
part of the States in this area,” which 
justified enactment of the remedial § 5 
legislation. 538 U.S. at 729, 123 S.Ct. 
1972. In so holding, the Supreme Court 
relied on just four pieces of evidence:

(1) a Senate Report citation to a Bureau 
of Labor Statistics survey revealing dis­
parities in private-sector provision of 
parenting leave to men and women; (2) 
submissions from two sources at a hear­
ing on the Parental and Medical Leave 
Act of 1986 .. . that public-sector paren­
tal leave policies “diffefr] little” from

private-sector policies; (3) evidence that 
15 States provided women up to one 
year of extended maternity leave, while 
only 4 States provided for similarly ex­
tended paternity leave; and (4) a House 
Report’s quotation of a study that found 
that failure to implement uniform stan­
dards for parenting leave would “leavfe] 
Federal employees open to discretionary 
and possibly unequal treatment.”

Lane, 541 U.S. at 528 n. 17, 124 S.Ct. 1978 
(citation omitted) (summarizing Hibbs, 538 
U.S. at 728-33, 123 S.Ct. 1972).

In other words, the Supreme Court up­
held the challenged provision of the 
FMLA as responsive to a documented his­
tory and pattern of unconstitutional con­
duct by the states, based solely on (1) a 
survey that found discriminatory parental 
leave practices by private-sector employ­
ers, not state employers; and (2) three 
other forms of evidence of employers’ dis­
criminatory practices with respect to pa­
rental. leave, despite the fact that the 
FMLA provision at issue provided for 
fam ily  leave, not parental leave. See 
Hibbs, 538 U.S. at 746-48, 123 S.Ct. 1972 
(Kennedy, J., dissenting). The majority 
concluded that evidence relating to paren­
tal leave was “relevant because both par­
enting and family leave provisions respond 
to ‘the same gender stereotype: that wom­
en’s family duties trump those of the 
workplace.’” Id. at 748, 123 S.Ct. 1972 
(quoting 538 U.S. at 731 n. 5, 123 S.Ct. 
1972). But as Justice Kennedy pointed 
out in dissent, “the question is not whether 
the family leave provision is a congruent 
and proportional response to general gen­
der-based stereotypes in employment . . . 
[but] whether it is a proper remedy to an 
alleged pattern of unconstitutional discrim­
ination by States in the grant of family 
leave.” Id. at 749, 123 S.Ct. 1972.

In Lane, the Supreme Court upheld Ti­
tle II of the ADA as applied to claims by



SHELBY COUNTY, ALA. v. HOLDER
C ite  as 811 F .S u p p .2 d  424 (D .D .C. 2011)

4 %

the disabled alleging that they had been 
denied access to the courts based on “sta­
tistical, legislative, and anecdotal evidence 
of the widespread exclusion of persons 
with disabilities from the enjoyment of 
public services.” Lane, 541 U.S. at 529, 
124 S.Ct. 1978. Significantly, however, the 
Supreme Court in Lane identified only 
“two reported cases finding that a disabled 
person’s federal constitutional lights were 
violated” as a result of being denied access 
to the courts. Id. at 544, 124 S.Ct. 1978 
(Rehnquist, C.J., dissenting) (citing 541 
U.S. at 525 n. 14, 124 S.Ct. 1978). Aside 
from those two cases, the only evidence 
that the Court identified with respect to 
“due process ‘access to the courts’ ” viola­
tions was (1) the testimony of two wit­
nesses before a House subcommittee as to 
the “ ‘physical inaccessibility’ of local 
courthouses,” even though neither witness 
“reported being denied the right to be 
present at constitutionally protected court 
hearings”; and (2) a report by the ADA 
Task Force on the Rights and Empower­
ment of Americans with Disabilities, which 
contained “a few anecdotal handwritten re­
ports of physically inaccessible court­
houses.” Id. at 545, 124 S.Ct. 1978. As 
Chief Justice Rehnquist noted in dissent, 
these types of anecdotes, do “not state a 
constitutional violation,” since “[a] violation 
of due process occurs only when a person 
is actually denied the constitutional right 
to access a given judicial proceeding.” Id. 
at 546, 124 S.Ct. 1978. Yet the majority in 
Lane found this evidence sufficient to es­
tablish “a pattern of unconstitutional treat­
ment in the administration of justice,” at 
least when viewed against the “backdrop 
of pervasive unequal treatment in the ad­
ministration of state services and pro­
grams.” Id. at 524, 124 S.Ct. 1978.

The evidence relied on by the Supreme 
Court to uphold the challenged legislation 
in Hibbs and Lane “pales in comparison to 
the extensive record Congress compiled 
when extending section 5.” Nw. Austin  /,

573 F.Supp.2d at 271. Just on the subject 
of formal judicial findings of unconstitu­
tional conduct, Congress in 2006 identified 
three times as many reported cases since 
1982 in which covered jurisdictions com­
mitted unconstitutional voting discrimina­
tion against minority voters (6) than the 
number of cases Lane identified in which a 
state unconstitutionally denied a disabled 
person access to the courts (2). Compare 
S.Rep. No. 109-295, at 65 with Lane, 541 
U.S. at 544, 124 S.Ct. 1978 (Rehnquist, 
C.J., dissenting) (citing 541 U.S. at 525 n. 
14, 124 S.Ct. 1978). This is particularly 
remarkable, as the Niv. Austin I court 
noted, “given that section 5 was actively 
deterring constitutional violations through­
out the period under review.” 573 
F.Supp.2d at 272.

But, of course, there is much more in 
the 15,000-page record supporting the 
2006 reauthorization of Section 5. The cir­
cumstantial evidence of unconstitutional 
voting discrimination relied on by Con­
gress also far outweighs the circumstantial 
evidence of unconstitutional discrimination 
relied on by the Supreme Court in Hibbs 
and Lane. In Lane, for example, the Court 
cited as circumstantial evidence of uncon­
stitutional discrimination the testimony of 
several disabled persons as to the physical 
inaccessibility of local courthouses—even 
though physical inaccessibility, in and of 
itself, does not reflect a constitutional vio­
lation. See 541 U.S. at 546, 124 S.Ct. 1978 
(Rehnquist, C.J., dissenting) (explaining 
that “[w]e have never held that a person 
has a constitutional right to make his way 
into a courtroom without any external as­
sistance”). By contrast, many of the ex­
amples of voting discrimination cited by 
Congress in support of the 2006 reauthori­
zation of Section 5 are highly suggestive of 
unconstitutional conduct: whether it be 
Kilmichael, Mississippi’s decision to cancel 
its 2001 local elections in which a signifi­
cant number of African-Americans sought



496 811 FEDERAL SUPPLEMENT, 2d SERIES

office immediately after new Census data 
revealed that African-Americans recently 
had become a majority of the town’s popu­
lation; Charleston County, South Car­
olina’s sudden decision in 2000 to change 
the method of election for its school board 
to one that had recently been struck down 
as discriminatory, just after African- 
Americans won a majority of seats on the 
board for the first time; Alabama poll 
officials’ 1992 attempts to “close the doors” 
on African-American voters before the 
voting hours were over; Louisiana’s 2001 
decision to purposefully “obliterate” a ma­
jority-black district in Orleans Parish; 
South Dakota’s passage of a photo identifi­
cation law in 2002 that state legislators 
conceded was adopted in order to “retali­
ate” against the recent rise in Native 
American voter registration; Mississippi’s 
1995 attempt to revive its dual registration 
system without seeking preclearance, even 
though prior versions of the system had all 
been invalidated as discriminatory; or 
Waller County, Texas’s suspiciously-timed 
reduction in voting opportunities for Prai­
rie View A & M students immediately 
before a 2004 election that was marked by 
the presence of two black Prairie View A 
& M students as candidates for office. 
None of these incidents resulted in a for­
mal judicial finding of unconstitutional vot­
ing discrimination. Yet each case—and 
many others like them in the 15,000-page 
legislative record—supports the conclusion 
that unconstitutional voting discrimination 
persists in covered jurisdictions, notwith­
standing the deterrent effect of Section 5.

In evaluating whether Congress proper­
ly found a history and pattern of unconsti­
tutional conduct sufficient to justify the 
2006 reauthorization of Section 5, it is also 
significant to recall the deference to which 
Congress is entitled when it legislates to 
enforce the substantive guarantees of the 
Fifteenth Amendment. As the Supreme 
Court acknowledged in Nw. Austin II, 
“[t]he Fifteenth Amendment empowers

‘Congress,’ not the Court, to determine in 
the first instance what legislation is need­
ed to enforce it.” 129 S.Ct. at 2513. And 
as explained earlier, Congress acts at the 
pinnacle of its constitutional enforcement 
authority when it legislates to protect a 
fundamental right, or when it legislates to 
prohibit discrimination against a suspect 
class. See supra pp. 461-63. In reauthor­
izing Section 5 in 2006, Congress did both.

Moreover, Congress’s determination 
that there is a continued need for Section 5 
was not based on a perfunctory review of a 
few isolated examples of voting discrimina­
tion by covered jurisdictions. Instead, 
Congress “approached its task seriously 
and with great care.” Nw. Austin  /, 573 
F.Supp.2d at 265. It held 22 hearings 
over the course of eight months, and heard 
testimony from 92 witnesses, including 
Justice Department attorneys, law profes­
sors, social scientists, and civil rights liti­
gators. In addition to that testimony, the 
evidence that Congress collected consisted 
of statistical and other analyses, objection 
letters, law review articles, judicial deci­
sions, and first-hand accounts of discrimi­
nation. Ultimately, Congress amassed a 
15,000-page legislative record in support 
of its decision to renew Section 5—a rec­
ord that the Supreme Court has described 
as “sizeable,” Nw. Austin II, 129 S.Ct. at 
2513, and that dwarfs those deemed suffi­
cient in Lane and Hibbs. Shelby County 
points out that “[i]t is the quality of the 
evidence that matters—not the quantity of 
evidence.” See Pl.’s Reply at 38. But the 
Supreme Court has often acknowledged 
the quantity of the evidence considered by 
Congress in the course of assessing the 
sufficiency of that evidence. See, e g., Kat- 
zenbach, 383 U.S. at 309, 86 S.Ct. 803 
(describing the legislative histoiy of the 
Act as “voluminous”). And surely Con­
gress’s judgment that “extending the ex­
piring provisions of the Voting Rights Act



SHELBY COUNTY, ALA. v. HOLDER
C ite  as 811 F .S u p p .2 d  424 (D .D .C. 2011)

497

is still necessary,” S.Rep. No. 109-295, at 
2, is all the more valuable given the “sheer 
bulk of the record showing both continued 
problems and significant improvements,” 
id. a t 15, which Congress reviewed prior to 
reaching its conclusion.

There are additional reasons to accord 
significant weight to Congress’s 2006 deci­
sion to renew Section 5. First, Congress in 
2006 did not enact new legislation, but 
instead reauthorized legislation that had 
already been in effect for more than 40 
years. During those 40 years, the Su­
preme Court upheld the constitutionality 
of Section 5 on four separate occasions, 
each time finding that “circumstances con­
tinued to justify the provision[ ].” See Nw. 
Austin 11, 129 S.Ct. at 2510 (citing Geor­
gia, 411 U.S. 526, 93 S.Ct. 1702; City of 
Rome, 446 U.S. 156, 100 S.Ct. 1548; Lo­
pez, 525 U.S. 266, 119 S.Ct. 693); see also 
Katzenbach, 383 U.S. at 334, 86 S.Ct. 803. 
Twice, the Supreme Court has assessed 
facial challenges to Section 5 like the one 
raised here by Shelby County, and both 
times the Court has found that Section 5 
passed constitutional muster based on evi­
dence of continued voting discrimination 
by covered jurisdictions. See Katzenbach, 
383 U.S. at 334, 86 S.Ct. 803; City of 
Rome, 446 U.S. at 182, 100 S.Ct. 1548.

The Supreme Court in Nw. Austin 11 
made clear that past discrimination alone 
cannot sustain Section 5, see 129 S.Ct. at 
2511, but the Court by no means suggest­
ed that histoiy was irrelevant to the con­
stitutional analysis. In Roerne and the 
cases applying the congruence and pro­
portionality framework since Boeme, the 
Supreme Court has acknowledged the sig­
nificance of an established history of un­
constitutional discrimination in evaluating 
the need for remedial enforcement legisla­
tion, often citing examples of discrimina­
tion at least several decades old in order 
to justify the challenged legislation. See, 
e.g., Lane, 541 U.S. at 524, 124 S.Ct. 1978

(describing the historical “backdrop” of 
discrimination against the disabled, and 
citing examples of such discrimination dat­
ing from the late 1970s); Hibbs, 538 U.S. 
at 729, 123 S.Ct. 1972 (recognizing y[t]he 
histoiy of the many state laws limiting 
women’s employment opportunities,” and 
providing examples of cases upholding the 
validity of such laws as far back as 1873); 
Richard L. Hasen, Congressional Power 
to Renew the Preclearance Provisions of 
the Voting Rights Act After Tennessee v. 
Lane, 66 O hio St. L.J. 177, 200 (2005) 
(interpreting Lane to mean that “old” evi­
dence of voting discrimination could be 
used to support a reauthorization of Sec­
tion 5).

When courts assess individual instances 
of alleged voting discrimination like those 
described in the 2006 legislative record— 
for example, in the context of a Section 2 
suit or a direct constitutional challenge— 
they also look to historical evidence to 
determine whether there has been inten­
tionally discriminatoiy, unconstitutional 
conduct. As the Supreme Court explained 
in Rogers v. Lodge, “[ejvidence of histori­
cal discrimination is relevant to drawing an 
inference of purposeful discrimination, par­
ticularly in cases . .. where the evidence 
shows that discriminatoiy practices were 
commonly utilized, that they were aban­
doned W'hen enjoined by the courts or 
made illegal by civil rights legislation, and 
that they were replaced by practices 
which, though neutral on their face serve 
to maintain the status quo.” 458 U.S. at 
625, 102 S.Ct. 3272; see also Charleston 
Cnty., 316 F.Supp.2d at 305 (explaining 
that under Arlington Heights, “[tjhe his­
torical background of the jurisdiction’s de­
cision” must be considered in determining 
whether “discriminatoiy intent was in fact 
a motivating factor in a jurisdiction’s en­
actment of legislation”). Given the signifi­
cance of historical context in assessing 
both the general need for remedial, pro-



498 811 FEDERAL SUPPLEMENT, 2d SERIES

IT:

5”

phylactic enforcement legislation and 
whether particular instances of alleged 
voting discrimination do, in fact, amount to 
constitutional violations, it is clear that any 
assessment of the continued need for Sec­
tion 5 cannot be undertaken in a historical 
vacuum.

This Court agrees with the three-judge 
court in Nw. Austin I that Congress’s 
“predictive judgment” as to the continued 
need for Section 5 warrants “particular- 
respect,” given that it was a prediction 
based “on experience, requiring less in the 
way of conjecture than when Congress 
enacts legislation for the first time.” 573 
F.Supp.2d at 267. In reauthorizing Sec­
tion 5 in 2006, Congress could not be cer­
tain as to whether unconstitutional voting 
discrimination would increase in the ab­
sence of Section 5, and whether, just as in 
1965, private enforcement actions would 
once again prove insufficient to protect 
minorities’ voting rights if Section 5 w'ere 
allowed to expire. But cour-ts “must ac­
cord substantial deference to the pre­
dictive judgments of Congress . . . particu­
larly when, as here, those predictions are 
so firmly rooted in relevant history and 
common sense.” Id. (quoting McConnell 
v. FEC, 540 U.S. 93, 165, 124 S.Ct. 619, 157 
L.Ed.2d 491 (2003)) (internal quotation 
marks and citations omitted). As the Su­
preme Court noted in Nw. Austin II, Con­
gress is a co-equal Branch that is empow­
ered under the Fifteenth Amendment “to 
determine in the first instance what legis­
lation is needed to enforce it,” and courts 
must be cautious when engaging in the 
grave and delicate role of assessing the 
constitutionality of carefully-considered 
legislation. See 129 S.Ct. at 2513. And in 
2006, Congress concluded after many 
months of deliberation and compilation of a 
massive record that “a failure to reauthor­
ize the temporaiy provisions [of the Voting 
Rights Act], given the record established, 
would leave minority citizens with the in­
adequate remedy of a Section 2 action,”

which, in light of past experience, would 
not be “enough to combat the efforts of 
certain States and jurisdictions to discrimi­
nate against minority citizens in the elec­
toral process.” H.R.Rep. No. 109-178, at 
57.

Congress’s predictive judgment was 
based not only on the established pre-1965 
histoi-y of unconstitutional state-sponsored 
voting discrimination in the South, hut also 
on evidence of Section 5’s substantial de­
terrent effect over 40 years. Most impor­
tantly, it was based on the extensive 15,- 
000-page legislative record replete with 
direct and circumstantial evidence of con- 
temporai-y voting discrimination by cov­
ered jurisdictions—voting discrimination 
that occurred despite the existence of Sec­
tion 5. This Court finds, then, that Con­
gress satisfied its burden in 2006 of identi­
fying a continuing “histoiy and pattern of 
unconstitutional . . .  discrimination by the 
States,” Garrett, 531 U.S. at 368, 121 S.Ct. 
955, which was sufficient to justify the 
reauthorization of Section 5 as remedial, 
prophylactic enforcement legislation.
2. The Congruence and Proportionality 

of Section 5
111 I The third and final step of the 

Boeme analysis requires the Court to de­
cide whether Section 5 still constitutes a 
“congruent and proportional” response to 
the problem that it targets. Shelby Coun­
ty casts Section 5 as an unduly broad 
remedial measure, arguing that “[l]ike 
RFRA, Section 5’s ‘sweeping coverage en­
sures its intrusion at every level of gov­
ernment, displacing laws and prohibiting 
official actions’ regarding any change in 
voting laws.” Pl.’s Reply at 21 (quoting 
Boeme, 521 U.S. at 532, 117 S.Ct. 2157).
In a sense, Shelby County is correct: Sec­
tion 5 does require covered jurisdictions to 
seek preclearance for- all changes to their 
voting practices or procedures, regardless 
of how trivial or innocuous those changes

V . i



SHELBY COUNTY, ALA. v. HOLDER
C ite  as  8 11 F .S u p p .2 d  424 (D .I).C . 2011)

499

may be. See, e.g., Nw. Austin II, 129 
S.Ct. at 2511 (noting that “the preclear­
ance requirement applies broadly”). But 
Section 5 is nonetheless limited in mean­
ingful ways. Indeed, the Supreme Court in 
Boeme praised Section 5 as an exemplary 
congruent and proportional remedy, point­
ing to the Act’s temporal and geographic 
limits as a means of distinguishing it from 
RFRA, which lacked a “termination date 
or teimination mechanism.” See Boeme, 
521 U.S. at 532-33, 117 S.Ct. 2157. For 
purposes of assessing the congruence and 
proportionality of Section 5 as reauthor­
ized in 2006, then, it is significant that “the 
limiting features of section 5 the Court 
believed so compelling in the City of 
Boeme cases all remain in place today.” 
Nw. Austin /, 573 F.Supp.2d at 274.

Despite Shelby County’s suggestion that 
Section 5 has been transformed from an 
“emergency” provision into a “permanent” 
intrusion on state sovereignty, see Pl.’s 
Reply at 43, Congress in 2006 did not 
choose to make Section 5 permanent. In­
stead, it extended the preclearance re­
quirement for 25 years, and provided for 
congressional reconsideration of the Act’s 
temporary provisions in 15 years. See 
S.Rep. No. 109-295, at 5; 42 U.S.C.
§ 1973b(a)(7), (8). Although 25 years is 
longer than the 7 year extension of Section 
5 upheld by the Supreme Court in City of 
Rome, the 2006 extension is the same 
length as the 1982 extension. And Con­
gress had at least two good reasons for- 
selecting 25 years as the length of the 
extension. First, a renewal period of more 
than 20 years was needed to cover two 
decennial redistricting cycles. Because 
“most section 5 activity ‘occurs during re­
districting, which only happens every ten 
years following each census,’ a shorter ex­
tension would [havel ‘capturefd] only one 
redistricting cycle,’ ” which would not have 
provided as much “ ‘evidence . . .  to allow 
Congress to make the same reasoned de­
termination regarding renewal’ ” that the

2006 Congress was able to make as a 
result of the previous 25-vear renewal of 
Section 5 in 1982. See Nw. Austin I, 573 
F.Supp.2d at 267 (internal citation omit­
ted); see also Introduction to Expiring 
Provisions 167 (Shaw Responses). Sec­
ond, a shorter extension period would not 
have encouraged as many covered jurisdic­
tions to seek bailout. Under the 1982 
Amendments, a covered jurisdiction peti­
tioning for bailout must demonstrate that 
it has complied with the Act’s require­
ments for the past ten years. See 42 
U.S.C. § 1973b(a). Any renewal of Sec­
tion 5 for a period of less than ten years 
therefore “ ‘would [have] completely nul- 
lif[ied] the current incentive ffor] covered 
jurisdictions to maintain clean voting rec­
ords.’ ” Nw. Austin I, 573 F.Supp.2d at 
267 (internal citation omitted).

For these reasons, Congress decided 
that “another 25 years of remedial meas­
ures (for a total of 67 years of remedial 
measures under the VRA until 2032) re­
mains appropriate given the near century 
of discrimination the Act is designed to 
combat.” H.R.Rep. No. 109-478, at 58. 
Like the three-judge court in Niv. Austin 
/, this Court “see[s] no basis for question­
ing this quintessentially legislative judg­
ment.” 573 F.Supp.2d at 268. Although 
the 25-vear renewal period is substantial, 
the fact that Section 5 continues to be 
temporally limited distinguishes it from ev- 
eiy piece of legislation that has been 
struck down by the Supreme Court as 
lacking congruence and proportionality un­
der Boeme.

In addition to its teimination date, Sec­
tion 5 also remains limited by its teimi­
nation mechanism, as jurisdictions may 
bailout of Section 5 coverage if they meet 
certain statutory requirements. See Nw. 
Austin II, 129 S.Ct. at 2509; 42 U.S.C. 
§ 1973b(a). The Court in Boeme pointed 
to the existence of this termination mecha­



500 811 FEDERAL SUPPLEMENT, 2d SERIES

nism, which “ensure[d] that the reach of 
the Voting Rights Act was limited to those 
cases in which constitutional violations 
were most likely,” as indicative of Section 
5’s congruence and proportionality. See 
521 U.S. at 533, 117 S.Ct. 2157. Since 
Boeme, the bailout provision has remained 
in effect. See H.R. Rep. No. 101M78, at 
55 (noting that “H.R. 9 preserves those 
same provisions” that were cited approv­
ingly by the Court in Boeme, as covered 
jurisdictions may still “escape coverage by 
showing the danger of substantial voting 
discrimination has not materialized during 
the preceding (now ten) years”). Under 
42 U.S.C. § 1973b(a), a jurisdiction may 
seek to terminate its coverage under Sec­
tion 5 by filing a declaratory judgment 
action demonstrating that, for the past ten 
years, “it has not used any forbidden vot­
ing test, has not been subject to any valid 
objection under § 5, and has not been 
lound liable for other voting rights viola­
tions; it must also show that it has ‘en­
gaged in constructive efforts to eliminate 
intimidation and harassment’ of voters, 
and similar measures.” Niv. Austin 11, 
129 S.Ct. at 2509 (quoting 
§§ 1973b(a)(l)(A)-(F)).

Shelby County questions whether bail­
out is “a realistic option,” citing the fact 
that only 6% of the jurisdictions originally 
covered by the Act have successfully bailed 
out since 1965. See Pl.’s Reply at 33. But 
this statistic is misleading. Since 1984— 
when the 1982 Amendments liberalizing 
the bailout procedure went into effect—the 
Attorney General has consented to every 
bailout action that has been filed. See 
Berman Deck 1111 27, 29. Indeed, since the 
initiation of this lawsuit in April 2010, the 
Attorney General has consented to an ad­
ditional seven bailout suits that have been 
filed by covered jurisdictions. See Def.’s 
Second Notice of Supp. Info. [Docket En­
try 81] at 2; Def.’s Mot. at 72; Berman 
Deck 1127. Congress heard testimony 
during the 2006 reauthorization hearings

from J. Gerald Hebert, former Acting 
Chief of the Civil Rights Division of the 
Justice Department, who, at the time of 
his testimony, had represented all of the 
covered jurisdictions to successfully bail 
out since 1984. See Voting Rights Act: 
An Examination of the Scope and, Criteria 
for Coverage Under the Special Provisions 
of the Act, Hearing Before the Subcomm. 
on the Constitution of the H. Comm, on 
the Judiciary, 109th Cong. 90 (Oct. 20, 
2005) (hereinafter, “Scope and Criteria ”) 
(prepared statement of J. Gerald Hebert) 
(hereinafter, “Hebert Prepared State­
ment”). According to Hebert, the reason 
for the low number of successful bailout 
actions is not that “jurisdictions are apply­
ing and being denied” but that “jurisdic­
tions are just not applying.” Id.

There are several plausible explanations 
for this failure to seek bailout. As Profes­
sor Karian noted during her 2006 testimo­
ny before the Senate Judiciary Committee, 
it is possible that “jurisdictions have not 
sought bailout because they have not satis­
fied all the conditions . . . and see no point 
in a futile effort to bail out.” Continuing 
Need. 93 (Karian Responses). This, of 
course, could mean that the criteria for 
bailout are overly rigorous; but Congress 
in 2006 heard testimony that “[m]ost of the 
factors to be demonstrated are easily pi-ov­
en for jurisdictions that do not discrimi­
nate in their voting practices.” See Scope 
and Criteria 90 (Hebert Prepared State­
ment) (rejecting the contention that “the 
criteria [for bailout] are . . .  too difficult to 
meet”). Accepting that the bailout re­
quirements are appropriately tailored to 
identify those jurisdictions with “clean” 
voting tights records, which appears to be 
the case, see id. at 104 (describing the 
bailout requirements as “perfectly tai­
lored”), the failure of so many covered 
jurisdictions to seek bailout likely means 
that these jurisdictions—or governmental 
units within these jurisdictions—have, in 
fact, committed voting rights violations in



501SHELBY COUNTY, ALA. v. HOLDER
C ite as 811 F.Supp.2<l 424 (D.D.C. 2011)

recent years, thereby justifying their con­
tinued coverage under the Act.

Another possible reason for the low bail­
out rate is the minimal administrative cost 
associated with preclearance, and the fact 
that covered jurisdictions see no need to 
avoid the preclearance requirement. Con­
gress in 2006 heard testimony from Donald 
Wright, General Counsel of the North Car­
olina State Board of Elections, who indi­
cated that most preclearance submissions 
“are routine matters that take only a few 
minutes to prepare using electronic sub­
mission formats” that are “readily avail­
able.” Policy Perspectives 313 (prepared 
statement of Donald M. Wright). Wright 
characterized the practical cost of pre­
clearance as “insignificant”—with the ex­
ception of redistricting submissions, which 
tend to be relatively infrequent—and he 
went on to explain that the “consensus” 
among election officials in North Carolina 
is that Section 5 imposes “a manageable 
burden providing benefits in excess of 
costs and time needed for submissions.” 
Id. Other witnesses similarly testified that 
the benefits of Section 5 far outweigh its 
costs, given that the preparation of a pre­
clearance submission is no more than “a 
small administrative act.” See Benefits 
and Costs 25 (testimony of Fred D. Gray); 
Continuing Need 64 (Earls Responses) 
(explaining that “the majority” of officials 
“did not find Section 5 requirements to be 
burdensome”).16

Indeed, in the Nw. Austin  litigation, 
six states covered in whole or in part by 
Section 4(b)—Louisiana, California, North

16. The Court recognizes that administrative 
costs of compliance are not the onlv costs 
imposed by Section 5. See. e g.. Bossier II, 528 
U S. at 336, 120 S.Ct. 866 (referring to “ the 
‘substan tia l’ federalism costs that the p r e ­
clearance procedure  already exacts”) (quoting 
Lopez. 525 U.S. at 282, 1 19 S.Ct. 693). Nev­
ertheless, an assessment of a remedial s ta t ­
ute 's  practical costs is relevant in determining 
w hether  it constitutes congruent and propor-

Carolina, Arizona, Mississippi, and New 
York—submitted an amicus brief in 
which they urged the Supreme Court not 
to strike down Section 5, arguing that 
“the benefits of Section 5 greatly exceed 
the minimal burdens that Section 5 may 
impose on States and their political sub­
divisions.” See Amicus Br. for North 
Carolina, Arizona, California, Louisiana, 
Mississippi and New York, Nw. Austin 
II, 2009 WL 815239, at *2, 17 (Mar. 25, 
2009). According to these states, Section 
5 does not constitute “an undue intrusion 
on state sovereignty,” because the admin­
istrative preclearance process is both “ex­
peditious and cost-effective,” and any 
burden that Section 5 imposes on covered 
jurisdictions is more than justified by 
Section 5’s “substantial benefits.” Id. at 
*1-2. Section 5’s minimal administrative 
burden—at least according to these six 
states—stands in stark contrast to the 
“heavy litigation burden” imposed by 
RFRA. See Boerne, 521 U.S. at 534, 117 
S.Ct. 2157.17

In addition to the evidence indicating 
that the practical cost of Section 5 compli­
ance is low, Congress in 2006 received 
evidence indicating that the practical cost 
of Section 2 litigation is high. As one 
expert explained during her 2006 testimo­
ny before the Senate Judiciary Committee, 
Section 2 litigation is both time-consuming 
and costly, as it requires attorneys “to 
assemble plaintiffs with standing, file a 
case and engage in discoveiy,” and “even 
on an expedited schedule, trial will be 
months and possibly a year after the new

tional legislation. See, e.g., Boerne, 521 U.S. 
at 534. 117 S.Ct. 2157 (describing the “su b ­
stantial costs RFRA exacts, both in practical 
terms of imposing a heavy litigation burden 
on the States and in terms of curtai ling their  
traditional  general regulatory pow er” ).

17. No sta tes have sought to join in Sheibv 
County's well-publicized challenge to Section



502 811 FEDERAL SUPPLEMENT, 2d SERIES

law is put in place.” Continuing Need 61 
(Earls Responses). Section 2 litigation 
places a heavy burden on minority plain­
tiffs, who not only must fund the litigation, 
but also must prove that particular voting 
practices are, in fact, discriminatory (un­
like Section 5, which shifts the burden to 
covered jurisdictions to prove that their 
voting changes are now-discriminatory). 
See Katzenbach, 383 U.S. at 328, 86 S.Ct. 
803. Moreover, even if minority plaintiffs 
are able to satisfy this evidentiary burden, 
Section 2—unlike Section 5—can only 
eradicate discriminatory voting practices 
after they have already been implemented 
to the detriment of minority voters. See 
Def.’s Mot. at 55-57.

For all these reasons, several witnesses 
who testified during the 2006 reauthoriza­
tion hearings speculated that in the ab­
sence of Section 5, Section 2 would prove 
insufficient to protect minority voting 
rights. See, eg., Benefits and Costs 80 
(responses of Armand Derfner to ques­
tions submitted by Senators Cornyn, Co­
burn, Leahy, Kennedy, and Schumer) (de­
scribing Section 2 cases as “expensive and 
time-consuming to litigate and hard to 
win,” and refuting the position that “Sec­
tion 5 is not needed because other litiga­
tion will do the job”); Continuing Need, 15 
(testimony of Pamela S. Karlan) (explain­
ing that Section 2 suits demand “huge 
amounts of resources” and that Section 2 
litigation is not “an adequate substitute in 
any way” for Section 5). The inadequacy 
of alternative remedies like Section 2 in 
combating continued voting discrimination 
by covered jurisdictions further confirms 
that Section 5 is “congruent and propor­
tional” to the problem that it targets. Cf. 
Garrett, 531 U.S. at 373, 121 S.Ct. 955 
(noting that the Voting Rights Act was 
only enacted after “traditional litigation 
had proved ineffective” in the course of 
describing why the Act reflects an appro­
priately “detailed but limited remedial 
scheme").

Perhaps the most significant way in 
which Section 5 remains limited, however, 
is through its application to only “those 
states with the most severe histories of 
discrimination” in voting. See Nw. Austin 
I, 573 K.Supp.2d at 274. Since it was first 
enacted in 1965, Section 5 has never ap­
plied nationwide, but has always targeted 
specific jurisdictions with a “long histoiy of 
racial disenfranchisement and dilution.” 
Continuing Need 103 (Karlan Responses); 
see also supra pp. 432, 438. Boeme and 
its progeny have repeatedly highlighted 
Section 5’s selective coverage in explaining 
why it constitutes appropriately tailored 
remedial legislation. See, e.g., Boeme, 521 
U.S. at 532-33, 117 S.Ct. 2157 (comparing 
RFRA’s nationwide application to the pro­
visions of the Voting Rights Act upheld in 
Katzenbach, which “were confined to those 
regions of the country where voting dis­
crimination had been most flagrant”); 
Garrett, 531 U.S. at 373, 121 S.Ct. 955 
(explaining that the Voting Rights Act, 
unlike Title I of the ADA, was targeted at 
“those areas of the Nation where abundant 
evidence of States’ systematic denial of 
[voting] rights was identified”); Fla. Pre­
paid, 527 U.S. at 647, 119 S.Ct. 2199 (con­
trasting the “various limits” contained in 
the Voting Rights Act with the absence of 
any such limits in the Patent and Plant 
Variety Protection Remedy Clarification 
Act). And like the other limiting features 
of Section 5 that were lauded by the Su­
preme Court in Boeme, the coverage for­
mula embodied in Section 4(b) remained 
unchanged w'hen Congress reauthorized 
Section 5 in 2006.

Given that Congress preseived all of 
Section 5’s traditional limiting features 
when it reauthorized Section 5 in 2006 
(including its selective geographic scope, 
its termination date, and its termination 
mechanism), after it heard testimony as to 
the low administrative costs imposed by



SHELBY COUNTY, ALA. v. HOLDER
C ilc a s 8 1 1  F .S u p p .2 d  424 (D .D .C. 2011)

503

preclearance and the inability of Section 2 
litigation to effectively prevent unconstitu­
tional voting discrimination, this Court 
sees no reason to question Congress’s con­
sidered judgment that Section 5 remains 
congruent and proportional to the problem 
that it targets.18 The question remains, 
however, whether the geographical limita­
tion of Section 5 through the coverage 
formula of Section 4(b) is itself vulnerable 
to challenge.

IV. The Constitutionality of Section 
4(b)

[12] Shelby County challenges Section 
4(b) on the ground that it unconstitutional­
ly differentiates between states in violation 
of “the principle of equal sovereignty” em­
bodied in the Tenth Amendment and Arti­
cle IV of the Constitution, and that, like 
Section 5, it does not constitute “ ‘appro­
priate’ enforcement legislation.” See Pl.’s 
Mot. at 35; Compl. 11 43(c). Since Katzen- 
bach, it is well-established that “[t]he doc­
trine of the equality of States .. . does not 
bar [the] approach” of selectively applying 
remedial legislation to only those “geo­
graphic areas where immediate action 
seem[s] necessary.” 383 U.S. at 328-29, 
86 S.Ct. 803. Nevertheless, the Supreme 
Court in Nw. Austin II made clear that “a 
departure from the fundamental principle 
of equal sovereignty requires a showing 
that a statute’s disparate geographic cov­
erage is sufficiently related to the problem 
that it targets.” See 129 S.Ct. at 2512. 
According to Shelby County, “the decades- 
old data fossilized in the coverage formula 
bear no relation whatsoever- to ‘current 
political conditions’ in those jurisdictions’ ” 
and “the ‘evils’ identified by Congress as a 
basis for reauthorizing Section 5 are not 
‘concentrated in the jurisdictions singled 
out for preclearance.’ ” Pl.’s Reply at 23

18. To the extent that K alzenboch 's rationality 
s tandard  rather  than B o e m e ’s congruence 
and proport ional ity test provides the proper

(quoting Nw. Austin II, 129 S.Ct. at 2512). 
Hence, Shelby County contends, Section 
4(b)’s coverage formula is no longer “suffi­
ciently related” to the problem that it tar­
gets.

The Supreme Court in Nw. Austin II 
did not explicate the precise nature of the 
showing needed to determine whether- Sec­
tion 5’s disparate geographic coverage re­
mains “sufficiently related” to the problem 
that it targets. Several justices during 
oral argument seemed to suggest that 
Congress might have to undertake a com­
parative analysis of unconstitutional voting 
discrimination in covered versus non-cov- 
ered jurisdictions and prove that the 
“States that are now covered .. . are 
markedly different from the noncovered 
jurisdictions” in order to justify Section 5’s 
continued selective application. Nw. Aus­
tin II Oral Arg. Tr. at 22 (Apr. 29, 2009) 
(Kennedy, J.); see also id. at 48 (Roberts, 
C.J., asking whether it is counsel’s “posi­
tion that today southerners are more likely 
to discriminate than northerners”?); id. at 
54 (Alito, J., asking counsel whether “there 
is no [greater] discrimination in voting in 
Virginia than in North Carolina or in Ten­
nessee or in Arkansas or in Ohio”?); id. at 
30 (Scalia, J., pressing counsel as to wheth­
er the legislative record shows only that 
section 5 is still “needed” in covered juris­
dictions, or also that Section 5 is needed 
more in covered jurisdictions than in “the 
rest of the country”). Significantly, how­
ever, the Supreme Court in Katzenbaeh 
did not conduct any detailed comparative 
analysis of voting discrimination in covered 
versus non-covered jurisdictions when it 
upheld Section 4(b) in 1966, nor did the 
Court in City of Rome undertake such a 
comparative analysis when it upheld Sec­
tion 5 (and its selective application) in 
1980.

mode of analysis, the Court finds for the same 
reasons that  the 2006 reauthorization of Sec­
tion 5 withstands scrutiny under  Katzenbaeh.



504 811 FEDERAL SUPPLEMENT, 2d SERIES

Hence, the Attorney General argues 
that it was sufficient for Congress in 2006 
to choose “to continue covering the juris­
dictions that it had already subjected to 
the preclearance requirement and that had 
not bailed out . . . based on findings that 
voting discrimination continued to exist in 
those specific jurisdictions and that Section 
5 preclearance remained neeessai'-y to pro­
tect minority voting rights there.” Def.’s 
Supp. Mem. [Docket Entry 75] at 3. No 
comparative showing as to the precise de­
gree of voting discrimination in covered 
versus non-covered jurisdictions was nec­
essary, the Attorney General contends, 
given that a set of jurisdictions was lawful­
ly subjected to preclearance in 1965—and 
in subsequent reauthorizations of the Vot­
ing Rights Act—and Congress learned 
that those same jurisdictions continued to 
warrant coverage in 2006. See id. Ulti­
mately, however, this issue need not be 
parsed further here, because Congress in 
2006 did examine both (1) whether voting 
discrimination persisted in the jurisdic­
tions traditionally covered by Section 4(b), 
and (2) whether voting discrimination re­
mained more prevalent in these jurisdic­
tions than in the jurisdictions not subject 
to preclearance under the Act. See Def.’s 
Supp. Mem. at 4.

This Court has already described in 
great detail the evidence in the legislative

19. This view would also seem to be supported 
by cases like Hibhs, in which the Suprem e 
Court upheld remedial  enforcement legisla­
tion with nationwide application without re ­
quiring a showing of unconstitutional conduct 
by every state to which the legislation applied. 
See, e.g., United States v. Blaine Cntv., Mon., 
363 F.3d 897, 906 (9th Cir.2004) (explaining 
that, based on Hibbs, “ it is c lear  that Con­
gress need not document evidence of constilu 
tional violations in every state to adopt a 
statute that has nat ionwide applicability"); 
but see Htbbs, 538 U.S. at 741-43, 123 S.Ct. 
1972 (Scalia, J., dissenting) (criticizing the 
majority's failure to “even at tempt to demon

record documenting the contemporary ex­
istence of unconstitutional voting discrimi­
nation by covered jurisdictions. In assess­
ing whether this evidence is sufficient to 
justify the continued application of Section 
5 to these jurisdictions, it is useful to start 
with Katzenbach—the only Supreme Court 
case in which the Court has outlined the 
precise nature of the showing needed to 
sustain Section 4(b). There, South Car­
olina argued—like Shelby County does 
here—that the coverage formula was 
“awkwardly designed in a number of re­
spects,” 383 U.S. at 329, 86 S.Ct. 803, and 
it criticized the formula for excluding “cer­
tain localities which do not employ voting 
tests and devices, but for which there is 
evidence of voting discrimination by other 
means,” id. at 330-31, 86 S.Ct. 803. But 
the Supreme Court dismissed these argu­
ments as “largely beside the point.” Id. at 
329, 86 S.Ct. 803. Congress was not re­
quired to create a perfect fit between the 
coverage fonnula and the states where 
voting discrimination was the most preva­
lent, the Court explained, “so long as the 
distinctions drawn have some basis in 
practical experience.” Id. at 331, 86 S.Ct. 
803 (emphasis added).

The Court in Katzenbach further sug­
gested that Congress was not even re­
quired to document evidence of unconstitu­
tional voting discrimination in each of the 
states covered by Section 4(b).|,J Accord-

strate that each one of the 50 States covered 
by [the challenged legislation] was in viola­
tion of the Fourteenth Amendment");  Lane, 
541 U.S. at  564, 124 S.Ct. 1978 (Scalia, J.. 
dissenting) (stating that he “would not 
abandon the requirement that Congress may 
impose § 5 prophylactic legislation only upon 
those par t icu lar  States in which there has 
been an identified historv of relevant constitu­
tional violat ions").  It certainly would seem 
odd to place a higher evidentiary burden on 
Congress when it seeks to tailor its remedies 
to those slates where  the remedies are most 
needed than when it chooses to forego anv



SHELBY COUNTY, ALA. v. HOLDER
C ite  as 81 I F .S upp .2d  424 (I).D .C . 2011)

505

ing to the Court, Congress began working 
“with reliable evidence of actual voting 
discrimination in a great majority of the 
States and political subdivisions affected 
by the new remedies of the Act,” and it 
created a formula that “was relevant to the 
problem of voting discrimination.” Id. at 
329, 86 S.Ct. 803 (emphasis added). That 
formula—based on the presence of a vot­
ing test or device in a particular jurisdic­
tion as well as low voter registration or 
turnout in that jurisdiction—was “rele­
vant” because of the “long history” of 
states using these tests and devices as a 
tool for perpetuating minority disenfran­
chisement. See id. at 330, 86 S.Ct. 803. 
Once Congress had constructed this “rele­
vant” formula—which was rational “in 
both practice and theory,” id.—Congress 
was “entitled to infer a significant danger 
of the evil in the few remaining States and 
political subdivisions covered by s[ectionJ 
4(b) of the Act,” id. at 329, 86 S.Ct. 803, 
“at least in the absence of proof that they 
have been free of substantial voting dis­
crimination in recent years,” id. at 330, 86 
S.Ct. 803.

Shelby County argues that the coverage 
formula is no longer “relevant” in 2006 
because it is based on voter registration 
and turnout data that “is now 38 years old 
and will be 59 years old when the 2006 
reauthorization expires,” PL’s Mot. at 37, 
and because the “statutory coverage fac­
tors are tied to the ability to cast a ballot” 
whereas Section 5 today is directed pri­
marily at so-called “second generation bar­
riers” to voting, and not at states’ attempt­
ed “interference with ballot access.” Pl.’s 
Supp. Mem. [Docket Entry 74] at 4; see 
also Pl.’s Mot. at 38. Certainly the contin­
ued reliance on arguably outdated data is 
fair cause for- concern. But ultimately

at tempt at tailoring, and  instead simplv e n ­
acts remedial  legislation on a nationwide
scale. On the other  hand, one  could argue
that a higher evidentiary showing is justified

Shelby County misses the point. As previ­
ously explained, see supra pp. 432, 438, the 
specific election years that have come to be 
used as “triggers” for coverage under Sec­
tion 4(b) were never selected because of 
something special that occurred in those 
years; instead, they were chosen as mere 
proxies for identifying those jurisdictions 
with established histories of discriminating 
against racial and language minority vot­
ers. See, e.g.} Continuing Need. 99 (Karian 
Responses); id. at 110 (Pildes Responses). 
Notwithstanding the passage of time since 
the coverage formula was last updated, 
“[t]he identity of the jurisdictions with that 
pervasive history and contemporary voting 
discrimination has not changed.” Id. at 
103 (Karian Responses). It is for- this 
reason that Chairman Sensenbrenner was 
so vigorously opposed to the Norwood 
Amendment’s proposed “updating” of Sec­
tion 4(b) in 2006, which would have made 
the coverage fo)*mula dependent on voter- 
turnout and registration data from the 
three most recent presidential elections. 
As Chairman Sensenbrenner explained, 
any “updating” of the coverage formula 
along these lines would eviscerate Section 
5, since the coverage formula “is not, and I 
repeat ‘not’ predicated on these [voter 
turnout and registration] statistics alone.” 
See 152 Cong. Rec. H5181. In 1965, states 
were only covered by Section 4(b) if “they 
applied discriminatory voting tests. And 
it was this aspect of the formula that 
brought these jurisdictions with the most 
serious histories of discrimination under 
Federal scrutiny,” Chairman Sensenbren­
ner explained. Id.

It is also this aspect of the coverage 
formula—that is, its link to jurisdictions 
with proven histories of racial discrimina­
tion in voting—that the Supreme Court

in all c i rcum stances  in which Congress de­
parts from the fundamental  principle  of
equal  sovereignty.' '  129 S.Ct. at 2512.



506 811 FEDERAL SUPPLEMENT, 2d SERIES

has repeatedly cited in noting that Section 
5 constitutes an appropriate congruent and 
proportional remedy. See, e.g., Roerne, 
521 IJ.S. at 533, 117 S.Ct. 2157 (contrasting 
Section 5’s limited application with 
RFRA’s nationwide scope, and noting that 
the preclearance requirement “was placed 
only on jurisdictions with a history of in­
tentional discrimination in voting”); Hibbs, 
538 U.S. at 741-43, 123 S.Ct. 1972 (Scalia, 
J  , dissenting) (suggesting that the Court 
in City oj Rome upheld “the most sweep­
ing provisions of the Voting Rights Act of 
1965 . . .  as a valid exercise of congression­
al power under § 2 of the Fifteenth 
Amendment” only because those provi­
sions “were restricted to States ‘with a 
demonstrable history of intentional racial 
discrimination in voting’ ”) (quoting City of 
Rome, 446 IJ.S. at 177, 100 S.Ct. 1548).

By preserving Section 4(b)’s existing 
coverage formula in 2006—under which ju­
risdictions are subject to preclearance if 
they maintained a voting test or device in 
1964, 1968, or 1972, and had voter turnout 
or registration below 50% in that year’s 
presidential election, see 42 U.S.C. 
§ 1973b(b)—Congress ensured that Sec­
tion 4(b) would continue to focus on those 
jurisdictions with the worst historical rec­
ords of voting discrimination. At the same 
time, Congress did not merely extend the 
preclearance requirement to these jurisdic­
tions as a “[p]unishment for long past 
sins,” Nw. Austin II, 129 S.Ct. at 2525 
(Thomas, J., concurring in judgment in 
part, dissenting in part). Rather, Con­
gress found substantial evidence of con­
temporary voting discrimination by the 
very same jurisdictions that had histories 
of unconstitutional conduct, which, it con­
cluded, justified their continued coverage 
under the Act. Finally, Congress found 
that any over- or under-inclusiveness in 
Section 4(b) could be remedied through 
use of the bailout provision in Section 4(a), 
and the bail-in provision in Section 3(c). 
See Niv. Austin I, 573 F.Supp.2d at 274.

To the extent that an additional show­
ing of a meaningful difference in voting 
discrimination between covered and non- 
covered jurisdictions was nonetheless re­
quired to demonstrate that the Act’s cov­
erage remains “sufficiently related to the 
problem that it targets,” the legislative 
record does contain such evidence. For 
example, the study of Section 2 litigation 
conducted by Ellen Katz and the Voting 
Rights Initiative at the University of 
Michigan Law School found that 64 of the 
114 reported Section 2 cases with out­
comes favorable to minority voters were 
filed in covered jurisdictions. See Impact 
and Effectiveness 974 (Katz Study). Al­
though a Section 2 violation does not re­
quire proof of unconstitutional discrimina­
tory intent, “many of the same factors 
required to make a finding of intentional 
discrimination” are the factors used to de- 
tennine whether there has been a viola­
tion of Section 2. See Def.’s Reply at 25; 
see also Impact and Effectiveness 986 
(Katz Study). Accordingly, the fact that 
more than 56% of the successful Section 2 
suits since 1982 have been filed in covered 
jurisdictions—even though those jurisdic­
tions contain only 39.2% of the eountiy’s 
African-American population, 31.8% of the 
Latino population, 25% of the Native 
American population, and less than 25% of 
the overall population—suggests that un­
constitutional discrimination remains more 
prevalent in covered than in non-covered 
jurisdictions. See Impact, and Effective­
ness 974; see also Introduction to Expir­
ing Provisions 43^4 (responses of Chan­
dler Davidson to questions submitted by 
Senators Cornyn and Leahy). The dis­
proportionate number of successful Sec­
tion 2 suits in covered jurisdictions is all 
the more remarkable considering that 
“Section 5 blocks and deters discrimina­
tion in covered jurisdictions, and, conse­
quently, one would expect to see fewer 
Section 2 cases there.” Def.-Int. Cun­



SHELBY COUNTY, ALA. v. HOLDER
C ite  as  f t! I F.Supp.2<l 424 (I».D.C. 2011)

507

ningham and Pierson’s Supp. Mem. [Dock­
et Entry 73] at 14.

There is also evidence in the legislative 
record indicating that five of the six Deep 
South states originally covered by Section 
5 (namely, Louisiana, Mississippi, Ala­
bama, Georgia, and South Carolina) ac­
counted for as many as 66% of all federal 
observer coverages since 1982. See 
H.R.Rep. No. 109—478, at 24-25. This 
would certainly seem to suggest that mi­
nority voter intimidation and harassment 
continues to pose a greater problem in 
covered than in non-covered states—and 
that it continues to pose a particularly 
severe problem in the Deep South. In 
addition, Congress received evidence in 
2006 suggesting that minority candidates 
are less likely to succeed in elections in 
covered than in non-covered jurisdictions, 
see Impact and Effectiveness 1008 (Katz 
Study) (explaining that the majority of 
Section 2 cases finding a lack of minority 
candidate success have arisen in covered 
jurisdictions), and that racial appeals in 
elections were more prevalent in covered 
than in non-covered jurisdictions, see id. at 
1003 (Katz Study) (noting that 63.2% of 
the Section 2 suits that found political 
campaigns to be characterized by racial 
appeals arose in covered jurisdictions). 
Finally, there is evidence in the record 
indicating that racially polarized voting is 
much more pronounced in covered than in 
non-covered jurisdictions. See Continuing 
Need 48 (Earls Responses). One study 
that assessed elections involving both mi­
nority and white candidates found that 
“virtually all such elections in covered ju­
risdictions had levels of white bloc voting 
at 70% or above while less than two thirds 
of such elections in non-covered jurisdic­
tions had white bloc voting at 70%.” Id. 
In other words, there was a “wide diver­
gence” in the severity of racial bloc voting 
in covered and non-covered jurisdictions, 
which reflects “an important empirical 
finding demonstrating that minorities have

less ability to participate equally in the 
political process in covered jurisdictions.” 
Id.

Hence, although the legislative record is 
primarily focused on the persistence of 
voting discrimination in covered jurisdic­
tions—rather than on the comparative lev­
els of voting discrimination in covered and 
non-covered jurisdictions—the record does 
contain several significant pieces of evi­
dence suggesting that the 21st centui-y 
problem of voting discrimination remains 
more prevalent in those jurisdictions that 
have historically been subject to the pre- 
clearance requirement. Like the three- 
judge court in Nw. Austin I, this Court 
declines to second-guess Congress’s 2006 
determination to preserve the traditional 
coverage formula—targeting those juris­
dictions with proven histories of racial dis­
crimination in voting—which was upheld in 
Katzenbach and “discussed with approval 
in the City of Boeme cases,” 573 
F.Supp.2d at 279, particularly given the 
2006 legislative record demonstrating a 
continued prevalence of voting discrimina­
tion in covered jurisdictions notwithstand­
ing the considerable deterrent effect of 
Section 5 in those jurisdictions over the 
preceding 25 years. Accordingly, this 
Court finds that Section 4(b)’s disparate 
geographic coverage remains “sufficiently 
related” to the problem that it targets.

CONCLUSION
On the eve of the 2006 reauthorization of 

Section 5, many academics wondered 
whether, given the effectiveness of Section 
5 in deterring unconstitutional conduct, 
Congress would be able to compile a suffi­
cient record of recent unconstitutional vot­
ing discrimination to support Section 5’s 
continued existence; in other words, had 
Section 5 become “a victim of its own 
success.” See, c.g., Samuel Issacharoff, Is 
Section 5 o f the Voting Rights Act a Vic­



508 811 FEDERAL SUPPLEMENT, 2d SERIES

tim of Its Own Success?, 104 Colum. L. 
R ev. 1710 (2004). One scholar character­
ized this phenomenon as the “Bull Connor 
is Dead” problem: given the fact that 
“[mjost of the original racist' elected offi­
cials are out of power,” and that “those 
who remain in power . . . have for the 
most part been deterred by preclearance,” 
would Congress be able to point toward “a 
record of recent state-driven discrimina­
tion . . .  supporting renewal” of Section 5 
in 2006? Hasen, 66 o h i o  s t . i ,..t. at 177. 
Based on the evidence contained in the 
15,000-page legislative record, this Court 
concludes that Congress did just that. 
Despite the effectiveness of Section 5 in 
deterring unconstitutional voting discrimi­
nation since 1965, Congress in 2006 found 
that voting discrimination by covered juris­
dictions had continued into the 21st centu­
ry, and that the protections of Section 5 
were still needed to safeguard racial and 
language minority voters. Under-standing 
the preeminent constitutional role of Con­
gress under- the Fifteenth Amendment to 
determine the legislation needed to enforce 
it, and the caution required of the federal 
courts when undertaking the “grave” and 
“delicate” responsibility of judging the 
constitutionality of such legislation—par­
ticularly where the right to vote and racial 
discrimination intersect—this Court de­
clines to overturn Congress’s carefully 
considered judgment.

For the foregoing reasons, the Court 
will deny Shelby County’s motion for sum­
mary judgment, and grant the motions for 
summary judgment filed by the Attorney 
General and the defendant-intervenors. A 
separate order has been filed on this date.

DISTRICT OF COLUMBIA, Plaintiff,

v.

Dianne NELSON, Guardian and next 
friend of C.P., a minor, 

Defendant.

Civ. Action No. 10-456 (EGS).

United States District Court, 
District of Columbia.

Sept. 21, 2011.
Background: District of Columbia
brought action under Individuals with Dis­
abilities Education Act (IDEA) challenging 
administrative decision requiring it to pay 
for student’s full-time special education 
day school placement in private institution. 
Parties filed cross-motions for summary 
judgment.
Holdings: The District Court, Emmet G. 
Sullivan, J., held that:
(1) IDEA required that representative of 

local educational agency be member of 
team formulating student’s individual 
education plan (IEP);

(2) IDEA did not require agency to ensure 
that sufficient education and supports 
be provided for student “to permit her 
to graduate”;

(3) provision of hearing officer’s order pro­
hibiting agency from objecting to ser­
vices provided to student by private 
institution violated IDEA;

(4) provision of order requiring IEP team 
to change student’s location to compa­
rable full-time special education day 
school if he was not making sufficient 
progress unduly restricted agency; and

(5) agency had no obligation to provide 
written notice to private institution be­
fore making changes in her placement.

District’s motion granted, and matter re­
manded to hearing officer.







848 679 FEDERAL REPORTER, 3d SERIES

SHELBY COUNTY, ALABAMA, 
Appellant

v.

Eric H. HOLDER, Jr., in his Official 
Capacity as Attorney General of the 

United States, et al., Appellees.
No. 11-5256.

United States Court of Appeals, 
District of Columbia Circuit.

Argued Jan. 19, 2012.
Decided May 18, 2012. 

Background: County brought declaratory 
judgment action against United States At­
torney General, seeking determination that 
Voting Rights Act’s preclearance require­
ment, which required that covered juris­
dictions demonstrate proposed voting law 
changes were not diseriminatoiy, was un­
constitutional. United States and civil 
rights organization intervened. After inter- 
venors’ motion for additional discovery was 
denied, 270 F.R.D. 16, parties cross-moved 
for summary judgment. The United States 
District Court for the Distinct of Columbia, 
John D. Bates, J., 811 F.Supp.2d 424, en­
tered summaiy judgment for Attorney 
General. County appealed.
Holdings: The Court of Appeals, Tatel, 
Circuit Judge, held that:
(1) Congress did not exceed its enumerat­

ed powers under Fifteenth Amend­
ment when, in 2006, it reauthorized 
preclearance requirement of Voting 
Rights Act, and

(2) disparate geographic coverage of pre­
clearance requirement was sufficiently

. related to targeted problem of discrim­
ination in voting, as required for validi­
ty of preclearance requirement. 

Affirmed.

Williams, Senior Circuit Judge, filed dis­
senting opinion.

1. Elections ©=12(9.1)
Voting Rights Act of 1965 enables in­

dividuals to bring suit against any state or 
jurisdiction to challenge voting practices 
that have a discriminatory purpose or re­
sult. Voting Rights Act of 1965, § 2(a), 42 
U.S.C.A. § 1973(a).

2. Elections ©=12(1, 8)
Reaching beyond case-by-case litiga­

tion and applying only in certain covered 
jurisdictions, the Voting Rights Act pre­
scribes remedies that go into effect with­
out any need for prior adjudication and 
that suspend all changes in state election 
procedure until they are submitted to and 
approved by a three-judge federal district 
court in Washington, D.C., or the United 
States Attorney General. Voting Rights 
Act of 1965, § 5(a), 42 U.S.C.A. § 1973c(a).

3. Elections ©=12(8)
Voting Rights Act, by requiring cer­

tain jurisdictions to obtain preclearance for 
changes in voting laws or procedures, 
shifts the advantage of time and inertia 
from the perpetrators of the evil of dis­
criminatory voting laws to its victim by 
placing the burden on covered jurisdictions 
to show their voting changes are nondis- 
criminatory before those changes can be 
put into effect, and thus, the Act pre­
empts the most powerful tools of black 
disenfranchisement. Voting Rights Act of 
1965, § 5(a), 42 U.S.C.A. S 1973c(a).

4. Federal Courts ©=776
Court of Appeals’ review of the dis­

trict court’s decision to grant summary 
judgment is de novo. Fed.Rules Civ.Proc. 
Rule 56, 28 U.S.C.A.

5. Elections ©=12(8)
Past success alone is not adequate 

justification to retain, in the face of a 
constitutional challenge, the Voting Act’s 
requirement for certain jurisdictions to ob­
tain preclearance for changes in voting



SHELBY COUNTY, ALA. v. HOLDER
C ite as 679 F.3t1 848 (D C. C ir. 2012)

849

laws or procedures. Voting Rights Act of 
19C5, § 5(a), 42 U.S.C.A. § 1973c(a).

6. Elections <3=9
Voting Rights Act’s requirement for 

certain jurisdictions to obtain preclearance 
for changes in voting laws imposes current 
burdens, and court must determine wheth­
er those burdens are justified by cuirent 
needs when deciding a challenge to the 
Act’s constitutionality. Voting Rights Act 
of 1965, § 5(a), 42 U.S.C.A. § 1973c(a).

7. Elections ©=>9
When determining a constitutional 

challenge to the Voting Rights Act’s re­
quirement for certain jurisdictions to ob­
tain preclearance for changes in voting 
law's or procedures, court must ask wheth­
er the coverage preclearance require­
ment’s disparate geographic coverage is 
sufficiently related to the problem that it 
targets. Voting Rights Act of 1965, 
§§ 2(b), 3(c), 4(a, b), 5(a), 42 U.S.C.A. 
§§ 1973(b), 1973a(e), 1973b(a, b), 1973c(a).

8. Constitutional Law <3=1466, 1482
When Congress seeks under the 

Fourteenth and Fifteenth Amendments to 
combat racial discrimination in voting, pro­
tecting both the right to be free from 
discrimination based on race and the right 
to be free from discrimination in voting, 
two rights subject to heightened scrutiny, 
it acts at the apex of its power. U.S.C.A. 
Const.Amends. 14, 15.

9. Constitutional Law <3=1482 
Elections ©=>12(8)

Given the significant, burdens that the 
Voting Rights Act’s preclearance require­
ment places on covered jurisdictions to 
demonstrate that a proposed voting law 
change is not discriminatory, court, in or­
der to deteiTnine whether the preclearance 
requirement remains a congruent and pro­
portional means of enforcing the Fifteenth 
Amendment, is obligated to undertake a 
searching review of the record. U.S.C.A.

Const.Amend. 15; Voting Rights Act of 
1965, § 5(a), 42 U.S.C.A. § 1973c(a).

10. Statutes ©=>61
Congress's laws are entitled to a pre­

sumption of validity.

11. Constitutional Law <3=1102, 1482,
4850

When Congress acts pursuant to its 
enforcement authority under the Recon­
struction Amendments, its judgments 
about what legislation is needed are enti­
tled to much deference. U.S.C.A. Const. 
Amends. 13-15.

12. Constitutional Law <̂ >1482
Elections <3=>9
Current burdens imposed by preclear­

ance requirement of Voting Rights Act, 
which prohibited certain covered jurisdic­
tions from making any change in voting 
procedures without first demonstrating to 
Attorney-General or a three-judge distinct 
court in Washington that the change nei­
ther had purpose nor would have effect of 
denying or abridging light to vote on ac­
count of race or color, were justified by 
current needs, for purposes of determining 
whether Congress exceeded its enumerat­
ed powers under Fifteenth Amendment 
when it reauthorized that requirement, 
given numerous modern examples of racial 
discrimination, and given facts that volume 
of preclearance litigation remained high 
and that 300 to 600 election observers 
were still dispatched annually to covered 
jurisdictions. U.S.C.A. ConsLAmend. 15; 
Voting Rights Act of 1965, §§ 2(b), 5(a), 42 
U.S.C.A. §§ 1973(b), 1973c(a).

13. Constitutional Law ©=>1482
Elections ©=9
Voting Rights Act’s preclearance rem­

edy, w'hich requires covered jurisdictions 
to demonstrate that a proposed voting law 
change is not discriminatoiy, may qualify 
as a congivient and proportional means of



850 679 FEDERAL REPORTER, ltd SERIES

enforcing the Fifteenth Amendment even 
where the preclearance remedy does not 
address a coordinated campaign of dis­
crimination intended to circumvent the re­
medial effects of direct enforcement of Fif­
teenth Amendment voting rights. 
U.S.C.A. Const.Amend. 15; Voting Rights 
Act of 1965, § 5(a), 42 U.S.C.A. § 1973c(a).

14. Constitutional Law ©=1482
Elections ©=9
Voting Rights Act’s preclearance rem­

edy, which requires covered jurisdictions 
to demonstrate that a proposed voting law 
change is not discriminatory, is a con­
gruent and proportional means of enforc­
ing the Fifteenth Amendment if a pattern 
of racial discrimination in voting so serious 
and widespread that case-by-case litigation 
is inadequate. U.S.C.A. Const.Amcnd. 15; 
Voting Rights Act of 1965, § 5(a), 42 
U.S.C.A. § 1973c(a).

15. Constitutional Law ©=1482
Elections ©=9

In determining whether preclearance 
requirement in Voting Rights Act of 1965, 
which requires covered jurisdictions to 
demonstrate that a proposed voting law 
change is not discriminatory, is a con­
gruent and proportional means of enforc­
ing Fifteenth Amendment, question is not 
whether legislative record reflects kind of 
ingenious defiance that existed prior to 
Act, but whether Congress has document­
ed sufficiently widespread and persistent 
racial discrimination in voting in covered 
jurisdictions to justify its conclusion that 
case-by-case litigation remains inadequate; 
if Congress has so demonstrated, then re­
quirement’s substantial federalism costs 
remain justified because preclearance is 
still needed to remedy continuing viola­
tions of Fifteenth Amendment. U.S.C.A. 
Const.Amend. 15; Voting Rights Act of 
1965, § 5(a), 42 U.S.C.A. § 1973c(a).

16. Constitutional Law ©=1466 
Fourteenth Amendment prohibits vote

dilution intended invidiously to minimize or 
cancel out the voting potential of racial or 
ethnic minorities. U.S.C.A. Const.Amend.
14.

17. Constitutional Law ©=1482 
Elections ©=9
Cour t may consider evidence of un­

constitutional vote dilution in evaluating 
whether the Voting Rights Act’s preclear­
ance requirement, which requires covered 
jurisdictions to demonstrate that a pro­
posed voting law change is not discrimina­
tory, is valid as a congruent and propor­
tional means of enforcing the Fifteenth 
Amendment. U.S.C.A. Const.Amend. 15; 
Voting Rights Act of 1965, § 5(a), 42 
U.S.C.A. § 1973c(a).

18. Constitutional Law ©=1482 
Elections ©=9
When determining whether- the Voting 

Rights Act’s preclearance requirement, 
which requires covered jurisdictions to 
demonstrate that a proposed voting law 
change is not discriminatory, is a con­
gruent and proportional means of enforc­
ing the Fifteenth Amendment, the record 
must contain evidence of a pattern of con­
stitutional violations, and voting changes 
violate the constitution only if motivated 
by discriminatory animus. U.S.C.A. 
Const.Amend. 15; Voting Rights Act of 
1965, § 5(a), 42 U.S.C.A. § 1973c(a).

19. Constitutional Law ©=1482 
Congress is entitled to rely upon the

United States Attorney General’s consid­
ered judgment when Congress prescribes 
civil remedies for voting discrimination un­
der the Fifteenth Amendment. U.S.C.A. 
Const.Amend. 15.

20. Elections ©=12(1)
Although the Constitution prohibits 

only those voting laws motivated by dis­



SHELBY COUNTY, ALA. v. HOLDER
C ile as 679 F .3d 848 (D C. C ir. 2012)

851

criminatory intent, the Voting Rights Act 
prohibits all voting laws for which, based 
on the totality of circumstances, it is 
shown that the political processes leading 
to nomination or election in the State or 
political subdivision are not equally open to 
participation by members of a protected 
class. U.S.C.A. Const.Amend. 15; Voting 
Rights Act of 1965, § 2(b), 42 U.S.C.A. 
§ 1973(b).

21. Elections @=12(1)
The “results test” used to deteimine 

whether the Voting Rights Act is violated 
because the political processes leading to 
nomination or election in a State or politi­
cal subdivision are not equally open to 
participation by members of a protected 
class requires consideration of factors very 
similar to those used to establish unconsti­
tutional discriminator}' intent based on cir­
cumstantial evidence. U.S.C.A. Const. 
Amend. 15; Voting Rights Act of 1965, 
S 2(b), 42 U.S.C.A. § 1973(b).

S ee  pub l ica t ion  W o rd s  a n d  P h ra s ­
es for o th e r  jud ic ia l  co n s t ru c t io n s  
an d  definitions.

22. Constitutional Law @=976
Courts will avoid deciding constitu­

tional questions if the litigation can be 
resolved on nar rower grounds.

23. Constitutional Law @=1482 
Elections @=9
Voting Rights Act’s preclearance re­

quirement, which requires covered juris­
dictions to demonstrate that a proposed 
voting law change is not discriminatory, 
may not stand as a congruent and propor­
tional means of enforcing the Fifteenth 
Amendment based on claims of deterrence 
alone, nor can deterrence be used in some 
hypothetical case to justify renewal of the 
preclearance requirement “to the crack of 
doom.” U.S.C.A. Const.Amend. 15; Voting 
Rights Act of 1965, § 5(a), 42 U.S.C.A. 
§ 1973c(a).

24. Constitutional Law @=2480
Insofar as Congress’s conclusions rest

on predictive judgments, court must, in 
reviewing the constitutionality of a statute, 
apply a standard of review even more def­
erential than accorded to judgments of an 
administrative agency.

25. Constitutional Law @=1482
Elections @=9
Disparate geographic coverage of Vot­

ing Rights Act’s preclearance requirement, 
which required covered jurisdictions to 
demonstrate proposed voting law changes 
were not discriminatoi-y, was sufficiently 
related to targeted problem of discrimina­
tion in voting, as required for Congress’s 
reauthorization of requirement to be valid 
under Fifteenth Amendment; covered ju­
risdictions had disproportionately high 
rates of successful individual litigation un­
der Act, despite deterrent and blocking 
effect of preclearance requirements, and 
Act’s bail-in and bailout provisions ensured 
only jurisdictions with worst records were 
subject to preelearance, by subjecting non- 
historically covered jurisdictions to pre­
clearance if they discriminated in voting, 
and by allowing jurisdictions with clean 
voting records to escape preclearance. 
U.S.C.A. Const.Amend. 15; Voting Rights 
Act of 1965, §§ 2(b), 3(c), 4(a, b), 5(a), 42 
U.S.C.A. §§ 1973(b), 1973a(c), 1973b(a, b), 
1973c(a).

26. Statutes @=4
Congress normally is not required to 

make formal findings in order to legislate.

27. Elections @=12(8)
Jurisdictions originally covered by the 

Voting Rights Act’s preclearance require­
ment because of their histories of discrimi­
nation can “bailout,” or escape preclear­
ance, which requires covered jurisdictions 
to demonstrate that a proposed voting law 
change is not discriminatory, by demon­
strating a clean record on voting lights for



852 679 FEDERAL REPORTER, :td SERIES

ten years in a row. Voting Rights Act of 
1965, §§ 4(a)(1), 5(a), 42 U.S.C.A.
§§ 1973b(a)(l), 1973c(a).

See pub l ica t ion  W ords  a n d  P h r a s ­
es for o th e r  jud ic ia l  c o n s t ru c t io n s  
an d  definitions.

28. Constitutional Law <3=>996
Court may not strike down an Act of 

Congress except upon a clear showing of 
unconstitutionality.

29. Federal Courts <3=714
Where counsel has made no attempt 

to address issue, Court of Appeals will not 
remedy the defect, especially where impor­
tant questions of far-reaching significance 
are involved.

Appeal from the United States District 
Court for the District of Columbia (No. 
l:10-cv-00651).

Bert W. Rein argued the cause for ap­
pellant. With him on the briefs were Wil­
liam S. Consovoy, Thomas R. McCarthy, 
and Brendan J. Morrissey.

John C. Neiman Jr., Solicitor General, 
Office of the Attorney General for the 
State of Alabama, and Robert D. Tam- 
bling, Assistant Attorney General, were on 
the brief for amicus curiae State of Ala­
bama in support of appellant.

Thomas C. Home, Attorney General, Of­
fice of the Attorney General for the State 
of .Arizona, David R. Cole, Solicitor Gener­
al, Michele L. Forney and James E. Bar­
ton II, Assistant Attorneys General, and 
Samuel S. Olens, Attorney General, Office 
of the Attorney General of the State of 
Georgia, were on the brief for amici curiae 
States of Arizona and Georgia.

Steven J. Lechner was on the brief as 
amicus curiae Mountain States Legal 
Foundation in support of appellant.

Sarah E. Harrington, Attorney, U.S. De­
partment of Justice, argued the cause for 
appellee. With her on the brief were Ron­
ald C. Machen Jr., U.S. Attorney, and

Diana K. Flynn and Linda F. Thome, At­
torneys.

Eric T. Schneiderman, Attorney Gener­
al, Office of the Attorney General for the 
State of New York, Barbara D. Under­
wood, Solicitor General. Jim Hood, Attor­
ney General, Office of the Attorney Gener­
al for the State of Mississippi, and Kamala 
D. Harris, Attorney General, Office of the 
Attorney General for the State of Califor­
nia, were on the brief for amici curiae New 
York, et ah, in support of appellees.

John Payton, Debo P. Adegbile, Elise C. 
Boddie, Ryan P. Haygood, Dale E. Ho, 
Natasha M. Korgaonkar, Arthur B. Spit- 
zer, Jon M. Greenbaum, and John M. Non­
na were on the brief for intei"venors-appel- 
lees Earl Cunningham, et ah, in support of 
appellees.

Deborah N. Archer and Aderson B. 
Francois were on the brief for amicus curi­
ae The New York Law School Racial Jus­
tice Project in support of appellee.

Elizabeth B. Wydra was on the brief for 
amicus curiae Constitutional Accountabili­
ty Center in support of appellees.

Before: TATEL and GRIFFITH,
Circuit Judges, and WILLIAMS, Senior 
Circuit Judge.

Opinion for the Court filed by Circuit 
Judge TATEL.

Dissenting opinion filed by Senior 
Circuit Judge WILLIAMS.

TATEL, Circuit Judge:
In Northwest Austin Municipal Utility 

District No. One v. Holder, 557 U.S. 193, 
129 S.Ct. 2504, 174 L.Ed.2d 140 (2009), the 
Supreme Court raised serious questions 
about the continued constitutionality of 
section 5 of the Voting Rights Act of 1965. 
Section 5 prohibits certain “covered juris­
dictions” from making any change in their 
voting procedures without first demon­



SHELBY COUNTY, ALA. v. HOLDER
C ite  as 679 F .3d 848 (!).C . C ir. 2012)

853

strating to either the Attorney General or 
a three-judge district court in Washington 
that the change “neither has the purpose 
nor will have the effect of denying or 
abridging the right to vote on account of 
race or color.” 42 U.S.C. § 1973c(a). The 
Supreme Court warned that the burdens 
imposed by section 5 may no longer be 
justified by current needs and that its 
geographic coverage may no longer suffi­
ciently relate to the problem it targets. 
Although the Court had no occasion to 
resolve these questions, they are now 
squarely before us. Shelby County, Ala­
bama, a covered jurisdiction, contends that 
when Congress reauthorized section 5 in 
200(1, it exceeded its enumerated powers. 
The district court disagreed and granted 
summaiy judgment for the Attorney Gen­
eral. For the reasons set forth in this 
opinion, we affirm.

I.

The Framers of our Constitution sought 
to construct a federal government power­
ful enough to function effectively yet limit­
ed enough to preserve the hard-earned 
liberty fought for in the War of Indepen­
dence. They feared not state government, 
but centralized national government, long 
the hallmark of Old World monarchies. 
As a result, “[t]he powers delegated by the 
. . .  Constitution to the federal govern­
ment, are few and defined,” while “[t]hose 
which are to remain in the State govern­
ments are numerous and indefinite.” The 
Federalist No. 45 (James Madison). Close 
to the people, state governments would 
protect their liberties.

But the experience of the nascent Re­
public, divided by slaveiy, taught that 
states too could threaten individual liberty. 
So after the Civil War, the Reconstruction 
Amendments were added to the Constitu­
tion to limit state power. Adopted in 1865, 
the Thirteenth Amendment prohibited in­
voluntary servitude. Adopted three years 
later, the Fourteenth Amendment prohib­

ited any state from “depriv[ing] any per­
son of life, liberty, or property, without 
due process of law” or “denying] to any 
person within its jurisdiction the equal 
protection of the laws,” and granted Con­
gress “power to enforce” its provisions “by 
appropriate legislation.” U.S. Const, 
amend. XIV. Finally, the Fifteenth 
Amendment declared that “(t]he right of 
citizens . . .  to vote shall not be denied or 
abridged by the United States or by any 
State on account of race, color, or previous 
condition of servitude” and vested Con­
gress with “power to enforce this article 
by appropriate legislation.” U.S. Const, 
amend. XV.

Following Reconstinction, however, “the 
blight of racial discrimination in voting . . . 
infected the electoral process in parts of 
our country for nearly a centuiy.” South 
Carolina v. Katzenbach, 383 U.S. 301, 308, 
86 S.Ct. 803, 15 L.Ed.2d 769 (1966). As 
early as 1890, “the States of Alabama, 
Georgia, Louisiana, Mississippi, North 
Carolina, South Carolina, and Virginia” be­
gan employing tests and devices “specifi­
cally designed to prevent Negroes from 
voting.” Id. at 310, 86 S.Ct. 803. Among 
the most notorious devices were poll taxes, 
literacy tests, grandfather clauses, and 
property qualifications. See Shelby Cnty. 
v. Holder, 811 F.Supp.2d 424, 428 (D.D.C. 
2011); see also Katzenbach, 383 U.S. at 
310-11, 86 S.Ct. 803. Also widely em­
ployed, both immediately following Recon­
struction and again in the mid-twentieth 
centuiy, were “laws designed to dilute 
black voting strength,” including laws that 
“gerrymandered election districts, institut­
ed at-large elections, annexed or dean- 
nexed land . .. and required huge bonds of 
officeholders.” Shelby Cnty., 811 
F.Supp.2d at 429 (internal quotation marks 
omitted).

The courts and Congress eventually re­
sponded. The Supreme Court struck



854 679 FEDERAL REPORTER, 3d SERIES

down grandfather clauses, Guinn v. Unit­
ed States, 238 U.S. 347, 35 S.Ct. 926, 59 
L.Ed. 1340 (1915), and white primaries, 
Smith v. Allwright, 321 U.S. 649, 64 S.Ct. 
757, 88 L.Ed. 987 (1944). Congress “en- 
act[ed] civil rights legislation in 1957, 1960, 
and 1964, which sought to ‘facilitat[e] case- 
by-case litigation against voting discrimi­
nation.’” Shelby Cnty., 811 F.Supp.2d at 
430 (alteration in original) (quoting Kat­
zenbach, 383 U.S. at 313, 86 S.Ct. 803). 
But Congress soon determined that such 
measures were inadequate: case-by-ease 
litigation, in addition to being expensive, 
was slow—slow to come to a result and 
slow to respond once a state switched from 
one discriminatory device to the next—and 
thus had “done little to cure the problem 
of voting discrimination.” Katzenbach, 383 
U.S. at 313, 86 S.Ct. 803. Determined to 
“rid the country of racial discrimination in 
voting,” id. at 315, 86 S.Ct. 803, Congress 
passed the Voting Rights Act of 1965.

[1] Unlike prior legislation, the 1965 
Act combined a pennanent, case-by-case 
enforcement mechanism with a set of more 
stringent, temporary remedies designed to 
target those areas of the country where 
racial discrimination in voting was concen­
trated. Section 2, the Act’s main perma­
nent provision, forbids any “standard, 
practice, or procedure” that “results in a 
denial or abridgment of the right of any 
citizen of the United States to vote on 
account of race or color.” 42 U.S.C.
§ 1973(a). Applicable nationwide, section 
2 enables individuals to bring suit against 
any state or jurisdiction to challenge vot­
ing practices that have a discriminatory 
purpose or result. See Thornburg v. Gin- 
gles, 478 U.S. 30, 35, 106 S.Ct. 2752, 92 
L.Ed.-2d 25 (1986).

[2] Reaching beyond case-by-case liti­
gation and applying only in certain “cov­
ered jurisdictions,” section 5—the focus of 
this litigation—“prescribes remedies . . .  
which go into effect without any need for

prior adjudication.” Katzenbach, 383 U.S. 
at 327-28, 86 S.Ct. 803. Section 5 sus­
pends “all changes in state election proce­
dure until they [arej submitted to and 
approved by a three-judge Federal Dis­
trict Court in Washington, D.C., or the 
Attorney General.” Nw. Austin, 129 S.Ct. 
at 2509. A jurisdiction seeking to change 
its voting laws or procedures must either 
submit the change to the Attorney General 
or seek preclearance directly from the 
three-judge court. If it opts for the for­
mer and if the Attorney General lodges no 
objection within sixty days, the proposed 
law can take effect. 42 U.S.C. § 1973c(a). 
But if the Attorney General lodges an 
objection, the submitting jurisdiction may 
either request reconsideration, 28 C.F.R. 
§ 51.45(a), or seek a de novo determina­
tion from the three-judge district court. 
42 U.S.C. § 1973c(a). Either way, pre­
clearance may be granted only if the juris­
diction demonstrates that the proposed 
change to its voting law neither “has the 
purpose nor .. . the effect of denying or 
abridging the right to vote on account of 
race or color.” Id.

[3] Prior to section 5’s enactment, 
states could stay ahead of plaintiffs and 
courts “ ‘by passing new discriminatoiy 
voting laws as soon as the old ones had 
been struck down.’ ” Beer v. United States, 
425 U.S. 130, 140, 96 S.Ct. 1357, 47 
L.Ed.2d 629 (1976) (quoting H.R.Rep. No. 
94-196, at 57-58 (1975)). But section 5 
“shiftfed] the advantage of time and inertia 
from the peipetrators of the evil to its 
victim.” Katzenbach, 383 U.S. at 328, 86 
S.Ct. 803. It did so by placing “the bur­
den on covered jurisdictions to show their 
voting changes are nondiscriminatory be­
fore those changes can be put into effect.” 
Shelby Cnty., 811 F.Supp.2d at 431. Sec­
tion 5 thus “pre-empted the most powerful 
tools of black disenfranchisement,” Nw. 
Austin, 129 S.Ct. at 2509, resulting in “un-



SHELBY COUNTY, ALA. v. HOLDER
Cicc as 679 F.3d 848 (D C. C ir. 2012)

855

deniable” improvements in the protection 
of minority voting rights, id. at 2511.

Section 4(b) contains a formula that, as 
originally enacted, applied section 5’s pre­
clearance requirements to 'any state or 
political subdivision of a state that “main­
tained a voting test or device as of No­
vember 1, 1964, and had less than 50% 
voter registration or turnout in the 1964 
presidential election.” Shelby Only., 811 
F.Supp.2d at 432 (citing Voting Rights 
Act of 1965, Pub.L. No. 89-110, § 4(b), 79 
Stat. 437, 438 (“1965 Act”)). Congress 
chose these criteria carefully. It knew 
precisely which states it sought to cover 
and crafted the criteria to capture those 
jurisdictions. Id. (citing testimony before 
Congress in 2005-2006). Unsurprisingly, 
then, the jurisdictions originally covered 
in their entirety, Alabama, Georgia, Loui­
siana, Mississippi, South Carolina, and 
Virginia, “were those southern states with 
the worst historical records of racial dis­
crimination in voting.” Id.

Because section 4(b)’s formula could be 
both over- and underinclusive, Congress 
incorporated two procedures for adjusting 
coverage over time. First, as it existed in 
1965, section 4(a) allowed jurisdictions to 
earn exemption from coverage by obtain­
ing from a three-judge district court a 
declaratory judgment that in the previous 
five years (i.e., before they became subject 
to the Act) they had used no test or device 
“for the purpose or with the effect of 
denying or abridging the right to vote on 
account of race or color.” 1965 Act $ 4(a). 
This “bailout” provision, as subsequently 
amended, addresses potential overinclu­
siveness, allowing jurisdictions with clean 
records to terminate their section 5 pre­
clearance obligations. Second, section 3(c) 
authorizes federal courts to require pre­
clearance by any non-covered state or po­
litical subdivision found to have violated 
the Fourteenth or Fifteenth Amendments. 
42 U.S.C. § 1973a(c). Specifically, courts

presiding over voting discrimination suits 
may “retain jurisdiction for such period as 
[they] may deem appropriate” and order 
that during that time no voting change 
take effect unless either approved by the 
court or unopposed by the Attorney Gen­
eral. Id. This judicial “bail-in” provision 
addresses the formula’s potential underin­
clusiveness.

As originally enacted in 1965, section 5 
was to remain in effect for five years. In 
South Carolina v. Katzenbach, the Su­
preme Court sustained the constitutionali­
ty of section 5, holding that its provisions 
“are a valid means for carrying out the 
commands of the Fifteenth Amendment.” 
383 U.S. at 337, 86 S.Ct. 803. Congress 
subsequently renewed the temporaiy pro­
visions, including sections 4(b) and 5, in 
1970 (for five years), then in 1975 (for 
seven years), and again in 1982 (for twen­
ty-five years). In each version, “[t]he cov­
erage formula [in section 4(b) ] remained 
the same, based on the use of voting- 
eligibility tests [or devices] and the rate of 
registration and turnout among all voters, 
but the pertinent dates for assessing these 
criteria moved from 1964 to include 1968 
and eventually 1972.” Nw. Austin, 129 
S.Ct. at 2510. In 1975 Congress made one 
significant change to section 4(b)’s scope: 
it amended the definition of “test or de­
vice” to include the practice of providing 
only English-language voting materials in 
jurisdictions with significant non-English- 
speaking populations. Act of Aug. 6, 1975, 
Pub.L. No. 94-73, § 203, 89 Stat. 400, 401- 
02 (codified at 42 U.S.C. § 1973b(f)(3)). 
Although not altering the basic coverage 
formula, this change expanded section 
4(b)’s scope to encompass jurisdictions 
with records of voting discrimination 
against “language minorities.” See Bris­
coe v. Bell, 432 U.S. 404, 405, 97 S.Ct. 
2428, 53 L.Ed.2d 439 (1977). The Su­
preme Court sustained the constitutionali­
ty of each extension, respectively, in Geor­



856 679 FEDERAL REPORTER, 3d SERIES

gia v. United States, 411 U.S. 526, 93 S.Ct. 
1702, 36 L.Ed.2d 472 (1973), City o f Rome 
v. United States, 446 U.S. 156, 100 S.Ct. 
1548, 64 L.Ed.2d 119 (1980), and Lopez v. 
Monterey County, 525 U.S. 266, 119 S.Ct. 
693, 142 L.Ed.2d 728 (1999).

Significantly for the issue before us, the 
1982 version of the Voting Rights Act 
made bailout substantially more permis­
sive. Prior to 1982, bailout was extremely 
limited: no jurisdiction could bail out if it 
had used discriminatory voting tests or 
practices when it first became subject to 
section 5, even if it had since eliminated 
those practices. Shelby Cnty., 811 
F.Supp.2d at 434. By contrast, after 1982 
the Act allowed bailout by any jurisdiction 
with a “clean” voting rights record over 
the previous ten years. Id. T he-1982 
reauthorization also pennitted a greater 
number of jurisdictions to seek bailout. 
Previously, “only covered states (such as 
Alabama) or separately-covered political 
subdivisions (such as individual North Car­
olina counties) were eligible to seek bail­
out.” Id. After 1982, political subdivisions 
within a covered state could bail out even 
if the state as a whole was ineligible. Id.

Setting the stage for this litigation, Con­
gress extended the Voting Rights Act for 
another twenty-five years in 2006. See 
Fannie Lou Hamer, Rosa Parks, and Cor- 
etta Scott King Voting Rights Act Reau­
thorization and Amendments Act of 2006, 
Pub.L. No. 109-246, 120 Stat. 577 (“2006 
Act”). In doing so, it acted on the basis of 
a legislative record “over 15,000 pages in 
length, and including] statistics, findings 
by courts and the Justice Department, and 
first-hand accounts of discrimination.” 
Shelby Cnty., 811 F.Supp.2d at 435 (inter­
nal quotation marks omitted). Congress 
also amended section 5 to overrate the 
Supreme Court’s decisions in Georgia v. 
Ashcroft, 539 U.S. 461, 479-80, 123 S.Ct. 
2498, 156 L.Ed.2d 428 (2003) (which held 
that “any assessment of the retrogression

of a minority group’s effective exercise of 
the electoral franchise depends on an ex­
amination of all the relevant circum­
stances” and that “a court should not focus 
solely on the comparative ability of a mi­
nority group to elect a candidate of its 
choice”), and Reno v. Bossier Parish 
School Board, 528 U.S. 320, 328, 120 S.Ct. 
866, 145 L.Ed.2d 845 (2000) (“Bossier II  ”) 
(which held that “the ‘purpose’ prong of 
§ 5 covers only retrogressive dilution”). 
See 2006 Act § 5 (codified at 42 U.S.C. 
§ 1973c(b)-(d)).

The 2006 Act’s constitutionality was im­
mediately challenged by “a small utility 
district” subject to its provisions. See Nw. 
Austin, 129 S.Ct. at 2508. After finding 
the district ineligible for bailout, the three- 

■ judge district court concluded that the 
reauthorized Voting Rights Act was consti­
tutional. Niv. Austin Mun. Util. Dist. No. 
One v. Mukasey, 573 F.Supp.2d 221, 283 
(D.D.C.2008). On appeal, the Supreme 
Court identified two “serious . . .  ques­
tions” about section 5’s continued constitu­
tionality, namely, whether the “cuirent 
burdens” it imposes are “justified by cur­
rent needs,” and whether its “disparate 
geographic coverage is sufficiently related 
to the problem that it targets.” Nw. A us­
tin, 129 S.Ct. at 2512-13. But invoking 
the constitutional avoidance doctrine, id. at 
2508, 2513, the Court interpreted the stat­
ute to allow any covered jurisdiction, in­
cluding the utility district bringing suit in 
that case, to seek bailout, thus avoiding the 
need to resolve the “big question,” id. at 
2508: Did Congress exceed its constitu­
tional authority when it reauthorized sec­
tion 5? Now that question is squarely pre­
sented.

II.
Shelby County filed suit in the U.S. 

District Court for the District of Columbia, 
seeking both a declaratory judgment that



SHELBY COUNTY, ALA. v. HOLDER
C ite  as 679 F..?d 848 (D C. C ir. 2012)

857

sections 4(b) and 5 of the Voting Rights 
Act are facially unconstitutional and a per­
manent injunction prohibiting the Attorney 
General from enforcing them. Shelby 
Cnty., 811 F.Supp.2d at 427. Unlike the 
utility district in Northwest Austin, Shelby 
County never sought bailout, and for good 
reason. Because the county had held sev­
eral special elections under a law for which 
it failed to seek preclearance and because 
the Attorney General had recently object­
ed to annexations and a redistricting plan 
proposed by a city within Shelby County, 
the County was clearly ineligible for bail­
out. See id. at 446 n. 6. As the district 
court—Judge John D. Bates—recognized, 
the “serious constitutional questions” 
raised in Northwest Austin  could “no long­
er be avoided.” Id. at 427.

Addressing these questions in a thor­
ough opinion, the district couit upheld the 
constitutionality of the challenged provi­
sions and granted summary judgment for 
the Attorney General. After reviewing 
the extensive legislative record and the 
arguments made by Shelby County, the 
Attorney General, and a group of defen- 
dant-intervenors, the district court con­
cluded that “Section 5 remains a ‘con­
gruent and proportional remedy’ to the 
21st century problem of voting discrimina­
tion in covered jurisdictions.” Id. at 428. 
Responding to the Supreme Court's con­
cerns in Northwest Austin, the district 
court found the record evidence of contem- 
poraiy discrimination in covered jurisdic­
tions “plainly adequate to justify section 
5’s strong remedial and preventative 
measures,” id. at 492 (internal quotation 
marks omitted), and to support Congress’s 
predictive judgment that failure to reau­
thorize section 5 “ 'would leave minority 
citizens with the inadequate remedy of a 
Section 2 action,’ ” id. at 498 (quoting 
H.R.Rep. No. 109^178, at 57 (2006)). This 
evidence consisted of thousands of pages 
of testimony, reports, and data regarding 
racial disparities in voter registration, vot­

er turnout, and electoral success; the na­
ture 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 465-66.

14) As to section 4(b), the district 
court acknowledged that the legislative 
record “primarily focused on the persis­
tence of voting discrimination in covered 
jurisdictions—rather than on the compar­
ative levels of voting discrimination in 
covered and non-covered jurisdictions.” 
Id. at 507. Nonetheless, the district 
court pointed to “several significant 
pieces of evidence suggesting that the 
21st century problem of voting discrimi­
nation remains more prevalent in those 
jurisdictions that have historically been 
subject to the preclearance require­
ment”—including the disproportionate 
number of successful section 2 suits in 
covered jurisdictions and the “continued 
prevalence of voting discrimination in cov­
ered jurisdictions notwithstanding the 
considerable deterrent effect of Section 
5.” Id. at 506-07. Thus, although observ­
ing that Congress’s reauthorization “en­
sured that Section 4(b) would continue to 
focus on those jurisdictions with the 
worst historical records of voting discrim­
ination,” id. at 506, the district court 
found this continued focus justified by 
current evidence that discrimination re­
mained concentrated in those jurisdic­
tions. See id. (explaining that Congress 
did not renew the coverage fonnula to 
punish past sins, but rather because it 
found “substantial evidence of contempo- 
raiy voting discrimination by the vety 
same jurisdictions that had histories of 
unconstitutional conduct”). Finally, the 
district court emphasized that Congress 
had based reauthorization not on “a per-



858 679 FEDERAL REPORTER, .'id SERIES

funetory review of a few isolated exam­
ples of voting discrimination by covered 
jurisdictions,” but had ‘“ approached its 
task seriously and with great care.’ ” Id. 
at 496 (quoting Nw. Austin, 573 
F.Supp.2d at 265). Given this, the dis­
tinct court concluded that Congress’s pre­
dictive judgment about the continued 
need for section 5 in covered jurisdictions 
was due “substantial deference,” id. at 
498 (internal quotation marks omitted), 
and therefore “decline[d] to overturn 
Congress’s carefully considered judg­
ment,” id. at 508. Our review is de novo. 
See McGrath v. Clinton, 666 F.3d 1377, 
1379 (D.C.Cir.2012) (“We review the dis­
trict court’s decision to grant summary 
judgment de novo.”).

On appeal, Shelby County reiterates its 
argument that, given the federalism costs 
section 5 imposes, the provision can be 
justified only by contemporary evidence of 
the kind of “ ‘unremitting and ingenious 
defiance’ ” that existed when the Voting 
Rights Act was originally passed in 1965. 
Appellant’s Br. 8 (quoting Katzenbacli, 383 
U.S. at 309, 86 S.Ct. 803). Insisting that 
the legislative record lacks “evidence of a 
systematic campaign of voting discrimina­
tion and gamesmanship by the covered 
jurisdictions,” Shelby County contends 
that section 5’s remedy is unconstitutional 
because it is no longer congruent and pro­
portional to the problem it seeks to cure. 
Id. at 8-9; see also City of Boeme v. 
Flores, 521 U.S. 507, 520, 117 S.Ct. 2157, 
138 L.Ed.2d 624 (1997) (“There must be a 
congruence and proportionality between 
the injury to be prevented or remedied 
and the means adopted to that end.”). In 
addition, Shelby County argues, section 
4(b) contains an “obsolete” coverage for­
mula that fails to identify the problem 
jurisdictions, and because the jurisdictions 
it covers are not uniquely problematic, the 
formula is no longer rational “ ‘in both 
practice and theory.’” Appellant’s Br. 11- 
12 (quoting Katzenbacli, 383 U.S. at 330, 
86 S.Ct. 803).

[5,6] Northwest Austin  sets the 
course for our analysis, directing us to 
conduct two principal inquiries. First, em­
phasizing that section 5 “authorizes federal 
intrusion into sensitive areas of state and 
local policymaking that imposes substantial 
federalism costs,” the Court made clear 
that “[p]ast success alone . . .  is not ade­
quate justification to retain the preclear­
ance requirements.” 129 S.Ct. at 2511. 
Conditions in the South, the Court pointed 
out, “have unquestionably improved”: ra­
cial disparities in voter registration and 
turnout have diminished or disappeared, 
and “minority candidates hold office at un­
precedented levels.” Id. Of course, “fi]t 
may be that these improvements are insuf­
ficient and that conditions continue to war­
rant preclearance under the Act.” Id. at 
2511-12. But “the Act imposes current 
burdens,” and we must deteimine whether 
those burdens are “justified by current 
needs.” Id. at 2512.

[7] Second, the Act, through section 
4(b)’s coverage formula, “differentiates be­
tween the States, despite our historic tra­
dition that all the States enjoy equal sover­
eignty.” Id. (internal quotation marks 
omitted). And while equal sovereignty 
“ ‘does not bar .. . remedies for local ev­
ils,’ ” id. (omission in original) (quoting 
Katzenbach, 383 U.S. at 328-29, 86 S.Ct. 
803), the Court warned that section 4(b)’s 
coverage formula may “fail[ ] to account 
for current political conditions”—that is, 
“[t]he evil that § 5 is meant to address 
may no longer be concentrated in the ju ­
risdictions singled out for preclearance.” 
Id. These concerns, the Court explained, 
“are underscored by the argument” that 
section 5 may require covered jurisdictions 
to adopt race-conscious measures that, if 
adopted by non-covered jurisdictions, could 
violate section 2 of the Act or- the Four­
teenth Amendment. Id. (citing Georgia v.

III.



SHELBY COUNTY, ALA. v. HOLDER
C ite as 679 K.3d 848 (I) C. C ir. 2012)

859

Ashcroft, 539 U.S. at 491, 123 S.Ct. 2498 
(Kennedy, .1., concurring) (“[Consider­
ations of race that would doom a redistrict­
ing plan under the Fourteenth Amend­
ment or § 2 seem to be what save it under 
§ 5.”)). To be sure, such “[distinctions 
can be justified in some cases.” Id. But 
given section 5’s serious federalism costs, 
Northwest Austin  requires that we ask 
whether section 4(b)’s “disparate geo­
graphic coverage is sufficiently related to 
the problem that it targets.” Id.

Before addressing Northivest Austin’s 
two questions, we must determine the ap­
propriate standard of review. As the Su­
preme Court noted, the standard applied 
to legislation enacted pursuant to Con­
gress’s Fifteenth Amendment power re­
mains unsettled. See id. at 2512-13 (not­
ing, but declining to resolve the parties’ 
dispute over the appropriate standard of 
review). Reflecting this uncertainty, Shel­
by County argues that the “congruence 
and proportionality” standard for Four­
teenth Amendment legislation applies, see 
City of Boerne, 521 U.S. at 520, 117 S.Ct. 
2157, whereas the Attorney General insists 
that Congress may use “any rational 
means” to enforce the Fifteenth Amend­
ment, see Katzenbach, 383 U.S. at 324, 86 
S.Ct. 803. Although the Supreme Court 
declined to resolve this issue in Northivest 
Austin, the questions the Court raised— 
whether section 5’s burdens are justified 
by current needs and whether its disparate 
geographic reach is sufficiently related to 
that problem—seem to us the very ques­
tions one would ask to determine whether 
section 5 is “congruenftl and proportion­
al! ] [to] the injury to be prevented,” City 
of Boerne, 521 U.S. at 520, 117 S.Ct. 2157. 
We thus read Northivest Austin  as send­
ing a powerful signal that congruence and 
proportionality is the appropriate standard 
of review. In any event, if section 5 sur­
vives the arguably more rigorous “con­
gruent and proportional” standard, it

would also survive Katzenbach's “rationali­
ty” review.

Of course, this does not mean that the 
Supreme Court’s prior decisions upholding 
the Voting Rights Act are no longer rele­
vant. Quite to the contrary, Katzenbach 
and City of Rome tell us a great deal about 
“[t]he evil that § 5 is meant to address,” 
Nw. Austin, 129 S.Ct. at 2512, as well as 
the types of evidence that are probative of 
“current needs,” id. Moreover, City of 
Boerne relied quite heavily on Katzenbach 
for the proposition that section 5, as origi­
nally enacted and thrice extended, was a 
model of congruent and proportional legis­
lation. See City of Boerne, 521 U.S. at 
525-26, 530, 117 S.Ct. 2157 (relying on 
Katzenbach to explain how the Court eval­
uates remedial legislation under the Four­
teenth and Fifteenth Amendments); see 
also id. at 532-33, 117 S.Ct. 2157 (describ­
ing characteristics of the Voting Rights 
Act, as analyzed by Katzenbach and City 
of Rome, that made it congruent and pro­
portional).

We can likewise seek guidance from the 
Court’s Fourteenth Amendment decisions 
applying the congruent and proportional 
standard to other legislation. In those 
cases, the Court made clear that the rec­
ord compiled by Congress must contain 
evidence of state “conduct transgressing 
the Fourteenth Amendment’s substantive 
provisions,” Coleman v. Court of Appeals
of Md„ ----  U.S. ----- , 132 S.Ct. 1327,
1333, 182 L.Ed.2d 296 (2012), and that 
invasions of state interests based on “ab­
stract generalities,” id. at 1337, or “suppo­
sition and conjecture,” id. at 1 336, cannot 
be sustained. Once satisfied that Con­
gress has identified a pattern of constitu­
tional violations, however, the Court has 
deferred to Congress’s judgment, even in 
the face of a rather sparse legislative rec­
ord. In Nevada Department of Human 
Resources v. Hibbs, for example, the Court



860 679 FEDERAL REPORTER, 3d SERIES

upheld the constitutionality of the family- 
care provision of the Family and Medical 
Leave Act, which allows eligible employees 
to take up to twelve weeks of unpaid leave, 
and “creates a private right of action to 
seek both equitable relief and money dam­
ages against any employer (including a 
public agency).” 538 U.S. 721, 724, 123 
S.Ct. 1972, 155 L.Ed.2d 953 (2003) (inter­
nal quotation marks omitted). Although 
evidence of discriminatory leave policies 
by state governments was hardly exten­
sive, see Tennessee v. Lane, 541 U.S. 509, 
528-29 & n. 17, 124 S.Ct. 1978, 158 
L.Ed.2d 820 (2004) (describing the limited 
evidence relied upon in Hibbs, “little of 
which concerned unconstitutional state 
conduct”), the Court deferred to Con­
gress’s “reasonablfe] conclusions],” Hibbs, 
538 U.S. at 734, 123 S.Ct. 1972, and held 
that the evidence was “weighty enough to 
justify” prophylactic legislation, id. at 735, 
123 S.Ct. 1972. Similarly, in Lane the 
Court considered whether Congress had 
authority under the Fourteenth Amend­
ment to pass Title II of the Americans 
with Disabilities Act, which prohibits pub­
lic entities, including states, from discrimi­
nating on the basis of disability in their 
services, programs, and activities. 541 
U.S. at 513, 124 S.Ct. 1978. Looking into 
the record and noting the long history of 
state discrimination against disabled indi­
viduals, the Court found it “not difficult to 
perceive the harm that Title II is designed 
to address.” See id. at 524-25, 124 S.Ct. 
1978. It held, again with great deference 
to Congress’s take on the evidence, that 
the record, “including judicial findings of 
unconstitutional state action, and statisti­
cal, legislative, and anecdotal evidence of 
the widespread exclusion of persons with 
disabilities from the enjoyment of public 
services,” made “clear beyond peradven- 
ture” that Title II was appropriate pro­
phylactic legislation, id. at 529, 124 S.Ct. 
1978—and this despite the fact that the 
record included only two reported deci­

sions finding unconstitutional state action 
of the precise type at issue, see id. at 544, 
124 S.Ct. 1978 (Rehnquist, C.J., dissent­
ing). By contrast, the Court has found 
that Congress exceeded its Fourteenth 
Amendment authority where the legisla­
tive record revealed a “virtually complete 
absence” of evidence of unconstitutional 
state conduct. Id. at 521, 124 S.Ct. 1978 
(majority opinion) (citing Fla. Prepaid 
Postsecondary Educ. Expense Bd. v. Coll. 
Sav. Bank, 527 U.S. C27, 647^18, 119 S.Ct. 
2199, 144 L.Ed.2d 575 (1999)); see also 
City of Roeme, 521 U.S. at 530, 117 S.Ct. 
2157 (legislative record “lack[ed] examples 
of modern instances” of the targeted con­
stitutional violations); Kimel v. Fla. Bd. of 
Regents, 528 U.S. 62, 89, 120 S.Ct. 631, 145 
L.Ed.2d 522 (2000) (“Congress never iden­
tified any pattern of age discrimination by 
the States, much less any discrimination 
whatsoever that rose to the level of consti­
tutional violation.”).

[8] We read this case law with two 
important qualifications. First, we deal 
here with racial discrimination in voting, 
one of the gravest evils that Congress can 
seek to redress. See Yick Wo v. Hopkins, 
118 U.S. 356, 370, 6 S.Ct. 1064, 30 L.Ed. 
220 (1886) (“[The right to vote] is regarded 
as a fundamental political right, because 
preseivative of all rights.”); Adarand Con­
structors, Inc. v. Pena, 515 U.S. 200, 216, 
115 S.Ct. 2097, 132 L.Ed.2d 158 (1995) 
(“racial classifications [are] constitutionally 
suspect and subject to the most rigid scru­
tiny” (citation omitted) (internal quotation 
marks omitted)). When Congress seeks to 
combat racial discrimination in voting— 
protecting both the right to be free from 
discrimination based on race and the right 
to be free from discrimination in voting, 
two rights subject to heightened scruti­
ny—it acts at the apex of its power. See 
Hibbs, 538 U.S. at 736, 123 S.Ct. 1972 
(noting that it is “easier for Congress to



SHELBY COUNTY, ALA. v. HOLDER
C ite  as 679 F..5d 848 (D C. C ir. 2012)

861

show a pattern of unconstitutional viola­
tions” when it enforces rights subject to 
heightened scrutiny); Lane, 541 U.S. at 
561-63, 124 S.Ct. 1978 (Sealia, J., dissent­
ing) (“Giving [Congress’s enforcement 
powers] more expansive scope with regard 
to measures directed against racial dis­
crimination by the States accords to prac­
tices that are distinctively violative of the 
principal purpose of the [Reconstiuetion 
Amendments] a priority of attention that 
[the Supreme] Court envisioned from the 
beginning, and that has repeatedly been 
reflected in [the Court’s] opinions.”). Ex­
pressly prohibited by the Fifteenth 
Amendment, racial discrimination in voting 
is uniquely harmful in several ways: it 
cannot be remedied by money damages 
and, as Congress found, lawsuits to enjoin 
diseriminatoiy voting laws are costly, take 
years to resolve, and leave those elected 
under the challenged law with the benefit 
of incumbency.

[9] Second, although the federalism 
costs imposed by the statutes at issue in 
Hibbs and Lane (abrogating sovereign im­
munity to allow suits against states for 
money damages) are no doubt substantial, 
the federalism costs imposed by section 5 
are a great deal more significant. To be 
sure, in most cases the preclearance pro­
cess is “routine” and “efficient[ ],” result­
ing in prompt approval by the Attorney 
General and rarely if ever delaying elec­
tions. See Reauthorizing the Voting 
Rights Act’s Temporary Provisions: Poli­
cy Perspectives and Views from the Field: 
Hearing Before the Subcomm. on the Con­
stitution, Civil Rights and Property 
Rights of the S. Comm, on the Judiciary, 
109th Cong. 312-13 (2006) (testimony of 
Donald M. Wright, North Carolina State 
Board of Elections) (stating that most pre­
clearance submissions “take only a few 
minutes to prepare” and that the Justice 
Department cooperates with jurisdictions 
to ensure that “preclearance issue[s] d[o] 
not delay an election”). But section 5

sweeps broadly, requiring preclearance of 
even’ voting change no matter how minor. 
Section 5 also places the burden on cov­
ered jurisdictions to demonstrate to the 
Attorney General or a three-judge district 
court here in Washington that the pro­
posed law is not discriminatory. Given 
these significant burdens, in order to de­
termine whether section 5 remains con­
gruent and proportional we are obligated 
to undertake a review of the record more 
searching than the Supreme Court’s re­
view in Hibbs and Lane.

[10,11] Although our examination of 
the record will be probing, we remain 
bound by fundamental principles of judicial 
restraint. Time and time again the Su­
preme Court has emphasized that Con­
gress’s laws are entitled to a “presumption 
of validity.” City of Boeme, 521 U.S. at 
535, 117 S.Ct. 2157. As the Court has 
explained, when Congress acts pursuant to 
its enforcement authority under the Re­
construction Amendments, its judgments 
about “what legislation is needed . . . are 
entitled to much deference.” Id. (internal 
quotation marks omitted). Even when ap­
plying intermediate scrutiny, the Court 
has accorded Congress deference “out of 
respect for its authority to exercise the 
legislative power,” and in recognition that 
Congress “is far better equipped than the 
judiciary to amass and evaluate the vast 
amounts of data bearing upon legislative 
questions.” Turner Broad. Sys., Inc. v. 
FCC, 520 U.S. 180, 195, 196, 117 S.Ct. 
1174, 137 L.Ed.2d 369 (1997) (internal quo­
tation marks omitted) (rejecting a First 
Amendment challenge to the “must-carry” 
provisions of the Cable Television Consum­
er Protection and Competition Act). And 
critically for our purposes, although North- 
ivest Austin  raises serious questions about 
section 5’s constitutionality, nothing in that 
opinion alters our duty to resolve those 
questions using traditional principles of



862 679 FEDERAL REPORTER, 3d SERIES

deferential review. Indeed, the Court reit­
erated not only that “judging the constitu­
tionality of an Act of Congress is ‘the 
gravest and most delicate duty that [a 
court] is called on to perform,’ ” Nw. Aus­
tin, 129 S.Ct. at 2513 (quoting Blodgett v. 
Holden, 275 U.S. 142, 147-18, 48 S.Ct. 105, 
72 L.Ed. 206 (1927) (Holmes, J., concur- 
l-ing)), but also that “[tjhe Fifteenth 
Amendment empowers ‘Congress,’ not the 
Court, to determine in the first instance 
what legislation is needed to enforce it,” 
id.

A.
[12] Guided by these principles, we be­

gin with Northivest Austin's, first question: 
Are the current burdens imposed by sec­
tion 5 “justified by cuirent needs”? 129 
S.Ct. at 2512. The Supreme Court raised 
this question because, as it emphasized 
and as Shelby County argues, the condi­
tions which led to the passage of the Vot­
ing Rights Act “have unquestionably im- 
proved[,] . . .  no doubt due in significant 
part to the Voting Rights Act itself.” Id. 
at 2511. Congress also recognized this 
progress when it reauthorized the Act, 
finding that “many of the first generation 
barriers to minority voter registration and 
voter turnout that were in place prior to 
the [Voting Rights Act] have been elimi­
nated.” Il.R.Rep. No. 109-178, at 12. 
The dissent’s charts nicely display this 
progress. Racial disparities in voter regis­
tration and turnout have “narrowed con­
siderably” in covered jurisdictions and are 
now largely comparable to disparities na­
tionwide. Id. at 12-17; see also Dissent­
ing Op. at 890-91 figs.I & II. Increased 
minority voting, in turn, has “resulted in 
significant increases in the number of Afri­
can-Americans serving in elected offices.” 
H.R.Rep. No. 109-478, at 18; see also 
Dissenting Op. at, 892 fig.III. For example, 
in the six states fully covered by the 1965 
Act, the number of African Americans 
serving in elected office increased from 345

to 3700 in the decades since 1965. 
H.R.Rep. No. 109-478, at 18.

But Congress found that this progress 
did not tell the whole story. It document­
ed “continued registration and turnout 
disparities” in both Virginia and South 
Carolina. Id. at 25. Virginia, in particu­
lar, “remain[ed] an outlier,” S.Rep. No. 
109-295, at 11 (2006): although 71.6 per­
cent of white, non-Hispanic voting age 
residents registered to vote in 2004, only 
57.4 percent of black voting age residents 
registered, a 14.2-point difference. U.S. 
Census Bureau, Reported Voting and 
Registration of the Total Voting-Age Pop­
ulation, at tbl.4a, available at http://www. 
census.gov/hhes/www/socdemo/voting/ 
publications/p20/2004/tables.html (last vis­
ited May 9, 2012). Also, although the 
number of African Americans holding 
elected office had increased significantly, 
they continued to face barriers to election 
for statewide positions. Congress found 
that not one African American had yet 
been elected to statewide office in Missis­
sippi, Louisiana, or South Carolina. In 
other covered states, “ ‘often it is only 
after blacks have been first appointed to a 
vacancy that they are able to win state­
wide office as incumbents.’ ” H.R.Rep. No. 
109—178, at 33 (quoting Nat’l Comrn’n on 
the Voting Rights Act, Protecting Minori­
ty Voters: The Voting Rights Act at
Work 1982-2005, at 38 (2006) (“Nat’l 
Comm’n Report”)).

Congress considered other types of evi­
dence that, in its judgment, “show[ed] that 
attempts to discriminate persist and 
evolve, such that Section 5 is still needed 
to protect minority voters in the future.” 
Id. at 21. It heard accounts of specific 
instances of racial discrimination in voting.
It heard analysis and opinions by experts 
on all sides of the issue. It considered, 
among other things, six distinct categories

http://www


SHELBY COUNTY, ALA. v. HOLDER
C ite a s  679 F .3d 848 (D C. C ir. 2012)

863

of evidence: (1) Attorney General objec­
tions issued to block proposed voting 
changes that would, in the Attorney Gen­
eral’s judgment, have the purpose or effect 
of discriminating against minorities; (2) 
“more information requests” issued when 
the Attorney General believes that the in­
formation submitted by a covered jurisdic­
tion is insufficient to allow a preclearance 
determination; (3) successful lawsuits 
brought under section 2 of the Act; (4) 
federal observers dispatched to monitor 
elections under section 8 of the Act; (5) 
successful section 5 enforcement actions 
filed against covered jurisdictions for fail­
ing to submit voting changes for preclear­
ance, as well as requests for preclearance 
denied by the United States District Court 
for the District of Columbia; and (6) evi­
dence that the mere existence of section 5 
deters officials from even proposing dis­
criminatory voting changes. Finally, Con­
gress heard evidence that case-by-case 
section 2 litigation was inadequate to rem­
edy the racial discrimination in voting that 
persisted in covered jurisdictions.

Before delving into the legislative record 
ourselves, we consider two arguments 
raised by Shelby County that, if meritori­
ous, would significantly affect how we eval­
uate Lhat record.

[13] First, Shelby County argues that 
section 5 can be sustained only on the 
basis of cuirent evidence of “a widespread 
pattern of electoral gamesmanship show­
ing systematic resistance to the Fifteenth 
Amendment.” Appellant’s Br. 23. Ac­
cording to the County, the preclearance 
remedy may qualify as congruent and pro­
portional only “when it addresses a coordi­
nated campaign of discrimination intended 
to circumvent the remedial effects of direct 
enforcement of Fifteenth Amendment vot­
ing rights.” Id. at 7. We disagree. For 
one thing, how could we demand evidence 
of gamesmanship of the sort present at the 
time of Katzenbach given that section 5

preclearance makes such tactics virtually 
impossible? Equally important, Shelby 
County’s argument rests on a misreading 
of Katzenbach. Although the Court did 
describe the situation in 1965 as one of 
“unremitting and ingenious defiance of the 
Constitution,” Katzenbach, 383 U.S. at 309, 
86 S.Ct. 803, nothing in Katzenbach sug­
gests that such gamesmanship was neces­
sary to the Court’s judgment that section 5 
was constitutional. Rather, the critical 
factor was that “Congress had found that 
case-by-case litigation was inadequate to 
combat widespread and persistent discrim­
ination in voting.” Id. at 328, 86 S.Ct. 803; 
see also id. at 313-15, 86 S.Ct. 803 (ex­
plaining why laws facilitating case-by-case 
litigation had “proved ineffective”). In 
City oj Rome, the Court, while recognizing 
that “undeniable” progress had been made, 
sustained section 5’s constitutionality with­
out ever mentioning gamesmanship of any 
kind, 446 U.S. at 181-82, 100 S.Ct. 1548; it 
relied instead on racial disparities in regis­
tration, the low number of minority elected 
officials, and the number and nature of 
Attorney General objections, id. at 180-81, 
100 S.Ct. 1548. Reinforcing this interpre­
tation of Katzenbach and City of Rome, 
the Supreme Court explained in City of 
Boeme that “[t]he [Voting Rights Act’s] 
new, unprecedented remedies were 
deemed necessary given the ineffective­
ness of the existing voting rights laws, and 
the slow, costly character of case-by-case 
litigation,” 521 U.S. at 526, 117 S.Ct. 2157 
(citation omitted). The Court reiterated 
the point in Board of Trustees of the Uni­
versity of Alabama v. Garrett, 531 U.S. 
356, 373, 121 S.Ct. 955, 148 L.Ed.2d 866 
(2001): “In [enacting the Voting Rights] 
Act . . . Congress also determined that 
litigation had proved ineffective. . . . ”

[14,15] This emphasis on the inade­
quacy of case-by-case litigation makes 
sense: if section 2 litigation is adequate



864 679 FEDERAL REPORTER, 3d SERIES

to deal with the magnitude and extent of 
constitutional violations in covered juris­
dictions, then Congress might have no 
justification for requiring states to pre­
clear their voting changes. Put another 
way, what is needed to make section 5 
congruent and proportional is a pattern 
of racial discr imination in voting so seri­
ous and widespread that case-by-case liti­
gation is inadequate. Given this, the 
question before us is not whether the leg­
islative record reflects the kind of “inge­
nious defiance” that existed prior to 1965, 
but whether Congress has documented 
sufficiently widespread and persistent ra­
cial discrimination in voting in covered ju­
risdictions to justify its conclusion that 
section 2 litigation remains inadequate. 
If it has, then section 5’s “substantial fed­
eralism costs” remain justified because 
preclearance is still needed to remedy 
continuing violations of the Fifteenth 
Amendment.

Second, Shelby County urges us to dis­
regard much of the evidence Congress 
considered because it involves “vote dilu­
tion, going to the weight of the vote once 
cast, not access to the ballot.” Appellant’s 
Br. 26. Specifically, the County faults 
Congress for relying on selective annex­
ations, certain redistricting techniques, at- 
large elections, and other practices that do 
not prevent minorities from voting but in­
stead “dilute minority voting strength,” 
2006 Act § 2(b)(4)(A). According to the 
County, because the Supreme Court has 
“never held that vote dilution violates the 
Fifteenth Amendment,” Bossier II, 528 
U.S. at 334 n. 3, 120 S.Ct. 866, we may not 
rely on such evidence to sustain section 5 
as a valid exercise of Congress’s Fifteenth 
Amendment enforcement power.

[16,171 It is true that neither the Su­
preme Court nor this cour t has ever- held 
that intentional vote dilution violates the 
Fifteenth Amendment. But the Fourteenth 
Amendment prohibits vote dilution intend­

ed “invidiously to minimize or cancel out 
the voting potential of racial or ethnic mi­
norities.” City of Mobile v. Bolden, 446 
U.S. 55, 66, 100 S.Ct. 1490, 64 L.Ed.2d 47 
(1980); see also, e.g., Shaw v. Reno, 509 
U.S. 630, 641, 113 S.Ct. 2816, 125 L.Ed.2d 
511 (1993). Although the Court’s previous 
decisions upholding section 5 focused on 
Congress’s power to enforce the Fifteenth 
Amendment, the same “congruent and pro­
portional” standard, refined by the inqui­
ries set forth in Northwest Austin, appears 
to apply “irrespective of whether Section 5 
is considered [Fifteenth Amendment] en­
forcement legislation, [Fourteenth Amend­
ment! enforcement legislation, or a kind of 
hybrid legislation enacted pursuant to both 
amendments.” Shelby Cnty., 811 
F.Supp.2d at 462 (footnote omitted); see 
also City of Boeme, 521 U.S. at 518, 117 
S.Ct. 2157 (suggesting that Congress’s 
“pow'er to enforce the provisions of the 
Fifteenth Amendment” is “parallel” to its 
power to enforce the Fourteenth Amend­
ment). Indeed, when reauthorizing the 
Act in 2006, Congress expressly invoked 
its enforcement authority under both the 
Fourteenth and Fifteenth Amendments. 
See H.R.Rep. No. 109^178, at 90 (“[T]he 
Committee finds the authority for this leg­
islation under amend. XIV, § 5 and 
amend. XV, § 2.”); id. at 53 & n. 136, 100 
S.Ct. 1490 (stating that Congress is acting 
under its Fourteenth and Fifteenth 
Amendment powers in reauthorizing the 
Voting Rights Act). Accordingly, like 
Congress and the district court, we think it 
appropriate to consider evidence of uncon­
stitutional vote dilution in evaluating sec­
tion 5’s validity. See City of Rome, 446 
U.S. at 181, 100 S.Ct. 1548 (citing Con­
gress’s finding that “[a]s registration and 
voting of minority citizens increase! ], oth­
er measures may be resorted to which 
would dilute increasing minority voting 
strength” as evidence of the continued



SHELBY COUNTY, ALA. v. HOLDER
C ite  as  679 F .3d  848 (I) .C .C ir . 2012)

865

need for section 5 (internal quotation 
marks omitted)).

Consideration of this evidence is espe­
cially important given that so-called “sec­
ond generation” tactics like intentional 
vote dilution are in fact decades-old forms 
of gamesmanship. That is, “as African 
Americans made progress in abolishing 
some of the devices whites had used to 
prevent them from voting,” both in the late 
nineteenth century and again in the 1950s 
and 1960s, “[o]fficials responded by adopt­
ing new measures to minimize the impact 
of black reenfranchisement.” Voting 
Rights Act: Evidence of Continued Need: 
Hearing Before, the Subcomm. on the Con­
stitution of the H. Comm, on the Judicia­
ry, 109th Cong. 141-43 (2006) (“Evidence 
of Continued Need ”). These measures— 
“well-known” tactics such as “ ‘pack[ing]’ ” 
minorities into a single district, spreading 
minority voters thinly among several dis­
tricts, annexing predominately white sub­
urbs, and so on—were prevalent “forms of 
vote dilution” then, and Congress deter­
mined that these persist today. Id. Specif­
ically, Congress found that while “first 
generation barriers”—flagrant attempts to 
deny access to the polls that were perva­
sive at the time of Katzenbach—have di­
minished, “second generation barriers” 
such as vote dilution have been “construct­
ed to prevent minority voter's from fully 
participating in the electoral process.” 
2006 Act § 2(b)(2) (congressional findings). 
Although such methods may be “more sub­
tle than the visible methods used in 1965,” 
Congress concluded that their “effect and 
results are the same, namely a diminishing 
of the minority community’s ability to fully 
participate in the electoral process and to 
elect their- preferred candidates of choice.” 
H.R.Rep. No. 109-478, at 6.

Having resolved these threshold issues, 
we return to the basic question: Does the 
legislative record contain sufficient proba­
tive evidence from which Congress could

reasonably conclude that racial discrimina­
tion in voting in covered jurisdictions is so 
serious and pervasive that section 2 litiga­
tion remains an inadequate remedy? Re­
viewing the record ourselves and focusing 
on the evidence most probative of ongoing 
constitutional violations, we believe it does.

To begin with, the record contains nu­
merous “examples of modern instances” of 
racial discrimination in voting, City of 
Boeme, 521 U.S. at 530, 117 S.Ct. 2157. 
Just a few recent examples:

•  Kilmichael, Mississippi’s abrupt 2001 
decision to cancel an election when “an 
unprecedented number” of African 
Americans ran for office, H.R.Rep. No. 
109-M78, at 36-37 (internal quotation 
marks omitted);

•  Webster County, Georgia’s 1998 pro­
posal to reduce the black population in 
three of the education board’s five sin­
gle-member districts after the school 
district elected a majority black school 
board for the first time, Voting Rights 
Act: Section 5 of the Act—History, 
Scope, and Purpose: Hearing Before 
Subcomm. on the Constitution o f the 
House Judiciary Comm., 109t,h Cong. 
830-31 (2006) (“History, Scope, and 
Purpose ”);

•  Mississippi’s 1995 attempt to evade 
preclearance and revive a dual regis­
tration system “initially enacted in 
1892 to disenfranchise Black voters” 
and previously struck down by a feder­
al court, H.R.Rep. No. 109-478, at 39;

•  Washington Parish, Louisiana’s 1993 
attempt to reduce the impact of a ma- 
jority-African American district by 
“immediately ereatfing] a new at-large 
seat to ensure that no white incumbent 
would lose his seat,” id. at 38;

•  Waller- County, Texas’s 2004 attempt 
to reduce ear ly voting at polling places 
near- a historically black university and 
its threats to prosecute students for



866 679 FEDERAL REPORTER, 3d SERIES

“illegal voting,” after two black stu­
dents announced their intent to run for 
office, Evidence of Continued Need 
185-86.

The legislative record also contains ex­
amples of overt hostility to black voting 
power by those who control the electoral 
process. In Mississippi, for instance, state 
legislators opposed an early 1990s redis- 
tricting plan that would have increased the 
number of black majority districts, refer­
ring to the plan publicly as the “black 
plan” and privately as the “nigger plan,” 
Modem Enforcement of the Voting Rights 
Act: Hearing Before the S. Comm, on the 
Judiciary, 109th Cong. 22 (2006) (“Modem 
Enforcement ”) (internal quotation marks 
omitted); see also S.Rep. No. 109-295, at 
14. In Georgia, the state House Reappor­
tionment Committee Chairman “told his 
colleagues on numerous occasions, ‘I don’t 
want to draw nigger districts,’ ” H.R.Rep. 
No. 109-478, at 67 (quoting Busbee v. 
Smith, 549 F.Supp. 494, 501 (D.D.C.1982)). 
The district court pointed to numerous 
additional examples of intentional discrimi­
nation in the legislative record. See Shel­
by Cnty., 811 F.Supp.2d at 472-76, 477-79, 
480-81, 481-85, 485-87; see also Nw. Aus­
tin, 573 F.Supp.2d at 258-62, 289-301.

In addition to these examples of flagrant 
racial discrimination, several categories of 
evidence in the record support Congress’s 
conclusion that intentional racial discrimi­
nation in voting remains so serious and 
widespread in covered jurisdictions that 
section 5 preclearance is still needed. We 
explore each in turn.

First, Congress documented hundreds of 
instances in which the Attorney General, 
acting pursuant to section 5, objected to 
proposed voting changes that he found 
would have a discriminatory purpose or 
effect. Significantly, Congress found that 
the absolute number of objections has not 
declined since the 1982 reauthorization: 
the Attorney General interposed at least

626 objections during the twenty-two years 
from 1982 to 2004 (an average of 28.5 each 
year), compared to 490 interposed during 
the seventeen years from 1965 to 1982 (an 
average of 28.8 each year). Evidence of 
Continued Need 172; see also S.Rep. No. 
109-295, at 13-14 (finding 754 objections 
between 1982 and the first half of 2006).

Formal objections were not the only way 
the Attorney General blocked potentially 
discriminatory changes under section 5. 
Congress found that between 1990 and 
2005, “more information requests” (MIRs) 
prompted covered jurisdictions to with­
draw or modify over 800 proposed voting 
changes. Evidence of Continued Need 
2553, 2565; H.R.Rep. No. 109-478, at 40- 
41. Although MIRs take no position on 
the merits of a preclearance request, Con­
gress had evidence indicating that the At­
torney Genera] sometimes uses them to 
“send signals to a submitting jurisdiction 
about the assessment of their proposed 
voting change” and to “promot[e] compli­
ance by covered jurisdictions.” Evidence 
of Continued Need 2541. Congress found 
that because “[t]he actions taken by a ju­
risdiction [in response to an MIR] are 
often illustrative of [its] motives,” the high 
number of withdrawals and modifications 
made in response to MIRs constitutes ad­
ditional evidence of “[e]fforts to discrimi­
nate over the past 25 years.” H.R.Rep. 
No. 109^178, at 4(M1.

[18,19] Shelby County contends that 
section 5 objections and MIRs, however 
numerous, “do[ ] not signal intentional vot­
ing discrimination” because they represent 
only the Attorney General’s opinion and 
need not be based on discriminatoiy in­
tent. Appellant’s Br. 30-31; see also id. 
at 32. Underlying this argument is a fun­
damental principle with which we agree: 
to sustain section 5, the record must con­
tain “evidence of a pattern of constitution­
al violations,” Hibbs, 538 U.S. at 729, 123



SHELBY COUNTY, ALA. v. HOLDER
C ite as  679 F .3d 848 (D C. C ir. 2012)

867

S.Ct. 1972, and voting changes violate the 
constitution only if motivated by discrimi­
natory animus, Reno v. Bossier Parish 
Sch. Bd„ 520 U.S. 471, 481, 117 S.Ct. 1491, 
137 L.Ed.2d 730 (1997) (“Bossier Al­
though not all objections rest on an affir­
mative finding of intentional discrimina­
tion, the record contains examples of 
many that do. See Nw. Austin, 573 
F.Supp.2d at 289-301 (appendix providing 
examples of objections based on discrimi­
natory intent). Between 1980 and 2004, 
the Attorney General issued at least 423 
objections based in whole or in part on 
discriminatory intent. Voting Rights Act: 
Section 5—Preclearance Standards: 
Plearing Before the Subcomm. on the Con­
stitution of the H. Comm, on the Judicia­
ry, 109th Cong. 180-81 (2005) (“Preclear- 
ance Standards ”). Moreover, in the 
1990s, before the Supreme Court limited 
the Attorney General’s ability to object 
based on discriminatory but non-retro- 
gressive intent, see Bossier II, 528 U.S. 
320, 120 S.Ct. 8G6 (limiting the scope of 
section 5’s purpose prong in a decision 
overturned by the 2000 Act), “the purpose 
prong of Section 5 had become the domi­
nant legal basis for objections,” Preclear­
ance Standards 177, with seventy-four 
percent of objections based in whole or in 
part on discriminatory intent, id. at 136. 
Although it is true that objections repre­
sent “only one side’s opinion," Appellant’s 
Br. 30, Congress is entitled to rely upon 
the Attorney General’s considered judg­
ment “when it prescribes civil remedies 
. . . under [section] 2 of the Fifteenth 
Amendment.” Katzenbach, 383 U.S. at 
330, 86 S.Ct. 803 (explaining that “Con­
gress obviously may avail itself of informa­
tion from any probative source,” including 
evidence “adduced by the Justice Depart­
ment”). In fact, in City of Rome the Su­
preme Court considered objections to be 
probative evidence of unconstitutional vot­
ing discrimination. See 446 U.S. at 181, 
100 S.Ct. 1548.

Shelby County also points out that the 
percentage of proposed voting changes 
blocked by Attorney General objections 
has steadily declined—from a height of 
4.06 percent (1968-1972) to 0.44 percent 
(1978-1982) to 0.17 percent (1993-1997) 
and to 0.05 percent (1998-2002). An In­
troduction to the Expiring Provisions of 
the Voting Rights Act and Legal Issues 
Relating to Reauthorization: Hearing Be­
fore the S. Comm, on the Judiciary, 109th 
Cong. 219 (2006) (“Introduction to the Ex­
piring Provisions”). But the most dramat­
ic decline in the objection rate—which, as 
the district court obseived, “has always 
been low,” Shelby Cnty., 811 F.Supp.2d at 
470—occuired in the 1970s, before the Su­
preme Court upheld the Act for a third 
time in City of Rome. See Introduction to 
the Expiring Provisions 219. Also, the 
average number of objections per year has 
not declined, suggesting that the level of 
discrimination has remained constant as 
the number of proposed voting changes, 
many likely quite minor, has increased. 
See H.R.Rep. No. 109-478, at 22 (showing 
increase in the annual number of voting 
changes submitted for- preclearance, from 
300-400 per year in the early 1970s to 
4000-5000 per year in the 1990s and 
2000s). As the district court pointed out, 
there may be “many plausible explanations 
for the recent decline in objection rates.” 
See Shelby Cnty., 811 F.Supp.2d at 471. 
Even in the six years from 2000 to 2006, 
after- objection rates had dropped to their 
lowest, Attorney General objections affect­
ed some 660,000 minority voters. The 
Continuing Need for Section 5 Pre-Clear­
ance: IIearing Before the S. Comm, on the 
Judiciary, 109th Cong. 58 (2006) (“Con­
tinuing Need”). Ultimately, Congress be­
lieved that the absolute number of objec­
tions represented the better indicator of 
the extent of discrimination in covered ju­
risdictions. This judgment—whether to 
accord greater weight to absolute numbers



868 67!) FEDERAL REPORTER, 3d SERIES

or to objection rates—is precisely the kind 
that a legislature is “far better equipped” 
than a court to evaluate, Turner Broad.., 
520 U.S. at 195, 117 S.Ct. 1174 (internal 
quotation marks omitted).

As for MIRs, we agree with Shelby 
County that they are less probative of 
discrimination than objections. An MIR 
does not represent a judgment on the mer­
its, and submitting jurisdictions might 
have many reasons for modifying or with­
drawing a proposed change in response to 
one. But the record contains evidence 
from which Congress could “reasonablfy] 
inferf ],” id. (internal quotation marks 
omitted), that at least some withdrawals or 
modifications reflect the submitting juris­
diction’s acknowledgement that the pro­
posed change was discriminatory. See Ev­
idence of Continued Need 178 (stating that 
a jurisdiction’s decision to withdraw a pro­
posed changes in response to an MIR “is 
frequently a tacit admission of one or more 
proposed discriminatory changes”); id. at 
809-10 (explaining that after the Attorney 
General requested more information on a 
redistricting plan containing only two ma­
jority-black districts, the jurisdiction with­
drew the proposal and ultimately adopted 
a redistricting plan with three majority- 
black districts); II.R.Rep. No. 109-478, at 
41 (explaining that Monterey County’s pro­
posal to reduce the number of polling 
places received preclearance only after the 
County withdrew five polling place consoli­
dations in response to an MIR). Given 
this, Congress reasonably concluded that 
some of the 800-plus withdrawals and 
modifications in response to MIRs “re­
flect! ]” “[ejfforts to discriminate over the 
past 25 years.” H.R.Rep. No. 109^178, at 
40.

f20-22] The second category of evi­
dence relied on by Congress, successful 
section 2 litigation, reinforces the pattern 
of discrimination revealed by objections 
and MIRs. The record shows that between

1982 and 2005, minority plaintiffs obtained 
favorable outcomes in some 053 section 2 
suits filed in covered jurisdictions, provid­
ing relief from discriminatory voting prac­
tices in at least 825 counties. Evidence of 
Continued Need 208, 251. Shelby County 
faults the district court for relying on evi­
dence of successful section 2 litigation 
“even though ‘a violation of Section 2 does 
not require a showing of unconstitutional 
discriminatory intent.’ ” Appellant’s Br. 34 
(quoting Shelby Cnty., 811 F.Supp.2d at 
481). The County’s premise is correct: 
although the Constitution prohibits only 
those voting laws motivated by discrimina­
tory intent, section 2 prohibits all voting 
laws for which “ ‘based on the totality of 
circumstances, it is shown that the political 
processes leading to nomination or election 
in the State or political subdivision are not 
equally open to participation by members 
of a [protected] class.’ ” Bart.lett. v. Strick­
land, 556 U.S. 1, 10-11, 129 S.Ct. 1231, 173 
L.Ed.2d 173 (2009) (quoting 42 U.S.C.
§ 1973(b)). In practice, however, this “re­
sults test,” as applied in section 2 cases, 
requires consideration of factors very simi­
lar to those used to establish discriminato­
ry intent based on circumstantial evidence. 
Compare Gingles, 478 U.S. at 36-37, 106 
S.Ct. 2752 (listing factors considered under 
the results test), with Rogers v. Lodge, 458 
U.S. 613, 623-27, 102 S.Ct. 3272, 73 
L.Ed.2d 1012 (1982) (relying on virtually 
identical factor's to affirm a finding of in­
tentional discrimination). Also, as the dis­
trict court pointed out, “courts will avoid 
deciding constitutional questions” if, as is 
the case in virtually all successful section 2 
actions, the litigation can be resolved on 
narrower grounds. Shelby Cnty., 811 
F.Supp.2d at'482; see also, e.g., White v. 
Alabama, 74 F.3d 1058, 1071 n. 42 (11th 
Cir.1996) (“Because we dispose of the dis­
trict court’s judgment on the ground that 
it violates the Voting Rights Act, we need 
not, and indeed, should not, discuss wheth­



SHELBY COUNTY, ALA. v. HOLDER
C ite  a s  679 F .3d  848 (D C. C ir. 2012)

869

er the judgment violates the Equal Protec­
tion Clause.”). This explains why the leg­
islative record contains so few published 
section 2 cases with judicial findings of 
discriminatory intent, see Dissenting Op. 
at 2G; To Examine the Impact and Effec­
tiveness of the Voting Rights Act: Hearing 
Before, the Subcomm. on the Constitution 
of the II. Comm, on the Judiciary, 109th 
Cong. 986-87 (2005) (“Impact and Effec­
tiveness ”) (report by Ellen Katz et al.)— 
courts have no need to find discriminatory 
intent once they find discriminatory effect. 
But Congress is not so limited. Consider­
ing the evidence required to prevail in a 
section 2 case and accounting for the obli­
gation of Article III courts to avoid reach­
ing constitutional questions unless neces­
sary, we think Congress quite reasonably 
concluded that successful section 2 suits 
provide powerful evidence of unconstitu­
tional discrimination. In addition, as with 
Attorney General objections, we cannot ig­
nore the sheer number of successful sec­
tion 2 cases—653 over 23 years, averaging 
more than 28 each year. This high volume 
of successful section 2 actions is particular­
ly dramatic given that Attorney General 
objections block discriminatory laws before 
they can be implemented and that section 
5 deters jurisdictions from even attempt­
ing to enact such laws, thereby reducing 
the need for section 2 litigation in covered 
jurisdictions. See Continuing Need 26 
(explaining that section 5 “makes the cov­
ered jurisdiction^] much ‘cleaner’ than 
they would have been without Section 5 
coverage”).

Third, Congress relied on evidence of 
“the tens of thousands of Federal observ­
ers that have been dispatched to observe 
elections in covered jurisdictions.” 2006 
Act § 2(b)(5). Specifically, 300 to 600 ob­
servers were dispatched annually between 
1984 and 2000, H.R.Rep. No. 109—478, at 
44, amounting to 622 separate dispatches 
(most or all involving multiple observers) 
to covered jurisdictions, Evidence of Con­

tinued Need 180-82; see also 42 U.S.C. 
§ 1973f(a)(2) (authorizing dispatch of fed­
eral observers to covered jurisdictions 
based upon either “written meritorious 
complaints from residents, elected offi­
cials, or civic participation organizations,” 
or the Attorney General’s judgment that 
observers are necessary to enforce the 
Fourteenth or Fifteenth Amendment). Of 
these, sixty-six percent were concentrated 
in five of the six states originally covered 
by section 5—Alabama, Georgia, Louisi­
ana, Mississippi, and South Carolina. 
H.R.Rep. No. 109M78, at 44. In some 
instances, monitoring by federal observers 
“beefame] the foundation of Department 
of Justice enforcement efforts,” as in Co­
necuh County, Alabama, and Johnson 
County, Georgia, where reports by federal 
observers enabled the federal government 
to bring suit against county officials for 
discriminatory conduct in polling locations, 
ultimately resulting in consent decrees. 
Id.; see also Voting Rights Act: Sections 
6 and 8— The Federal Examiner and Ob­
server Program: Hearing Before the Sub­
comm. on the Constitution of the H. 
Comm, on the Judiciary, 109th Cong. 42- 
43 (2006) (“Sections 6 and 8 ”). As Con­
gress saw it, this continued need for fed­
eral observers in covered jurisdictions is 
indicative of discrimination and “demon­
strates that the discriminatory conduct ex­
perienced by minority voters is not solely 
limited to tactics to dilute the voting 
strength of minorities but continues to in­
clude tactics to disenfranchise, such as 
harassment and intimidation inside polling 
locations.” H.R.Rep. No. 109M78, at 44.

Shelby County insists that the Attorney 
General’s decision to dispatch federal ob­
servers “indicates only that . . . there 
might be conduct with the effect of disen­
franchising minority citizens, which might 
or might not be purposeful discrimina­
tion.” Appellant’s Br. 35-36. As the dis­
trict court explained, however, “observers



870 679 FEDERAL REPORTER, 3d SERIES

are not assigned to a particular polling 
location based on sheer speculation; they 
are only dispatched if ‘there is a reason­
able belief that minority citizens are at 
risk of being disenfranchised.’ ” Shelby 
Cnty., 811 F.Supp.2d at 486 (quoting 
H.R.Rep. No. 109-478, at 44). Indeed, 
the Justice Department conducts pre-elec­
tion investigations in order to identify ju ­
risdictions where federal observers are 
likely to be necessary. See Sections 6 
and 8, at 37-39 (explaining that the Jus­
tice Department conducts pre-election 
surveys and field investigations to identify 
jurisdictions where federal observers will 
be needed). The record shows that fed­
eral observers in fact witnessed discrimi­
nation at the polls, sometimes in the form 
of intentional harassment, intimidation, or 
disparate treatment of minority voters. 
See id. at 30-31 (describing discriminato­
ry treatment and harassment of minori­
ties by poll officials in Alabama); id. at 
34 (describing discriminatory treatment of 
minority voters in Texas and Arizona); 
id. at 43 (describing the exclusion of Afri­
can Americans from service as poll work­
ers in Johnson County, Georgia). Thus, 
although the deployment of federal ob­
servers is hardly conclusive evidence of 
unconstitutional discrimination, we think 
Congress could reasonably rely upon it as 
modest, additional evidence of current 
needs.

Fourth, Congress found evidence of con­
tinued discrimination in two types of pre- 
clearance-related lawsuits. Examining the 
first of these—actions brought to enforce 
section 5’s preclearance requirement— 
Congress noted that “many defiant cov­
ered jurisdictions and State and local offi­
cials continue to enact and enforce changes 
to voting procedures without the Federal 
Government’s knowledge.” H.R.Rep. No. 
109^178, at 41. Between 1982 and 2004, at 
least 105 successful section 5 enforcement 
actions wrere brought against such jurisdic­
tions. Evidence of Continued Need 250.

Shelby County believes that successful sec­
tion 5 enforcement actions are “not reli­
able evidence of intentional voting discrim­
ination” because “[t]he most that a section 
5 enforcement action can establish . . .  is 
that a voting change—and quite possibly a 
nondiscriminatory voting change—was not 
properly submitted for preclearance.” Ap­
pellant’s Br. 34. But the legislative record 
does contain evidence that at least some of 
the 105 successful section 5 enforcement 
suits were initiated in response to at­
tempts by covered jurisdictions to imple­
ment purposefully discriminatory laws 
without federal oversight. See Shelby 
Cnty., 811 F.Supp.2d at 480 (describing 
section 5 actions against Mississippi and 
Waller County, Texas, “in which the un- 
precleared voting changes appeared to 
have been motivated by discriminatoiy an­
imus”); Evidence of Continued Need 176 
(explaining that after a section 5 enforce­
ment suit forced Mississippi to submit its 
dual registration law for preclearance, the 
Attorney General objected based on the 
law’s racially discriminatory purpose and 
effect). Therefore, Congress could reason­
ably have concluded that such cases, even 
if few in number, provide at least some 
evidence of continued willingness to evade 
the Fifteenth Amendment’s protections, 
for they reveal continued efforts by recal­
citrant jurisdictions not only to enact dis­
criminatoiy voting changes, but to do so in 
defiance ol section 5’s preclearance re­
quirement.

In addition to section 5 enforcement 
suits, Congress found evidence of contin­
ued discrimination in “the number of re­
quests for declaratory judgments [for pre- 
clearance] denied by the United States 
District Court for the District of Colum­
bia.” 2006 Act § 2(b)(4)(B). The number 
of unsuccessful judicial preclearance ac­
tions appears to have remained roughly 
constant since 1966: twenty-five requests 
were denied or withdrawn between 1982



SHELBY COUNTY, ALA. v. HOLDER
C ile as 679 F.3il 848 (D C. C ir. 2012)

871

and 2004, compared to seventeen between 
I960 and 1982. Evidence of Continued 
Need. 177-78, 275. Shelby County does 
not contest the relevance of this evidence.

Finally, and bolstering its conclusion 
that section 5 remains necessary, Congress 
“ffound] that the existence of Section 5 
deteired covered jurisdictions from even 
attempting to enact discriminatory voting 
changes.” H.R.Rep. No. 109-478, at 24. 
In Congress’s view, “Section 5’s strong 
deterrent effect” and “the number of vot­
ing changes that have never gone forward 
as a result of [that effect]” are “[a]s impor­
tant as the number of objections that have 
been interposed to protect minority voters 
against discriminatory changes” that had 
actually been proposed. Id. As Congress 
explained, “ ‘[o]nce officials in covered ju ­
risdictions become aware of the logic of 
preclearance, they tend to understand that 
submitting discriminatory changes is a 
waste of taxpayer- time and money and 
interferes with their- own timetables, be­
cause the chances are good that an objec­
tion will result.’ ” Id. (quoting Nat’l 
Comm’n Report 57). For this reason, the 
mere existence of section 5 “ ‘encouragefs] 
the legislature to ensure that any voting 
changes would not have a discriminatory 
effect on minority voters, and that it would 
not become embroiled in the preclearance 
process.’ ” Id. (quoting Laughlin Mc­
Donald, The Case for Extending and 
Amending the Voting Rights Act: Voting 
Rights Litigation, 1982-2006: A Report of 
the Voting Rights Project of the American 
Civil Liberties Union 15 (2006)). Congress 
considered testimony that section 5 has 
had just this effect on state and local redis­
tricting processes. See H.R.Rep. No. 109— 
478, at 24 (describing section 5’s “critical” 
influence on the Georgia legislature’s re- 
districting process, which culminated in a 
plan that was precleared with no objection 
by the Attorney General (internal quota­
tion marks omitted)); Evidence of Contin­
ued Need 362-63 (explaining how concerns

about obtaining preclearance prevented 
Fredericksburg, Virginia, from eliminating 
an African American majority district). In 
other words, Congress had “some reason 
to believe that without [section 5’s] deter­
rent effect on potential misconduct,” the 
evidence of continued discrimination in 
covered jurisdictions “might be consider­
ably worse.” S.Rep. No. 109-295, a t 11.

[23] Shelby County argues that Con­
gress’s finding of deterrence reflects 
“ ‘outdated assumptions about racial atti­
tudes in the covered jurisdictions’ ” that 
we should not “indulge[ ].” Appellant’s 
Br. 38 (quoting Nw. Austin, 129 S.Ct. at 
2525 (Thomas, J., concurring in judgment 
in part and dissenting in part)). We agree 
that evaluating section 5’s deterrent effect 
raises sensitive and difficult issues. As 
the dissent rightly points out, the claimed 
effect is hard to measure empirically and 
even hairier to consider judicially. Dis­
senting Op. at 898. We also agree with 
the dissent that section 5 could not stand 
based on claims of deterrence alone, nor 
could deterrence be used in some hypo­
thetical case to justify renewal “to the 
crack of doom,” id. But the difficulty of 
quantifying the statute’s deterrent effect is 
no reason to summarily reject Congress’s 
finding that the evidence of racial discrimi­
nation in voting would look worse without 
section 5—a finding that flows from record 
evidence unchallenged by the dissent. As 
explained above, Congress’s deterrent ef­
fect finding rests on evidence of current 
and widespread voting discrimination, as 
well as on testimony indicating that section 
5’s mere existence prompts state and local 
legislators to conform their conduct to the 
law. And Congress’s finding—that is, a 
finding about how the world would have 
looked absent section 5—rests on precisely 
the type of fact-based, predictive judgment 
that courts are ill-equipped to second 
guess. See Turner Broad., 520 U.S. at



872 G79 FEDERAL REPORTER, 3d SERIES

195, 117 S.Ct. 1174 (“In reviewing the con­
stitutionality of a statute, courts must ac­
cord substantial deference to the pre­
dictive judgments of Congress.” (internal 
quotation marks omitted)).

This brings us, then, to Congress’s ulti­
mate conclusion. After considering the 
entire record, including

•  626 Attorney General objections that 
blocked discriminatory voting changes;

•  653 successful section 2 cases;
•  over 800 proposed voting changes 

withdrawn or modified in response to 
MIRs;

•  tens of thousands of observers sent to 
covered jurisdictions;

•  105 successful section 5 enforcement 
actions;

•  25 unsuccessful judicial preclearance 
actions;

•  and section 5’s strong deterrent effect, 
i.e., the number of voting changes 
that have never gone forward as a 
result of Section 5,” H.R.Rep. No. 
109^178, at 24;

Congress found that serious and wide­
spread intentional discrimination persisted 
in covered jurisdictions and that “case-by- 
case enforcement alone . . . would leave 
minority citizens with [anl inadequate rem­
edy.” Id. at 57. In reaching this conclu­
sion, Congress considered evidence that 
section 2 claims involve “intensely complex 
litigation that is both costly and time-con­
suming.” Modern Enforcement 96; see 
also Introduction to the Expiring Provi­
sions 141 (describing a Federal Judicial 
Center study finding that voting rights 
cases require nearly four times more work 
than an average district court case and 
rank as the fifth most work-intensive of 
the sixty-three types of cases analyzed); 
City of Boeme, 521 U.S at 526, 117 S.Ct. 
2157 (noting the “slow costly character of 
case-by-case litigation” under section 2).
It heard from witnesses who explained 
that it is incredibly difficult for minority

voters to pull together the resources need­
ed” to pursue a section 2 lawsuit, particu­
larly at the local level and in rural commu­
nities. Modem Enforcement 96; see also 
History, Scope, and Purpose 84 (explain­
ing that voters “in local communities and 
particularly in rural areas . . .  do not have 
access to the means to bring litigation 
under Section 2”). Such testimony is par­
ticularly significant given that the vast ma­
jority of section 5 objections (92.5 percent 
from 2000 to 2005) pertained to local vot­
ing changes. See Michael J. Pitts, Let’s 
Not Call the Whole Thing Off Just Yet: A 
Response to Samuel Issacharoffs Sugges­
tion to Scuttle Section 5 of the Voting 
Rights Act, 84 Neb. L.Rev. 605, 612-13 
(2005); see also id. at 616 (“[Section 2 
cases are much less likely to be filed when 
it comes to redistricting in smaller juris­
dictions!.]”). Congress also heard testimo­
ny that during the time it takes to litigate 
a section 2 action—often several years— 
proponents of a discriminatory law may 
enjoy its benefits, potentially winning elec­
tions and gaining the advantage of incum­
bency before the law is overturned. Im ­
pact and Effectiveness 43-14. Given all of 
this, and given the magnitude and persis­
tence of discrimination in covered jurisdic­
tions, Congress concluded that case-by- 
case litigation—slow, costly, and lacking 
section 5’s prophylactic effect—“would be 
ineffective to protect the rights of minority 
voters.” H.R.Rep. No. 109-478, at 57.

According to Shelby County, “[evalua­
tion of the probative evidence shows there 
is no longer systematic resistance to the 
Fifteenth Amendment in the covered juris­
dictions that cannot be solved through 
case-by-case litigation.” Appellant’s Br. 
38. Congress, however, reached a differ­
ent conclusion, and as explained above, the 
County has offered no basis for thinking 
that Congress’s judgment is either unrea­
sonable or unsupported by probative evi­
dence. The dissent accuses us of “over-



SHELBY COUNTY, ALA. v. HOLDER
C ite  as 679 F .3d  848 (D  C. C ir. 2012)

873

stat[ing] the inadequacies of § 2, such as 
cost and the consequences of delay.” Dis­
senting Op. at 888. But the conclusion that 
section 2 is inadequate is Congress’s, not 
ours. The dissent believes that the costs 
of section 2 actions can “be assumed by 
the Department of Justice,” id., but it cites 
nothing in the record to support such spec­
ulation. The dissent also believes that 
“courts may as always use the standard 
remedy of a preliminary injunction to pre­
vent irreparable harm caused by adjudica­
tive delay.” Id. at 888. But Congress 
knows that plaintiffs can seek preliminary 
injunctions and reasonably determined 
that this possibility—that plaintiffs with 
few resources litigating a fact-intensive 
section 2 case will be able to satisfy the 
heavy burden required for preliminaiy in­
junctive relief—was insufficient to alleviate 
its concerns about the inadequacy of sec­
tion 2 actions.

[24] The point at which section 5’s 
strong medicine becomes unnecessary 
and therefore no longer congruent and 
proportional turns on several critical con­
siderations, including the peivasiveness 
of serious racial discrimination in voting 
in covered jurisdictions; the continued 
need for section 5’s deterrent and block­
ing effect; and the adequacy of section 2 
litigation. These are quintessentially leg­
islative judgments, and Congress, after 
assembling and analyzing an extensive 
record, made its decision: section 5’s
work is not yet done. Insofar as Con­
gress’s conclusions rest on predictive 
judgments, we must, contrary to the dis­
sent’s approach, apply a standard of re­
view even “more deferential than we ac­
cord to judgments of an administrative 
agency.” Turner Broad., 520 U.S. at 
195, 117 S.Ct. 1174. Given that we may 
not “displace [an agency’s] choice be­
tween two fairly conflicting views, even 
though the court would justifiably have 
made a different choice had the matter 
been before it de novo,” Universal Cam­

era Corp. v. NLRB, 340 U.S. 474, 488, 
71 S.Ct. 456, 95 L.Ed. 456 (1951), we 
certainly cannot do so here. Of course, 
given the heavy federalism costs that 
section 5 imposes, our job is to ensure 
that Congress’s judgment is reasonable 
and rests on substantial probative evi­
dence. See Turner Broad., 520 U.S. at 
195, 117 S.Ct. 1174 (“In reviewing the 
constitutionality of a statute . . .  [o]ur 
sole obligation is to assure that, in for­
mulating its judgments, Congress has 
drawn reasonable inferences based on 
substantial evidence.” (internal quotation 
marks omitted)). After thoroughly senj- 
tinizing the record and given that overt 
racial discrimination persists in covered 
jurisdictions notwithstanding decades of 
section 5 preclearance, we, like the dis­
tinct court, are satisfied that Congress’s 
judgment deserves judicial deference.

B.
[25] Having concluded that section 5’s 

“current burdens” are indeed justified by 
“current needs,” we proceed to the second 
Northwest Austin  inquiiy: whether the 
record supports the requisite “showing 
that a statute’s disparate geographic cov­
erage is sufficiently related to the problem 
that it targets.” 129 S.Ct. at 2512. Recall 
that this requirement stems from the 
Court’s concern that “[t]he Act . . .  differ­
entiates between the States, despite our 
histone tradition that all the States enjoy 
‘equal sovereignty.’ ” Id. “The evil that § 5 
is meant to address,” the Court observed, 
“may no longer be concentrated in the 
jurisdictions singled out [by section 4(b) ] 
for preclearance.” Id.

Before examining the record ourselves, 
we emphasize that the Act’s disparate geo­
graphic coverage—and its relation to the 
problem of voting discrimination—depends 
not only on section 4(b)’s fonnula, but on 
the statute as a whole, including its mecha­
nisms for bail-in and bailout. Bailout func­



874 079 FEDERAL REPORTER, :td SERIES

tions as an integral feature of section 4’s 
coverage scheme: jurisdictions are subject 
to section 5 only if (1) they are captured by 
section 4(b), and (2) they have not bailed 
out, meaning that they have failed to dem­
onstrate a clean voting record as defined 
in section 4(a). See 42 U.S.C. §§ 1973b(a), 
1973c(a). In addition, jurisdictions not 
captured by section 4(b) but which none­
theless have serious, recent records of vot­
ing discrimination, may be “bailed in”— 
i.e., subjected to section 5 preclearance— 
pursuant to section 3(c). See 42 U.S.C. 
§ 1973a(c). Therefore, the question be­
fore us is whether the statute as a whole, 
not just the section 4(b) formula, ensures 
that jurisdictions subject to section 5 are 
those in which unconstitutional voting dis­
crimination is concentrated.

The most concrete evidence comparing 
covered and non-covered jurisdictions in 
the legislative record comes from a study 
of section 2 cases published on Westlaw or 
Lexis between 1982 and 2004. Impact 
and Effectiveness 964-1124 (report by El­
len Katz et al.). Known as the Katz study, 
it reached two key findings suggesting 
that racial discrimination in voting remains 
“concentrated in the jurisdictions singled 
out for preclearance,” Nw. Austin, 129 
S.Ct. at 2512. First, the study found that 
of the 114 published decisions resulting in 
outcomes favorable to minority plaintiffs, 
64 originated in covered jurisdictions, 
while only 50 originated in non-covered 
jurisdictions. Thus, although covered ju­
risdictions account for less than 25 percent

of the country’s population, they accounted 
for 56 percent of successful section 2 litiga­
tion since 1982. Impact and Effectiveness 
974; see also H.R.Rep. No. 109^178, at 53. 
When the Katz data is adjusted to reflect 
these population differences (based on the 
Census Bureau’s 2004 population esti­
mates, the most recent data then available 
to Congress), 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 residents), as illustrated in the 
chart below. See Ellen Katz & The Voting 
Rights Initiative, VRI Database Master- 
List (2006), http://sitemaker.umich.edu/ 
votingrights/files/masterlist.xls; U.S. Dep’t 
of Justice, Section 5 Covered Jurisdictions, 
http://www.justice.gov/crt/about/vot/sec_5/ 
covered.php (last visited May 9, 2012); 
U.S. Census Bureau, Annual Estimates of 
the Population for the United States and 
States, and for Puerto Rico: April 1, 2000 
to July 1, 2004, available at http://www.
census.gov/popest/data/historical/2 0 0 0 s/ 
vintage_2004/state.html (last visited May 9, 
2012); U.S. Census Bureau, Annual Esti­
mates of the Resident Population for 
Counties: April 1, 2000 to July 1, 2004, 
available at http://www.census.gov/popest/ 
data/counties/totals/2004/CO-EST2004-01.
html (last visited May 9, 2012); U.S. Cen­
sus Bureau, Population Estimates: Minor 
Civil Divisions: 2000 to 2004, available at 
http://www.census.gov/popest/data/cities/ 
totals/2004/SUB-EST2004—5.html (last vis­
ited May 9, 2012).

I

http://sitemaker.umich.edu/
http://www.justice.gov/crt/about/vot/sec_5/
http://www
http://www.census.gov/popest/
http://www.census.gov/popest/data/cities/


SHELBY COUNTY, ALA. v. HOLDER
C ite as 679 F .3d 848 (D.C. C ir. 2012)

875

Successful Published Section 2 Cases 
per Million Residents

Covered Jurisdictions Non-Covered 
Jurisdictions

Second, the study found higher success 
rates in covered jurisdictions than in non- 
covered jurisdictions. Specifically, 40.5 
percent of published section 2 decisions in 
covered jurisdictions resulted in favorable 
outcomes for plaintiffs, compared to only 
30 percent in non-covered jurisdictions. 
Impact and Effectiveness 974.

The difference between covered and 
non-covered jurisdictions becomes even 
more pronounced when unpublished sec­
tion 2 decisions—primarily court-approved 
settlements—are taken into account. As 
the Katz study noted, published section 2 
lawsuits “represent only a portion of the 
section 2 claims filed or decided since 
1982” since many claims were settled or 
otherwise resolved without a published 
opinion. Id. at 974. According to data 
compiled by the National Commission on 
the Voting Rights Act and Justice Depart­
ment historian Peyton McCraiy, there 
have been at least 686 unpublished suc­
cessful section 2 cases since 1982, amount­
ing to a total of some 800 published and 
unpublished cases with favorable outcomes 
for minority voters. See Deck of Dr. Pey­
ton McCrary 13 (“McCrary Deck”). Of 
these, approximately 81 percent were filed

in covered jurisdictions. Id. When this 
data is broken down state-by-state, sepa­
rately identifying covered and non-covered 
portions of partially covered states, the 
concentration of successful section 2 cases 
in the covered jurisdictions is striking. Of 
the eight states with the highest number 
of successful published and unpublished 
section 2 cases per million residents—Ala­
bama, Mississippi, Arkansas, Texas, South 
Carolina, Georgia, and the covered por­
tions of South Dakota and North Car­
olina—all but one are covered. See Supp. 
Deck of Dr. Peyton McCrary 3-7; U.S. 
Dep’t of Justice, Section 5 Covered Juris­
dictions, http://www.justice.gov/crt/about/ 
vot/sec_5/covered.php (last visited May 9, 
2012); U.S. Census Bureau, Annual Esti­
mates of the Population for the United 
States and States, and for Puerto Rico: 
April 1, 2000 to July 1, 2004, available at 
http://www.census.gov/popest/data/ 
historical/2000s/vintage_2004/state.html 
(last visited May 9, 2012); U.S. Census 
Bureau, Annual Estimates of the Resident 
Population for Counties: April 1, 2000 to 
July 1, 2004, available at http://www. 
census.gov/popest/data/counties/totals/ 
2004/CO-EST2004-01.html (last visited

http://www.justice.gov/crt/about/
http://www.census.gov/popest/data/
http://www


876 •>79 FEDERAL REPORTER, 3d SERIES

May 9, 2012); U.S. Census Bureau, Popu­
lation Estimates: Minor Civil Divisions: 
2000 to 2004, available at http://www. 
census.gov/popestydata/cities/to tals/2004/ 
SUB-EST2004-5.html (last visited May 9, 
2012). The only exception is Arkansas, 
which, though not captured by section 4(b), 
was subjected to partial preclearance pur­
suant to a 1990 federal court order, i.e., 
“bailed in.” See Jeffers v. Clinton, 740 
F.Supp. 585, 601-02 (E.D.Ark.1990). Simi­
larly, of the fourteen states with the high­
est number of successful published and 
unpublished section 2 cases per million

residents—the eight listed above, plus 
Montana, Louisiana, New Mexico, Virginia, 
and the non-covered portions of South Da­
kota and North Carolina—eleven are ei­
ther covered, including the seven states 
originally covered by the 1965 Act, or were 
bailed in for some pciiod (Arkansas and 
New Mexico). See Travis Crum, Note, 
The Voting Rights Act’s Secret Weapon: 
Pocket Trigger Litigation and Dynamic 
Preclearance, 119 Yale L.J.1992, 2010 & 
nn.100-01 (2010) (discussing bail-in of Ar­
kansas and New Mexico). This data is 
displayed in the chart on the following 
page.

http://www


SHELBY COUNTY, ALA. v. HOLDER
C ite  a s  679 F .3d  848 (D C. C ir. 2012)

877

South Dakota * C 
Alabama 

Mississippi 
North Carolina - C 

Arkansas 
Texas 

South Carolina 
Georgia 

Montana 
South Dakota - NC 

Louisi ana 
New Mexico 

North Carolina - NC 
Virginia 

Rhode Island 
North Dakota 

Delaware 
California - C 
Florida - NC 

Tennessee 
Maryland 

Illinois 
Hawaii 

New York • C 
Colorado 

Florida - C 
Indiana 

Nebraska 
Connecticut 

New York - NC 
Massachusetts 

California - NC 
Utah 

Arizona 
Missouri 

Pennsylvania 
New Jersey 
Wisconsin 

Ohio
Michigan - NC

o
Cases Per Million Residents 

C n o t n o c n o t n O L n

Shelby County objects to the use of 
unpublished section 2 data, pointing out 
that although Congress considered the Na­
tional Commission’s analysis of unpub­
lished cases in covered jurisdictions, the 
legislative record does not contain 
McCrary’s analysis of unpublished cases in 
non-covered jurisdictions. We agree that

there are reasons to approach this data 
with caution: McCrary prepared his analy­
sis after the 2006 reauthorization, and be­
cause his data regarding unpublished cases 
in non-covered jurisdictions was collected 
separately from the data on unpublished 
cases in covered jurisdictions, we cannot 
be certain that the data collection methods



878 679 FEDERAL REPORTER, 3d SERIES

were identical. That said, the Supreme 
Court has considered post-enactment evi­
dence to find at least one law congruent 
and proportional, see Lane, 541 U.S. at 
524-25 nn. 6-9 &'13, 124 S.Ct. 1978 (citing 
articles and eases published ten or more 
years after the Americans with Disabilities 
Act was enacted, as well as recent versions 
of statutes and regulations), and here a 
majority of the unpublished cases from 
non-covered jurisdictions (as well as all 
from covered jurisdictions) appears in the 
legislative record, see McCraiy Decl. 10. 
Also, while the Katz data on published 
cases is necessarily underinclusive, see Im ­
pact and Effectiveness 974 (explaining that 
the published cases analyzed by the Katz 
study “represent only a portion” of all 
section 2 actions), Shelby County has iden­
tified no errors or inconsistencies in the 
data analyzed by McCrary. Indeed, 
McCraiy points out that even if his meth­
odology identified only half of the unpub­
lished cases in non-covered jurisdictions, 
“there would still be 393 more settlements 
resolved favorably for minority voters in” 
covered jurisdictions. McCraiy Decl. 11. 
For these reasons, although we would not 
rely solely on the combined published and 
unpublished data, we think it provides 
helpful additional evidence that corrobo­
rates the disparities in the level of discrim­
ination between covered and non-covered 
jurisdictions revealed by the published 
data.

The section 2 data, moreover, does not 
tell the whole story. As explained above, 
Congress found that section 5, which oper­
ates only in covered jurisdictions, deters or 
blocks many discriminatory voting laws be­
fore they can ever take effect and become 
the target of section 2 litigation. “Section 
5’s reach in preventing discrimination is 
broad. Its strength lies not only in the 
number of discriminatoiy 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 Act], or 
in the discriminatory voting changes that 
have never materialized.” H.R. Rep. No. 
109-478, at 36. Accordingly, if discrimina­
tion were evenly distributed throughout 
the nation, we would expect to see fewer 
successful section 2 cases in covered juris­
dictions than in non-covered jurisdictions. 
See Continuing Need 26 (explaining that 
section 5 “makes the covered jurisdic- 
tionfs] much ‘cleaner’ than they would 
have been without Section 5 coverage”). 
Yet we see substantially more.

Shelby County makes two main argu­
ments in response to this evidence. First, 
citing Katzenbach’s finding that the cover­
age formula was “rational in both practice 
and theory,” 383 U.S. at 330, 86 S.Ct. 803, 
it contends that section 4(b) is irrational 
because it relies on “decades-old data.” 
Appellant’s Br. 59. “It cannot be consti­
tutional,” Shelby County insists, “to rely 
on decades-old voting data to establish 
current voting discrimination.” Id. In ad­
dition, the County claims that in 1965 
Congress was concerned with “first-gener­
ation” barriers—tests and devices that de­
nied access to the ballot—and crafted the 
coverage formula to capture states that 
erected such barriers and had low regis­
tration rates. But in 2006, although Con­
gress was more concerned with “second- 
generation” barriers—vote dilution tech­
niques that weaken “minority voting effec­
tiveness”—it retained a coverage formula 
aimed at first-generation problems. Thus, 
Shelby County concludes, “[t]here is a ser­
ious mismatch between the conduct tar­
geted by Congress and the factors that 
trigger coverage under Section 4(b).” Id 
at 60.

This argument rests on a misunder­
standing of the coverage formula. As the 
district court explained, the election years 
that serve as coverage “triggers” under



SHELBY COUNTY, ALA. v. HOLDER
C ite  as 679 F .3d 848 (D  C. C ir. 2012)

879

section 4(b) “were never selected because 
of something special that occuired in those 
years.” Shelby Cnty., 811 F.Supp.2d at 
505. Instead, Congress identified the ju­
risdictions it sought to cover—those for 
which it had “evidence of actual voting 
discrimination,” Katzenbach, 383 U.S. at 
329, 86 S.Ct. 803—and then worked back­
ward, reverse-engineering a formula to 
cover those jurisdictions. See id. (explain­
ing that “Congress began work with reli­
able evidence of actual voting discrimina­
tion in a great majority of the States and 
political subdivisions affected by the new 
remedies of the Act” and that it “eventual­
ly evolved” a formula “to describe these 
areas”). The coverage formula relied on 
tests and devices “because of their long 
histoiy as a tool for perpetrating the evil,” 
and voting rates because “widespread dis­
enfranchisement must inevitably affect the 
number of actual voters.” Id. at 330, 86 
S.Ct. 803. In other words, Congress chose 
the section 4(b) criteria not because tests, 
devices, and low participation rates were 
all it sought to target, but because they 
served as accurate proxies for pernicious 
racial discrimination in voting. The ques­
tion, then, is not whether the formula re­
lies on old data or techniques, but instead 
whether it, together with bail-in and bail­
out, continues to identify the jurisdictions 
with the worst problems. If it does, then 
even though the formula rests on decades- 
old factors, the statute is rational in theory 
because its “disparate geographic cover­
age” remains “sufficiently related to the 
problem that it targets.” Nw. Austin, 129 
S.Ct. at 2512.

Of course, Shelby County’s real argu­
ment is that the statute fails this test, i.e., 
that it no longer actually identifies the 
jurisdictions “uniquely interfering with the 
right Congress is seeking to protect 
through preclearance.” Appellant’s Br. 62. 
The County points out that Congress nev­
er made a finding that racial discrimina­
tion in voting was “concentrated in the

jurisdictions singled out for preclearance.” 
Nw. Austin, 129 S.Ct. at 2512. The Coun­
ty also argues that the Katz study is at 
best inconclusive, for some non-covered 
states, such as Illinois and the non-covered 
portions of New York, had more successful 
published section 2 lawsuits than did sev­
eral covered states. In any event, it 
claims, “aggregated statistics showing 
slightly more Section 2 litigation with ‘fa­
vorable outcomes’ in covered jurisdictions 
as a group is not a rational basis for 
subjecting individually-targeted States to 
another 25 years of preclear ance.” Appel­
lant’s Br. 70.

[26] Shelby County’s first point—that 
Congress failed to make a finding—is easi­
ly answered. Congress did not have to. 
United States v. Lopez, 514 U.S. 549, 562, 
115 S.Ct. 1624, 131 L.Ed.2d 626 (1995) 
(Congress “normally is not required to 
make formal findings” in order to legis­
late). The proper question is whether the 
record contains sufficient evidence to dem­
onstrate that the formula continues to tar­
get jurisdictions with the most serious 
problems. See Nw. Austin, 129 S.Ct. at 
2512. This presents a close question. The 
record on this issue is less robust than the 
evidence of continued discrimination, see 
supra Part III.A, although this is in part 
due to the difficulty of comparing jurisdic­
tions that have been subject to two very 
different enforcement regimes, i.e., cov­
ered jurisdictions are subject to both sec­
tions 2 and 5 while non-covered jurisdic­
tions are subject only to section 2. And 
although the Katz data in the aggregate 
does suggest that discrimination is concen­
trated in covered jurisdictions, just three 
covered states—Alabama, Louisiana, and 
Mississippi—account for much of the dis­
parity. The covered states in the middle 
of the pack—North Carolina, South Car­
olina, Virginia, Texas, and Georgia—are 
about on par with the worst non-covered



880 679 FEDERAL REPORTER, 3d SERIES

jurisdictions. And some covered states— 
Alaska and Arizona—had no successful 
published section 2 cases at all.

As explained above, however, this data 
presents an incomplete picture of covered 
jurisdictions. When we consider the Katz 
data in conjunction with other record evi­
dence, the picture looks quite different. 
For instance, although Georgia had only 
three successful published section 2 cases 
between 1982 and 2004, during that time 
the state had 66 successful unpublished 
section 2 cases, 83 section 5 objections, and 
17 successful section 5 enforcement ac­
tions. Evidence of Continued Need 250- 
51, 272. In addition, between 1990 and 
2005, jurisdictions in Georgia withdrew 90 
proposed voting changes in response to 
MIRs. Id. at 2566. South Carolina is simi­
lar. Although the state had only 3 suc­
cessful published section 2 cases, it had 30 
successful unpublished section 2 cases, 74 
section 5 objections, and 10 successful sec­
tion 5 enforcement actions, as well as 26 
voting changes withdrawn in response to 
MIRs and 51 changes that could not law­
fully be implemented for failure to respond 
to MIRs. Id. at 250-51, 272, 2566. South 
Carolina, moreover, is one of the covered 
states that not only has continued racial 
disparities in voter registration and turn­
out, but that has never elected an African 
American to statewide office. See supra p. 
862. Accordingly, even if only a relatively 
small portion of objections, withdrawn vot­
ing changes, and successful section 5 en­
forcement actions correspond to unconsti­
tutional conduct, and even if there are 
substantially more successful unpublished 
section 2 cases in non-covered jurisdictions 
than the McCrary data reveals, these mid­
dle-range covered jurisdictions appear to 
be engaged in much more unconstitutional 
discrimination compared to non-covered 
jurisdictions than the Katz data alone sug­
gests. In fact, the discrepancy between 
covered and non-covered jurisdictions is 
likely even greater given that, as Congress

found, the mere existence of section 5 de­
ters unconstitutional behavior in the cov­
ered jurisdictions. That is, the middle- 
range covered states appear comparable to 
some non-covered jurisdictions only be­
cause section 5’s deterrent and blocking 
effect screens out discriminatory laws be­
fore section 2 litigation becomes necessary. 
Had section 5 not been in effect, one would 
expect significantly more discrimination in 
North Carolina, South Carolina, Virginia, 
Texas, and Georgia, all covered by section 
5, than in the non-covered states with the 
worst records. See S.Rep. No. 109-295, at 
11 (suggesting that “without the Voting 
Rights Act’s deterrent effect,” the evi­
dence of discrimination in the covered ju­
risdictions “might be considerably worse”).

To be sure, the coverage formula’s fit is 
not perfect. But the fit was hardly perfect 
in 1965. Accordingly, KalzenbacKs dis­
cussion of this issue offers a helpful guide 
for our current inquiiy, particularly when 
we consider all probative record evidence 
of recent discrimination—and not just the 
small subset of section 2 cases relied upon 
by the dissent, see Dissenting Op. at 898- 
99. In 1965, the formula covered three 
states in “which federal courts ha[d] re­
peatedly found substantial voting discrimi­
nation”—Alabama, Louisiana, and Missis­
sippi, Katzenbach, 383 U.S. at 329, 86 S.Ct. 
803, the same three states that, notwith­
standing more than forty years of section 5 
enforcement, still account for the highest 
rates of published successful section 2 liti­
gation, as well as large numbers of unpub­
lished successful section 2 cases, section 5 
objections, federal obseiver coverages, and 
voting changes withdrawn or modified in 
response to MIRs. But the 1965 formula 
also' “embrace[d] two other States—Geor­
gia and South Carolina—plus large por­
tions of a third State—North Carolina— 
lor which there was more fragmentary 
evidence of recent voting discrimination 
mainly adduced by the Justice Department



SHELBY COUNTY, ALA. v. HOLDER
Ci(e as 679 F.3il 848 (D C. C ir. 2012)

881

and the Civil Rights Commission.” Id. at 
329-30, 86 S.Ct. 803. Today, the middle- 
range covered jurisdictions—North Car­
olina, South Carolina, Virginia, Texas, and 
Georgia—look similar: although the legis­
lative record contains fewer judicial find­
ings of racial discrimination in these 
states, it contains at least fragmentary evi­
dence, in part based on Attor ney General 
objections, that these states continue to 
engage in unconstitutional racial discrimi­
nation in voting. Finally, the 1965 formula 
swept in several other jurisdictions—in­
cluding Alaska, Virginia, and counties in 
Arizona, Hawaii, and Idaho—for which 
Congress apparently had no evidence of 
actual voting discrimination. See id. at 
318, 329-30, 86 S.Ct. 803. Today, the Act 
likewise encompasses jurisdictions for 
which there is some evidence of continued 
discrimination—Arizona and the covered 
counties of California, Florida, and New 
York, see Evidence of Continued Need 
250-51, 272—as well as jurisdictions for 
which ther e appear s little or no evidence of 
curr ent problems—Alaska and a few towns 
in Michigan and New Hampshire.

Critically, moreover, and as noted above, 
in determining whether section 5 is “suffi­
ciently related to the problem that it tar­
gets,” we look not just at the section 4(b) 
formula, but at the statute as a whole, 
including its provisions for bail-in and bail­
out. Bail-in allows jurisdictions not cap­
tured by section 4’s coverage formula, but 
which nonetheless discriminate in voting, 
to be subjected to section 5 preclearance. 
Thus, two non-covered states with high 
numbers of successful published and un­
published section 2 cases—Arkansas and 
New Mexico—were subjected to partial 
preclearance under the bail-in provision. 
See Jeffers, 740 F.Supp. at 601-02; Crum, 
119 Yale L.J. at 2010 & n.101 (citing San­
chez v. Anaya, No. 82-0067M, slip op. at 8 
(D.N.M. Dec. 17, 1984)). Federal courts 
have also bailed in jurisdictions in several

states, including Los Angeles County, Cali­
fornia; Escambia County, Florida; Thur­
ston County, Nebraska; Bernalillo County, 
New Mexico; Buffalo County, South Dako­
ta; Charles Mix County, South Dakota; 
and the city of Chattanooga, Tennessee. 
See Crum, 119 Yale L.J. at 2010 & nn.102- 
08.

Bailout plays an even more important 
role in ensuring that section 5 covers only 
those jurisdictions with the worst records 
of racial discrimination in voting. As the 
Supreme Court explained in City of 
Boeme, the availability of bailout “re- 
duce[s] the possibility of overbreadth” and 
helps “ensure Congress’ means are pro­
portionate to [its] ends.” 521 U.S. at 533, 
117 S.Ct. 2157; see also Katzenbach, 383 
U.S. at 329, 86 S.Ct. 803 (“Acknowledging 
the possibility of overbreadth, the Act pro­
vides for termination of special statutory 
coverage at the behest of States and politi­
cal subdivisions in which the danger- of 
substantial voting discrimination has not 
materialized during the preceding five 
yeai-s.”). As of May 9, 2012, having dem­
onstrated that they no longer- discriminate 
in voting, 136 jurisdictions and sub-juris­
dictions had bailed out, including 30 coun­
ties, 79 towns and cities, 21 school boards, 
and 6 utility or sanitary districts. U.S. 
Dep’t of Justice, Section 4 of the Voting 
Rights Act, http:/Avww.justice.gov/crt/ 
about/vot/misc/sec_4.php# bailouLJist (last 
visited May 9, 2012) (“DOJ Bailout List”). 
In fact, by ruling in Northwest Austin  that 
any jurisdiction covered by section 5 could 
seek bailout—a development unmentioned 
by the dissent—the Supreme Court in­
creased significantly the extent to which 
bailout helps “ensure Congress’ means are 
proportionate to [its] ends,” Boeme, 521 
U.S. at 533, 117 S.Ct. 2157. See Nw. 
Austin, 129 S.Ct. at 2516 (holding that “all 
political subdivisions—not only those de­
scribed in § 14(c)(2)—are eligible to file a 
bailout suit”). Not surprisingly, then, the



882 679 FEDERAL REPORTER, ,!d SERIES

pace of bailout increased after Northwest 
Austin: of the successful bailout actions 
since 19G5, 30 percent occurred in the 
three years after the Supreme Court is­
sued its decision in 2009. See DOJ Bailout 
List, http://www.justice.gov/crt/about/vot/ 
misc/sec_4.php# bailoutdist. Also, the At­
torney General “has a number of active 
bailout investigations, encompassing more 
than 100 jurisdictions and subjurisdictions 
from a range of States.” Br. for Att’y 
Gen. as Appellee at 47^18, LaRoque v. 
Holder, 079 F.3d 905 (D.C.Cir.2012).

[27] The importance of this significant­
ly liberalized bailout mechanism cannot be 
overstated. Underlying tbe debate over 
the continued need for section 5 is a judg­
ment about when covered jurisdictions— 
many with veiy bad historic records of 
racial discrimination in voting—have 
changed enough so that case-by-case sec­
tion 2 litigation is adequate to protect the 
right to vote. Bailout embodies Con­
gress’s judgment on this question: juris­
dictions originally covered because of their 
histories of discrimination can escape sec­
tion 5 preclearance by demonstrating a 
clean record on voting rights for ten years 
in a row. See 42 U.S.C. § 1973b(a)(l) 
(bailout criteria). As the House Report 
states, “covered status has been and con­
tinues to be within the control of the juris­
diction such that those jurisdictions that 
have a genuinely clean record and want to 
teirninate coverage have the ability to do 
so.” H.R.Rep. No. 109-478, at 25. Bail­
out thus helps to ensure that section 5 is 
“sufficiently related to the problem that it 
targets,” Nw. Austin, 129 S.Ct. at 2512.

Shelby County complains that bailout 
helps only “at the margins,” Appellant’s 
Br. 53; see also Dissenting Op. at 901, and 
the dissent emphasizes that only about 1 
percent of covered jurisdictions and subju­
risdictions have applied for bailout, Dis­
senting Op. at 901. But absent evidence 
that there are “clean” jurisdictions that

would like to bail out but cannot meet the 
standards, the low bailout rate tells us 
nothing about the effectiveness of the bail­
out provision. See Shelby Cnty., 811 
F.Supp.2d at 500-01 (describing “several 
plausible explanations for th[e] failure to 
seek bailout,” including “the minimal ad­
ministrative cost associated with preclear- 
ance, and the fact that covered jurisdic­
tions see no need to avoid the preclearance 
requirement”). As the dissent concedes, 
since 1982 no bailout application has been 
denied, Dissenting Op. at 900-01, and Con­
gress considered evidence that the bailout 
criteria “are easily proven for jurisdictions 
that do not discriminate in their voting 
practices.” Voting Rights Act: An Exami­
nation of the Scope and Criteria for Cover­
age Under the Special Provisions of the 
Act: Hearing Before the Subcomm. on the 
Constitution of the H. Comm, on the Judi­
ciary, 109th Cong. 90 (2005). The dissent 
speculates that “opaque standards” may 
prevent bailouts, Dissenting Op. at 900-01, 
but neither it nor- Shelby County specifical­
ly challenges Congress’s definition of what 
constitutes a clean jurisdiction or how the 
Attorney General is applying the bailout 
criteria. In fact, as noted above, Shelby 
County never even tried to bail out and 
has brought only a facial challenge. If 
something about the bailout criteria them­
selves or how the Attorney General is ap­
plying them is preventing jurisdictions 
with clean records from escaping section 5 
preclearance, those criteria can be chal­
lenged in a separate action brought by any 
adversely affected jurisdiction. See Unit­
ed States v. Salerno, 481 U.S. 739, 745, 107 
S.Ct. 2095, 95 L.Ed.2d 697 (1987) (explain­
ing that in a facial challenge, ‘jt]he fact 
that [a law] might operate unconstitution­
ally under some conceivable set of circum­
stances is insufficient to render it wholly 
invalid”).

http://www.justice.gov/crt/about/vot/


SHELBY COUNTY, ALA. v. HOLDER
C ile a s  679 F .3d 848 (D C . C ir. 2012)

883

[28] This, then, brings us to the critical 
question: Is the statute’s “disparate geo­
graphic coverage . . .  sufficiently related to 
the problem that it targets”? Nw. Austin, 
129 S.Ct. at 2512. Of course, if the statute 
produced “a remarkably bad fit,” Dissent­
ing Op. at 898-99, then we would agree 
that it is no longer congruent and propor­
tional. But as explained above, although 
the section 4(b) formula relies on old data, 
the legislative record shows that it, togeth­
er with the statute’s provisions for bail-in 
and bailout—hardly “tack[ed] on,” id. at 
901 (internal quotation marks omitted), but 
rather an integral part of the coverage 
mechanism—continues to single out the 
jurisdictions in which discrimination is con­
centrated. Given this, and given the fun­
damental principle that we may not 
“strikfe] down an Act of Congress except 
upon a clear showing of unconstitutionali­
ty,” Salazar v. Buono, ----U .S .-------, 130
S.Ct. 1803, 1820, 176 L.Ed.2d 634 (2010) 
(plurality opinion), we see no principled 
basis for setting aside the district court’s 
conclusion that section 5 is “sufficiently 
related to the problem that it targets,” 
Niv. Austin, 129 S.Ct. at 2512.

C.
We turn, finally, to.the dissent’s argu­

ment that section 5 “requires a jurisdiction 
not only to engage in some level of race­
conscious decisionmaking, but also on occa­
sion to sacrifice principles aimed at depoli- 
ticizing redistricting.” Dissenting Op. at 
886; see also Nw. Austin, 129 S.Ct. at 
2512 (explaining that “federalism concerns 
are underscored by the argument that .. . 
‘considerations of race that would doom a 
redistricting plan under the Fourteenth 
Amendment or § 2 seem to be what save it 
under § 5’ ” and that “[additional consti­
tutional concerns are raised in saying that 
this tension between §§ 2 and 5 must per­
sist in covered jurisdictions and not else­
where” (quoting Georgia v. Ashcroft, 539 
U.S. at 491, 123 S.Ct. 2498 (Kennedy, J.,

concurring))). According to the dissent, 
this concern and the burden imposed by 
section 5 are aggravated by the amend­
ments to section 5 Congress added in con­
junction with the 2006 reauthorization. 
Dissenting Op. at 886-88; see also 2006 
Act § 5.

[291 The dissent’s thoughtful argu­
ments face a serious obstacle. Shelby 
County neither challenges the constitution­
ality of the 2006 amendments or even ar­
gues that they increase section 5’s bur­
dens, nor does it argue that section 5 
requires covered jurisdictions to undertake 
impermissible considerations of race. 
These issues, in other words, are entirely 
unbriefed, and as we have repeatedly 
made clear, “appellate courts do not sit as 
self-directed boards of legal inquiry and 
research, but essentially as arbiters of le­
gal questions presented and argued by the 
parties before them.” Carducci v. Regan, 
714 F.2d 171, 177 (D.C.Cir.1983). Where, 
as here, “counsel has made no attempt to 
address the issue, we will not remedy the 
defect, especially where, as here, impor­
tant questions of far-reaching significance 
are involved.” Id. (internal quotation 
marks omitted).

Even were they not forfeited, the dis­
sent’s concerns would not have satisfied 
the standards for mounting a facial consti­
tutional challenge. Such a challenge, the 
Supreme Court has made clear, is “the 
most difficult . . .  to mount successfully, 
since the challenger must establish that no 
set of circumstances exists under which 
the Act would be valid.” Salerno, 481 U.S. 
at 745, 107 S.Ct. 2095. Yet the amend­
ments, as well as the Supreme Court’s 
concern that section 5 may sometimes re­
quire otherwise impermissible race-con­
scious decisionmaking, are implicated only 
in a subset of cases. Specifically, the 
amendment overturning Bossier II is im­
plicated only in cases involving a discrimi­



884 679 FEDERAL REPORTER, ,Sd SERIES

natory but non-retrogressive purpose, see 
42 U.S.C. § 1973c(c); the amendments 
overturning Georgia v. Ashcroft, like the 
Supreme Court's concern about race-con­
scious decisionmaking, are implicated pri- 
maiily in redistricting cases where section 
5 seems to require consideration of race as 
a “ ‘predominant factor.’ ” See Nw. Austin, 
129 S.Ct. at 2512 (quoting Georgia v. Ash­
croft, 539 U.S. at 491, 123 S.Ct. 2498 (Ken­
nedy, J., concurring)); 42 U.S.C. 
§ 1973c(b), (d). In other- words, even as­
suming the dissent is correct, it would not 
have established that “no set of circum­
stances exists under which the Act would 
be valid,” Salerno, 481 U.S. at 745, 107 
S.Ct. 2095. Indeed, addressing the dis­
sent’s arguments would lead us into the 
very kind of “speculation” and “antici- 
pat[ion]” of constitutional questions that 
require courts to “disfavor-! ]” facial chal­
lenges. Wash. State Grange v. Wash. 
State Republican Party, 552 U.S. 442, 450, 
128 S.Ct. 1184, 170 L.Ed.2d 151 (2008) 
(internal quotation marks omitted).

IV.
In Northwest Austin, the Supreme 

Court signaled that the extraordinary fed­
eralism costs imposed by section 5 raise 
substantial constitutional concerns. As a 
lower- federal court urged to strike this 
duly enacted law of Congress, we must 
proceed with great caution, bound as we 
are by Supreme Court precedent and con­
fined as we must be to resolve only the 
precise legal question before us: Does the 
severe remedy of preclearance remain 
“congruent and proportional”? The legis­
lative record is by no means unambiguous. 
But Congress drew reasonable conclusions 
from the extensive evidence it gathered 
and acted pursuant to the Fourteenth and 
Fifteenth Amendments, which entrust 
Congress with ensuring that the light to 
vote—surely among the most important 
guarantees of political liberty in the Con­
stitution—is not abiidged on account of

race. In this context, we owe much defer­
ence to the considered judgment of the 
People’s elected representatives. We af­
firm.

So ordered.

WILLIAMS, Senior Circuit .Judge, 
dissenting:

Section 5 of the Voting Rights Act im­
poses rather extraordinary burdens on 
“covered” jurisdictions—nine states (and 
every jurisdiction therein), plus a host of 
jurisdictions scattered through several oth­
er states. See Voting Section, U.S. Dep’t 
of Justice, Section 5 Covered Jurisdictions, 
http://www.justice.gov/crt/about/vot/sec_5/ 
covered.php (last visited May 9, 2012) (list­
ing the covered jurisdictions). Unless and 
until released from coverage (a process 
discussed below), each of these jurisdic­
tions must seek the Justice Department’s 
approval for- every contemplated change in 
election procedures, however trivial. See 
42 U.S.C. § 1973c. Alternatively, it can 
seek approval from a three-judge district 
court in the District of Columbia. See id. 
Below I’ll address the criteria by which the 
Department and courts assess these pro­
posals; for now, suffice it to say that the 
act not only switches the burden of proof 
to the supplicant jurisdiction, but also ap­
plies substantive standards quite different 
from those governing the rest of the na­
tion.

Section 4(b) of the act states two criteria 
by which jurisdictions are chosen for this 
special treatment: whether a jurisdiction 
had (1) a “test or device” restricting the 
opportunity to register or vote and (2) a 
voter registration or turnout rate below 
50%. See 42 U.S.C. $ 1973b(b). But 
§ 4(b) specifies that the elections for which 
these two criteria are measured must be 
ones that took place several decades ago. 
The freshest, most recent data relate to 
conditions in November 1972—34 years 
before Congress extended the act for- an­

http://www.justice.gov/crt/about/vot/sec_5/


885SHELBY COUNTY, ALA. v. HOLDER
C ilc  as  679 F .3d  848 (I).C . C ir. 2012)

other 25 years (and thus 59 years before 
the extension’s scheduled expiration). See 
id. The oldest data—and a jurisdiction in­
cluded because of the oldest data is every 
bit as covered as one condemned under the 
newest—are another eight years older. 
See id.

Of course sometimes a skilled dart- 
thrower can hit the bull’s eye throwing a 
dart backwards over his shoulder. As I 
will try to show below, Congress hasn’t 
proven so adept. Whether the criteria are 
viewed in absolute terms (are they ade­
quate in themselves to justify the extraor­
dinary burdens of § 5?) or in relative ones 
(do they draw a rational line between cov­
ered and uncovered jurisdictions?), they 
seem to me defective. They are not, in my 
view, “congruent and proportional,” as re­
quired by controlling Supreme Court prec­
edent. My colleagues find they are. I 
dissent.

*  *  *

Although it is only the irrational cover­
age formula of § 4(b) that I find unconsti­
tutional, it is impossible to assess that 
formula without first looking at the bur­
dens § 5 imposes on covered jurisdictions. 
Any answer to the question whether § 4(b) 
is “sufficiently related to the problem it 
targets,” Northwest Austin Municipal 
Utility Dist.. No. One v. Holder, 557 U.S. 
193, 129 S.Ct. 2504, 2512, 174 L.Ed.2d 140 
(2009), that is, whether it is “congi-uent 
and proportional,” must be informed by 
the consequences triggered by § 4(b). (I 
agree with the majority that Northwest 
Austin  “send[s] a powerful signal that con­
gruence and proportionality is the appro- 1

1. Given such a standard , I canno t u nderstand  
how  w e could apply Salerno's “ no set of c ir ­
cu m sta n ces"  test, see Maj. Op. at 883, quite 
ap a rt from  the test's questionable con tinued 
vitality, see, e.g., W ashington State Grange v. 
W ashington State Republican Party, 552 U.S. 
442, 449, 128 S.Ct. 1184, 170 L .Ed.2d 151 
(2008). Suppose Congress had actuallv  de­

pilate standard of review.” Maj. Op. at 
859.)1 The greater the burdens imposed 
by § 5, the more accurate the coverage 
scheme must be. If, for example, § 5 
merely required covered jurisdictions to 
notify the Justice Department of an im­
pending change in voting procedures, with­
out giving the Department power to delay 
or thwart implementation, even a rather 
loose coverage formula would likely appear 
proportional.

But § 5 requires much more than notice. 
For covered juiisdictions, it mandates anti- 
cipatoiy review of state legislative or ad­
ministrative acts, requiring state and local 
officials to go hat in hand to Justice De­
partment officialdom to seek approval of 
any and all proposed voting changes. See 
42 U.S.C. § 1973c(a). Since its inception, 
even supporters of the Voting Rights Act 
have recognized that the preclearance re­
gime was particularly “strong medicine” 
for a particularly extreme problem. Vot­
ing Rights Act: Hearings on H R. 61,00 
Before Subcomm. No. 5 of the House 
Comm, on the Judiciary, 89th Cong. 110 
(1905) (statement of Rep. Chelf). When it 
first upheld the VRA, the Supreme Court 
recognized it as a “complex scheme of 
stringent remedies” and § 5 in particular 
as an “uncommon exercise of congressional 
power.” South Carolina v. Katzenbach, 
383 U.S. 301, 315, 334, 86 S.Ct. 803, 15 
L.Ed.2d 769 (1966). And only a few years 
ago the Supreme Court reminded us that 
the federalism costs of § 5 arc “substan­
tial.” Northwest Austin, 129 S.Ct. at 2511.

A critical aspect of those costs is the 
shifted burden of proof (a matter I’ll dis-

signed the coverage form ula bv having the 
ch a ir of the Senate  Judiciary Com m ittee 
throw  d a rts  at a m ap and had included ever}' 
ju risd iction  w here  a dart landed. W ould we 
be expected to reject a facial challenge sim ply 
on a show ing th a t the behavior of one covered 
jurisd iction  w as so blatantly unconstitutional 
as to c iy  out for application  of § 5?



886 679 FEDERAL REPORTER, 3d SERIES

cuss below in the realm of its most signifi­
cant application). So too is the section’s 
broad sweep: § 5 applies to any voting 
change proposed by a covered jurisdiction, 
without regard to kind or magnitude, and 
thus governs many laws that likely could 
never “deny or abridge” a “minority 
group’s opportunity to vote.” See 42 
U.S.C. § 1973c(a); Allen v. State Rd. of 
Elections, 393 U.S. 544, 566, 89 S.Ct. 817, 
22 L.Ed.2d 1 (1969) (“The legislative histo­
ry on the whole supports the view that 
Congress intended to reach any state en­
actment, which altered the election law of 
a covered State in even a minor way.”). 
This obvious point is underscored by tbe 
miniscule and declining share of covered 
jurisdictions’ applications that draw Jus­
tice Department objections—with only five 
objections for every ten thousand submis­
sions between 1998 and 2002. See Richard 
L. Hasen, Congressional Power to Renew 
the Preclearance Provisions of the Voting 
Rights Act After Tennessee v. Lane, 192 
O hio St L.J. 177, 192 & fig.3 (2005) (noting 
that the Department's objection rate has 
“been falling steadily” ever since the early 
years of the VRA and equaled 0.05% be­
tween 1998 and 2002). In the vast majori­
ty of cases, then, the overall effect of § 5 is 
merely to delay implementation of a per­
fectly proper law.

Of course the most critical features of 
§ 5 are the substantive standards it ap­
plies to the covered jurisdictions. Wheth­
er a proposed voting change can be pre­
cleared turns on whether it would have a 
retrogressive effect on minority voters. 
See Beer v. United States, 425 U.S. 130, 
141, 96 S.Ct. 1357, 47 L.Ed.2d 629 (1976). 
In practice this standard requires a juris­
diction not only to engage in -some level of 
race-conscious decisionmaking, but also on 
occasion to sacrifice principles aimed at

2. The discourse revolving around § 5 invari­
ably assum es that m em bers of a m inority 
have virtually identical in terests and prefer

depoliticizing redistricting. Suppose a 
covered jurisdiction sought to implement 
what we may loosely call “good govern­
ment” principles. It might, for example, 
delegate the task of redistricting to a com­
puter programmed to apply criteria such 
as compactness, contiguity, conformity to 
existing political boundaries, and satisfac­
tion of one person, one vote requirements. 
Despite these worthy goals, the resulting 
plan, if it happened to reduce the number 
of majority-minority districts, would fail 
preclearance, as the government acknowl­
edged at oral argument. See Tr. of Or al 
Arg. at 37-38. As Justice Kennedy cau­
tioned in Georgia v. Ashcroft, 539 U.S. 461, 
123 S.Ct. 2498, 156 L.Ed.2d 428 (2003), 
“[Cjonsiderations of race that would doom 
a redistricting plan under the Fourteenth 
Amendment . . .  seem to be what save it 
under § 5.” Id. at 491, 123 S.Ct. 2498 
(Kennedy, J., concurring); see also Miller 
v. Johnson, 515 U.S. 900, 927, 115 S.Ct. 
2475, 132 L.Ed.2d 762 (1995) (noting that 
Justice Department’s “implicit command 
that States engage in presumptively un­
constitutional race-based districting brings 
the Act . . . into tension with the Four­
teenth Amendment”).

Unfortunately, w'hen Congress passed 
the 2006 version of the VRA, it not only 
disregar ded but flouted Justice Kennedy’s 
concern. New subsections (b) and (d) 
were added to § 5 to overturn Georgia v. 
Ashcroft, thereby restricting the flexibility 
of states to experiment with different 
methods of maintaining (and perhaps even 
expanding) minority influence. The Geor­
gia Court had prescribed a holistic ap­
proach to § 5, instructing courts confront­
ing a proposed voting change “not [to] 
focus solely on the comparative ability of a 
minority group to elect a candidate of its 
choice,” 2 539 U.S. at 480, 123 S.Ct. 2498

ences. 1 follow that pa ttern  here, reserving 
for the end of the opinion consideration  of



SHELBY COUNTY, ALA. v. HOLDER
C ile as 679 F .3d 848 (D .C .C ir . 2012)

887

(majority opinion), but also to consider the 
“extent to which a new plan changes the 
minority group’s opportunity to participate 
in the political process” writ large, id. at 
482, 123 S.Ct. 2498. Georgia thus gave 
covered jurisdictions an opportunity to 
make trade-offs between concentrating mi­
nority voters in increasingly safe districts 
and spreading some of those voters out 
into additional districts; the latter choice, 
the Court pointed out, might increase the 
“substantive representation” they enjoy 
and lessen the risks of “isolating minority 
voters from the rest of the State” and of 
“narrowing ftheir] political influence to 
only a fraction of political districts.” Id. at 
481, 93 S.Ct. 1702; see also Samuel Issa- 
charoff, Is Section 5 of the Voting Rights 
Act a Victim of Its Own Success?, 104 
Colum. L.Rev. 1710, 1729 (2004) (express­
ing concern that § 5’s “narrow focus on 
securing the eleetability of minority candi­
dates could compromise the range of politi­
cal accords available to minority voters 
and thereby, under conditions of mature 
political engagement, actually thwart mi­
nority political gains”); David Epstein & 
Sharyn O’Halloran, Measuring the Elec­
toral and Policy Impact o f Majority-Mi­
nority Voting Districts, 43 Am. J. Pol. Sci. 
367, 390-92 (1999) (noting that overreli­
ance on majority-minority districts means 
that “moderate senators will likely be re­
placed by extremists,” undermining the 
ability to create “biraeial coalitions [which] 
are a key to passing racially progressive 
policies”). In so doing, the Court recog­
nized that a minority group might in fact 
“achieve greater overall representation . . . 
by increasing the number of representa­
tives sympathetic to the interests of minor­
ity voters,” rather than merely by electing 
the maximum possible number of repre­
sentatives dependent on securing a majori­
ty of minority votes. 539 U.S. at 483, 123 
S.Ct. 2498.

how such an assumption relates to the real

As amended, the act forecloses this 
choice. Preclearance now has an exclusive 
focus—whether the plan diminishes the 
ability of minorities (always assumed to be 
a monolith) to “elect their preferred candi­
dates of choice,” irrespective of whether 
policymakers (including minority ones) de­
cide that a group’s long-term interests 
might be better served by less concentra­
tion—and thus less of the political isolation 
that concentration spawns. See 42 U.S.C. 
§ 1973c(b); id. § 1973c(d); see also Texas 
v. United States, 831 F.Supp.2d 244, at 
250-51, 2011 WL 6440006, at *4 (D.D.C. 
Dec. 22, 2011) (interpreting the amended 
law to overturn Georgia). The amended 
§ 5 thus not only mandates race-conscious 
decisionmaking, but a particular brand of 
it. In doing so, the new § 5 aggravates 
both the federal-state tension with which 
Northwest Austin  was concerned and the 
tension between § 5 and the Reconstruc­
tion Amendments’ commitment to nondis­
crimination.

Another 2006 amendment makes the § 5 
burden even heavier. Section 5 prohibits 
preclearance of laws that have the “pur­
pose” of “denying or abridging the right to 
vote on account of race or color.” 42 U.S.C. 
5 1973c(a). The Court had interpreted 
“purpose” to be consistent with § 5’s ef­
fects prong, so that the term justified de­
nying preclearance only to changes with a 
“retrogressive” purpose, rather- than 
changes with either that or a discriminato­
ry purpose. See Reno v. Bossier Parish 
School Bd„ 528 U.S. 320, 341, 120 S.Ct. 
8 6 6 , 145 L.Ed.2d 845 (2000) (“Bossier II  ”). 
The 2006 amendments reversed that deci­
sion, specifying that “purpose” encom­
passed “any discriminatory purpose.” 42 
U.S.C. § 1973c(c) (emphasis added). This 
broadening of the § 5 criteria may seem 
unexceptionable, but the Court had previ­
ously found that assigning covered juris­
dictions the burden of proving the absence

world and to the 15th Amendment.



888 679 FEDERAL REPORTER, 3d SERIES

of discriminatory purpose was precisely 
the device Lhat the Department had em­
ployed in its pursuit of maximizing majori­
ty-minority districts at any cost: “The key 
to the Government’s position, which is 
plain from its objection letters if not from 
its briefs to this court . . ., is and always 
has been that Georgia failed to proffer a 
nondiscriminatory purpose for its refusal 
in the first two submissions to take the 
steps necessary to create [an additional] 
majority-minority district.” Miller, 515 
U.S. at 924, 115 S.Ct. 2475. By inserting 
discriminatory purpose into § 5, and re­
quiring covered jurisdictions affirmatively 
to prove its absence, Congress appeal's to 
have, at worst, restored “the Justice De­
partment’s implicit command that States 
engage in presumptively unconstitutional 
race-based districting,” id. at 927, 115 
S.Ct. 2475, and at best, “exacerbate[d] the 
substantial federalism costs that the pre­
clearance procedure already exacts,” Bos­
sier II, 528 U.S. at 336, 120 S.Ct. 8 6 6 .

The majority correctly notes that Shelby 
did not argue that either of these amend­
ments is unconstitutional. See Maj. Op. at 
883. Neither do I. Appellant does argue 
however that § 4(b) is unconstitutional, 
that is, that § 4(b) is not a congruent and 
proportional response to the problem cur­
rently posed by voting discrimination. To 
answer that question one must necessarily 
first assess the severity of the conse­
quences of coverage under S 4(b) (i.e., sub­
jection to § 5 as it exists today). See 
supra at p. 885.

Whether Congress is free to impose § 5 

on a select set of jurisdictions also depends 
in part, of course, on possible shortcomings 
in the remedy that § 2  provides for the 
country as a whole. That section creates a 
right to sue any jurisdiction to stop voting 
practices that “resultf ] in a denial or 
abridgement” of the right to vote “on ac­
count of race or color.” 42 U.S.C.
§ 1973(a). Doubtless the section is less

drastic a remedy than § 5 (and thus by 
some criteria less effective). But it is easy 
to overstate the inadequacies of § 2 , such 
as cost and the consequences of delay. 
Compare Maj. Op. at 872. Unlike in most 
litigation, plaintiffs’ costs for § 2  suits can 
in effect be assumed by the Department of 
Justice by its either exercising its authori­
ty to bring suit itself, see, e.g., United 
States v. Blaine County, 363 F.3d 897 (9th 
Cir.2004), or by intervening in support of 
the plaintiff, as it often does. See, e.g., 
Broum v. Bd. of School Comm’rs, 706 F.2d 
1103, 1107 tilth  Cir.1983). So far as De­
partmental resource constraints are con­
cerned, narrowing § 5’s reach would, as a 
matter of simple arithmetic, enable it to 
increase § 2  enforcement with whatever 
resources it stopped spending on § 5. For 
those cases where the Justice Department 
still fails to intetvene, § 2  provides for 
reimbursement of attorney and expert fees 
for prevailing parties. See 42 U.S.C. 
§ 19731(e). Finally, as to the risk that 
discriminatory practices may take hold be­
fore traditional litigation has inn its 
course, courts may as always use the stan­
dard remedy of a preliminary injunction to 
prevent irreparable haim caused by adju­
dicative delay. See Perry v. Perez, ----
U .S.----- , 132 S.Ct. 934, 942, 181 L.Ed.2d
900 (2012).

Indeed, the ubiquitous availability of § 2  

is of course a reminder that § 5 was creat­
ed for the specific purpose of overcoming 
state and local resistance to federal anti- 
discrimination policy. When the Supreme 
Court first upheld the act in 1966, it found 
that § 5 was necessary because “case-by­
case litigation,” now governed by § 2 , was 
“inadequate to combat the widespread and 
persistent discrimination in voting.” Kat- 
zenbach, 383 U.S. at 328, 8 6  S.Ct. 803. 
While § 2 was tailored to redress actual 
instances of discrimination, § 5 was craft­
ed to overcome a “century of systematic



SHELBY COUNTY, ALA. v. HOLDER
C ite  as 679 F .3d 848 (D C. C ir. 2012)

889

resistance to the Fifteenth Amendment” 
and ongoing “obstructionist tactics.” Id.

But life in the covered jurisdictions has 
not congealed in the 48 years since the 
first triggering election (or the 40 years 
since the most recent). “[CJurrent bur­
dens . . . must be justified by current 
needs,” Northwest Austin, 129 S.Ct. at 
2512, and the burden imposed by § 5 has 
only grown heavier in those same years.

In order for § 4(b) to be congruent and 
proportional then, the disparity in current 
evidence of discrimination between the 
covered and uncovered jurisdictions must 
be proportionate to the severe differential 
in treatment imposed by § 5. Put another 
way, a distinct gap must exist between the 
current levels of discrimination in the cov­
ered and uncovered jurisdictions in order 
to justify subjecting the former group to 
§ 5’s harsh remedy, even if one might find 
§ 5 appropriate for a subset of that group. 

* * *

I now turn to assessing the evidence 
used to justify the § 4(b) coverage formu­
la. The parties have offered no sophisti­
cated statistical analysis of voting dis­
crimination in the covered and uncovered 
jurisdictions, and what follows does not 
purport to fill the sophistication.gap.

The data considered are drawn from the 
evidence the parties have cited, as well as 
the more general set compiled by Con­
gress, especially data the Supreme Court 
has previously found important. For in­
stance, when it upheld the preclearance 
regime in 1980, the Supreme Court noted 
both the “significant disparity” that still 
existed between African-American and 
white voter registration rates, and the fact 
that the number of black elected officials 
in covered jurisdictions “fell far short of 
being representative” of the number of

3. All the charts  exclude Michigan and New 
Hampshire , both partially covered states, be ­
cause the few small townships covered consti-

Afriean-Americans residing in covered ju­
risdictions. City of Rome v. United 
States, 446 U.S. 156, 180-81, 100 S.Ct. 
1548, 64 L.Ed.2d 119 (1980). Beyond vot­
er registration and black elected officials, 
the parties point us to comparative, state- 
by-state data detailing the number of fed­
eral observers sent into states to oversee 
elections, plus the number of successful 
§ 2  lawsuits. I take each of these in turn. 
Voter Registration and Turnout

Section 4(b)’s coverage formula is 
keyed to two indicators of voter access: 
voter turnout and the use of tests and 
devices in voter registration. See 42 
U.S.C. § 1973b(b). In 1966 the Supreme 
Court characterized the VRA as “specifi­
cally designed” to remedy the “misuse of 
tests and devices” that characterized the 
“widespread and persistent discrimination” 
at the time. Katzenbach, 383 U.S. at 331, 
8 6  S.Ct. 803. Section 5 was thus meant, at 
the very least, to ensure that members of 
minority groups had equal access to the 
voting booth.

Figures I and I I 3 focus on this central 
problem. The two charts compare white 
and black registration and turnout rates in 
the 2004 election, using state-by-state esti­
mates from the U.S. Census Bureau. See 
U.S. Census Bureau, Reported Voting and 
Registration of the Total Voting-Age Pop­
ulation, at tbl.4a, available at http://www. 
census .goWh h esAvww/socdemcVvoti ng/ 
publications/p20/2004/tables.html. Each 
chart takes the number of non-Hispanic 
whites who registered or turned out as a 
proportion of the total citizen voting-age 
population (“CVAP”) and compares that 
ratio to the same ratio for the black popu­
lation, i.e., it displays the ratio o f these two 
ratios for each state. Thus the greater 
the ratio (and the further to the left on the

tute only a minute portion of those stales and, 
as far  as I can tell, have never been the 
subject of a § 5 action.

http://www


890 679 FEDERAL REPORTER, 3d SERIES

chart), the greater' the racial disparity. 
The chart excludes states where the Cen­
sus Bureau was unable to make reliable 
estimates of black registration and turnout

rates (presumably because the black popu­
lation was too small to get a sufficient 
sample) .4

r

c
(0

'C
<b
£
<
c
TOU

<
o

0) ct
(5 r  ^

S “ ! s
g !  i s
LL (T3

£  ‘Sorft Or
‘oo ^
Or
cc 
or

O D.a  o
<1/
no a» 
<  fc& 
tk>
c tficO '£
>  o 
« > .tr

00

o

</>
*uo
o>ou

Jr
5

O
o
<T3
cr

o>
T3a>

v a>
U*>

ClO So4>
QC £X 

j*4- U
-E J2
5 ?
o OU;r a>
£ XI

1?o
Of>0 0  u  £1 0> ♦*

t(i
Cl

d

e e

■31

13
V M

s i  
5 3
5 1
* £

? gMi «

5 *

s .? 
8 S

ii I§

4. The only covered jurisdictions excluded are 
Alaska, New Hampshire, and South Dakota. 
Of those, only Alaska is a fully covered state. 
The o ther  states excluded for w ant of data are 
Hawaii , Idaho, Iowa, Kansas, Maine, Mon­

tana, Nebraska , New Mexico, North Dakota, 
Oregon, Rhode Island, Utah, Vermont,  West 
Virginia, and Wyoming.



SHELBY COUNTY, ALA. v. HOLDER
C ite  as  679 F .3d 848 (D C. C ir. 2012)

QJ-4-*

or

.—. ->•
d.o dCl oCL

'1'< Cifl
so <
c rio
o *->
> o>
*->* jm u
$

JT3
CD

U J
cc
D

LL.

<
o+->
0J
co
cc

-n
P  £oCNJ

TJ4;
O>
oJZ

3
o
c

id O
0)

$
o
o
fO
a:

s

! ¥ 
5 
*

5 
|  

: 3
5

. g
I 3 

21
! X

V
p

I

891

There appears to be no positive correla­
tion between inclusion in § 4(b)’s coverage 
formula and low black registration or turn­
out. Quite the opposite. To the extent 
that any correlation exists, it appears to be 
negative—condemnation under § 4(b) is a 
marker of higher black registration and 
turnout. Most of the worst offenders— 
states where in 2004 whites turned out or 
were registered in significantly higher pro­
portion than African-Americans—are not 
covered. These include, for example, the 
three worst—Massachusetts, Washington, 
and Colorado. And in Alabama and Mis­
sissippi, often thought of as two of the

worst offenders, African-Americans 
turned out in greater proportion than 
whites.
Black Elected Officials 

The other metric that the Rome Court 
considered was the number of black elect­
ed officials. Figure III uses U.S. Census 
Bureau data from 2000 and a state-by­
state breakdown of such officials from that 
same year and displays the number of 
African-Americans who had been elected 
to office as a proportion of their share of 
the total CVAP in a given state. See 
David A Bostis, Joint Ctr. for Pol. & Econ. 
Studies, Black Elected Officials: A Statis­



892 fi79 FEDERAL REPORTER, 3d SERIES

tical Summary 2000, available at http:// 
www.jointcenter.org/research/black- 
elected-offieials-a-statistical-summai"y- 
2000; U.S. Census Bureau, Voting-Age 
Population and Voting-Age Citizens, at 
this.1-1 & 1-3, available at http://www. 
census.gov/population/www/cen200 0 /briefs/

phc-t31/index.html. Thus, the higher the 
percentage (and accordingly the further to 
the light on the chart), the closer African- 
Americans’ share of elected positions is to 
equaling their share of the CVAP. States 
where the African-American share of 
CVAP was less than 3% are excluded.

0)
-C

o
a>
i—TO

JC
l/>
oJT0
ca

ooo

co

UJ
cc
o
e?

o
U J
CO

</>
<5
\ j
itz
o
■a
cu+->vjat

u_ro
ca
*4—o
o
IV

cc

Da. o . a . 
a> ao 

<
00 
C '
*4o
>
c
aiM

<-> z

Cloa.
ai

>

CLOa .

g
a
$
5
3
*

c
ns

o
*m
cro

< L_ JC >
o o < Ui
CO
o

c

I
<y
o>o

o>
oKJ U

01
OJ-C

_4)
j

o
o2

um
be

l

—
U > «-0 2 u D

CD "5 V. V«-» E z
2: n m .Cl f?

'

V> w
41 C"O

a  •  Suj E >
* <  u

6
1

I  at  8 s

|  ill 
| 2 - l
5 s 2 5
t i n
i i  fS « 5 i
i i i i
» - * V5 #
V 2  I  * * € * {
" S I 2Hi I
« 5 2 s
* |  y l
* ne l l !
n u
h i  i■C
V °

« s

Again the results are the inverse of 
S 4(b)’s presuppositions. Covered juris- 
dictions have far more black officeholders 
as a proportion of the black population 
than do uncovered ones. Of the ten states 
with the highest proportion of black elect­
ed officials relative to population, eight are

covered states, with the top five all being 
fully covered states (Virginia, Louisiana, 
South Carolina, Mississippi, and Alabama). 
Nor can the poor scores achieved by some 
uncovered states be chalked up to small 
black populations. Illinois, Missouri, Dela­
ware and Michigan, where African-Ameri­

http://www.jointcenter.org/research/black-elected-offieials-a-statistical-summai%22y-2000
http://www.jointcenter.org/research/black-elected-offieials-a-statistical-summai%22y-2000
http://www.jointcenter.org/research/black-elected-offieials-a-statistical-summai%22y-2000
http://www


SHELBY COUNTY, ALA. v. HOLDER
Cilc as 679 F .3d  848 (D C. C ir. 2012)

893

cans comprise at least 10% of the CVAP, 
all fall to the left (i.e., on the worse side) of 
eveiy one of the states fully covered by 
§ 4(b). While the relatively high number 

. of black officeholders in covered states 
might be taken as a testament to § 5 ’s 
past success, no one could credibly argue 
that the numbers are proof of the coverage 
scheme’s continued rationality.

In upholding § 5, the district court ac­
knowledged that the number of black 
elected officials had increased but found 
the nature of the positions insufficient, 
pointing particularly to the nationwide dis­
parity between the black proportion of the 
population (11.9%) and the number of 
black officials elected to statewide office 
(5%). Shelby County v. Holder, 811 
F.Supp.2d 424, 4G8-G9 (D.D.C.2011). It is 
unclear how this supports singling out the 
covered jurisdictions. Of the 35 black offi­
cials holding statewide elective office in the 
whole country in 2 0 0 0  (including 2  from 
the U.S. Virgin Islands), nearly a third (1 1 ) 
came from fully covered states, Bostis, su­
pra, at 24 tbl.7A, a proportion roughly 
equivalent to these jurisdictions’ share of 
the nation’s African-American citizen vot­
ing-age population (about 33%), see U.S. 
Census Bureau, Voting-Age Population 
and Voting-Age Citizens, supra, at tbl.1-3. 
Of course one might expect that the higher 
average African-American share of the 
population in the covered states would lead 
to a higher share of statewide elected offi­
cials. But if on that account one thinks 
there has been a shortfall in the covered 
states, it might be caused in part by the 
Justice Department’s policy of maximizing 
majority-minority districts, with the con­
comitant risks of “isolating minority voters 
from the rest of the State” and “narrowing 
[their] political influence to only a fraction 
of political districts.” Georgia v. Ashcroft, 
539 U.S. 461, 481, 123 S.Ct. 2498, 156 
L.Ed.2d 428 (2003). If African-American 
candidates primarily face solidly African- 
American constituencies, and thus develop

political personas pitched oveiwhelmingly 
to the Democratic side of the aisle, it 
would hardly be surprising that they might 
face special obstacles seeking statewide of­
fice (assuming, of course, racially-polarized 
voting, as § 5 does). See Epstein, supra, 
at 390-92.

Federal Observers

Section 8  of the VRA authorizes the 
Department to send federal observers to 
covered jurisdictions in order to enter poll­
ing places and monitor elections if “neces­
sary to enforce the guarantees of the 14th 
or 15th amendment.” 42 U.S.C. 
S 1973f(a)(2)(B). Additionally, § 3(a) per­
mits a court to authorize the appointment 
of federal obseivers in any political subdi­
vision, whether covered or uncovered, if 
the court finds it “appropriate to enforce 
the voting guarantees of the fourteenth or 
fifteenth amendment.” Id. § 1973a(a); 
see also id. § 1973f(a)(l). In an extensive 
report, the National Commission on the 
Voting Rights Act mapped the number of 
occasions these observers had been as­
signed to states in the 2 2 -year period be­
tween the prior VRA authorization (1982) 
and the 2004 election. See Nat’l Comm’n 
on the Voting Rights Act, Protecting M i­
nority Voters: The Voting Rights Act at 
Work 19S2-2005, at 61 & Map 10B (Feb. 
2006) (“Nat’l Comm’n Report”). Figure 
IV shows the state-by-state distribution of 
obseiver coverages per million minority 
residents, where the minority population is 
calculated by subtracting the non-Hispanic 
white population from the total 2004 popu­
lation, as estimated by the U.S. Census 
Bureau. See U.S. Census Bureau, Annual 
Estimates of the Population for Race 
Alone and Hispanic or Latino Origin for 
the United States and States: July 1 , 2004, 
available at http://www.census.gov/popest/ 
data/historical/2000s/vintage_2004/state. 
html.

http://www.census.gov/popest/


894 679 FEDERAL REPORTER, 3d SERIES

Superficially, Figure IV supports § 4(b), 
indicating that observers are being sent to 
covered states more often than to uncov­
ered ones. Six of the “worst” eight states 
are covered ones. But a number of factors 
undermine any serious inference. First, 
the National Commission report explains 
that it has captured “each occasion when 
federal obsei-vers are detailed to a jurisdic­
tion covered by Section 5 or Section 203.” 
Nat’l Comm’n Report at 60 (emphasis add­
ed). The apparent implication is that the 
Commission didn’t  puipoit to collect data 
for jurisdictions not covered by either of 
those sections; if so, the data are useless 
for comparative purposes. Indeed, testi­
mony before Congress suggests that the 
Civil Rights Division simply doesn’t use 
“observers” for uncovered states, prefer­

ring instead to send its own staff lawyers 
to monitor elections “[i]n areas of the 
country where Federal observers cannot 
be sent” (presumably meaning, “cannot be 
sent without the necessity and deterrent of 
getting court approval”). Voting Rights 
Act: Sections 6 and 8— The Federal E x­
aminer and Observer Program: Hearing 
Before the Subcomm. on the Constitution 
of the Comm, on the Judiciary, 109th 
Cong. 196 (2005) (statement of Bernard 
Schlozman). In fact, when calling this to 
Congress’s attention, a Department official 
noted that the “the great bulk of . . . re­
cent enforcement cases since, say 1993, 
have involved jurisdictions (e.g., Massachu­
setts, California, New York, New Jersey, 
Florida, Washington, and Pennsylvania) 
where there is no statutoi-y authority to 
send Federal observers.” Id.



SHELBY COUNTY, ALA. v. HOLDER
Cite as 679 F.3<1 848 (I).C . C ir. 2012)

895

2 8 2

Even if we were to assume the National 
Commission’s figures to be complete, and 
thus that eveiy federal observer between 
1982 and 2004 was sent to a jurisdiction 
already covered under some part of the 
VRA (either § 5 or § 203), this suggests 
another limitation on the data’s relevance: 
The same Department that administers 
§ 5 preclearance also decides where to 
send observers, so it is unsurprising that 
the covered states, which are already in 
the Department’s sights, would also re­
ceive the most observers. Finally, § 3 
forces the Justice Department to go to

8 a

coui't for authorization to assign observers 
to uncovered areas, while § 8  imposes no 
such hurdle for the covered ones, under­
mining further the data’s already question­
able value.
Successful Section 2 Lawsuits 

The final metric for which comparative 
data exist is reported, successful § 2  law­
suits. Appellees point us to a comprehen­
sive list of reported, post-1982 § 2 cases 
compiled by Professor Ellen Katz and the 
Voting Rights Initiative at the University 
of Michigan Law School. See Ellen Katz 
& The Voting Rights Initiative, VRI Data­

O
o
tO
~a >

O  cu  *-
oo

rna.

to
a;

CDto

— n>
cc
Z)
VJ

a)
-oa>

a>_Q
E
3
z:

c  8Cl

2  ~  
*00
CD O 

CC C
>  £

o
c

co
JDO
o
£

i



896 679 FEDERAL REPORTER, 3d SERIES

base Master List (2006) (“Katz Master 
List”), available at http://sitemaker.umich. 
edu/votingrights/files/masterlist.xls. Rely­
ing on these data, the district court noted 
that more than 56% of successful § 2 suits 
from 1982 to 2006 have been filed in cov­
ered jurisdictions, although those jurisdic­
tions comprise only a quarter of the na­
tion’s population. See Shelby County, 811 
F.Supp.2 d at 506.

But the persuasive power of this statistic 
dissolves when we disaggregate the data 
by state. Figure V looks at each state’s 
number of successful § 2  lawsuits between 
1982 and 2005, per million residents, using 
the same 2004 U.S. Census Bureau popula­

5. In o rd e r  to separately calculate the popula­
tions of the covered portions of par tial ly cov­
ered states (namely. New York, California, 
North Carolina, and Florida), Chart V uses 
the county-specific population es t imates from 
the U.S. Census Bureau. See U.S. Census 
Bureau, Annua] Estimates of the Resident 
Populat ion for Counties: April 1, 2000 to Julv

tion estimates used above. Because Pro­
fessor Katz’s database helpfully infoi-ms us 
whether each lawsuit was located in a cov­
ered or uncovered jurisdiction, it is possi­
ble to break out the covered portions of 
partially covered states from the uncov­
ered portions: 5 A “(C)” below the state’s 
abbreviation indicates that the data per­
tain only to the covered portion of that 
state, and an “(NC)” indicates the oppo­
site. Because one successful case in a 
covered portion of South Dakota in 24 
years produced a ratio of 43 cases for 
every hypothetical million residents, the 
covered portions of South Dakota are ex­
cluded in order to avoid distorting the 
chart’s scale.

1, 2004 , http://www.census.gov/popest/data/ 
c o u n tie s /to ta ls /2 0 0 4 /C O -E S T 2 0 0 4 -0 l.h tm l
(linking to county-specific data for these 
states and others): Voting Section, U.S. Dep't 
of Justice,  Section 5 Covered Jurisdictions, 
http://www .justice.gov/crt/about/vot/sec_5/ 
covered.php (last visited May 9, 2012).

http://sitemaker.umich
http://www.census.gov/popest/data/
http://www


SHELBY COUNTY, ALA. v. HOLDER
C ilc  as 679 F.3d 848 (D C. C ir. 2012)

897

O
ti

D
“U

vT
4-»
*3
CO * «e-
cvl i/t

c C
o a>

33 Cl
Oo *«/> Cl

>
Q>

CO
<u <b

ULi ~D &

c c <L» 4-»
CO4-*t/>

</*>
t :o
Q. c 5u . a> o

c c —
— * —/

”5
<*—
i/>
t/>

E
k_
a>

‘Si
-Si

<VW

<D CL L/">ou
3

CO

o>o

*-«•*& 5 &

* :
i i

Like the federal observer data discussed 
above, Figure V suggests that a more nar­
rowly tailored coverage formula—captur­
ing only Mississippi, Alabama, and Louisi­
ana, and possibly the covered portions of 
South Dakota and North Carolina—might 
be defensible. Rut beyond these, the cov­
ered jurisdictions appear indistinguishable 
from their uncovered peers. The five 
worst uncovered jurisdictions, including at 
least two quite populous states (Illinois 
and Arkansas), have worse records than 
eight of the covered junsdictions: the six 
covered states appearing to the right, plus

two fully covered states—Arizona and 
Alaska—which do not appear on the chart 
at all because there has been not one 
successful § 2 suit, in those states in the 
whole 24-year period. Of the ten jurisdic­
tions with the greatest number of success­
ful § 2  lawsuits, only four are covered (five 
if we add back in the covered portion of 
South Dakota). A formula with an error 
rate of 50% or more does not seem “con­
gruent and proportional.”

To bolster these numbers, the majority 
relies on an account of purportedly suc­
cessful, but unreported § 2 cases, numbers



898 679 FEDERAL REPORTER, 3d SERIES

that it rightly notes one should “approach 
. .. with caution.” Maj. Op. at 877. In­
deed, beyond the serious concerns about 
these data already elucidated by the ma­
jority (e.g., completely different groups 
gathered the data regarding covered and 
uncovered jurisdictions), we also have al­
most no infonnation for how Mr. McCrary 
and his staff identified particular cases as 
“successful” or not. All we know is that 
he required “some evidence” that the case 
was “resolved” under § 2  and “some refer­
ence” to settlement. Joint Appendix 95. 
And the inference of “success” from evi­
dence of possible settlements seems excep­
tionally weak, for both the unreported 
cases in the covered jurisdictions compiled 
by the National Commission and those 
from the uncovered jurisdictions compiled 
by Mr. McCrary. It overlooks not only 
the range of outcomes embraced in the 
concept of settlement but also the strategic 
factors, including legal fees and reputa­
tional risk, that go into a jurisdiction’s 
decision to settle.

Additionally, defenders of the coverage 
scheme point to two circumstances that 
might also artificially reduce § 2  figures 
for the covered states, namely the “block­
ing” effect of actual § 5 vetoes, and the 
deterrent effect of jurisdictions’ having to 
seek preclearance. As to blocking, there 
seems little basis to infer that many of the 
626 objections spread over 24 years were 
substitutes for successful § 2 suits. Any 
such inference is undermined by the De­
partment’s ability to almost costlessly 
“Just Say No,” the allocation of the burden 
of proof to the jurisdiction, the legal fees 
that fighting the Department will entail, 
and the difference in the substantive stan­
dards governing § 2 and § 5 proceedings.

As to the imputed deterrence, it is plain­
ly unquantifiable. If we assume that it has 
played a role, how much should we inflate 
the covered states’ figures to account for 
it, and which covered states? Given much

weight, the supposed deterrent effect 
would justify continued VRA renewals out 
to the crack of doom. Indeed, Northivest 
Austin’s insistence that “current burdens 
. .. must be justified by current needs,” 
129 S.Ct. at 2512, would mean little if § 5’s 
supposed deterrent effect were enough to 
justify the current scheme. See Tr. of 
Oral Arg. at 28, Northwest Austin M unici­
pal Utility Dist. No. One v. Holder, 5 5 7  

U.S. 193, 129 S.Ct. 2504, 174 L.Ed.2d 140 
(2009) (No. 08-322) (statement of Chief 
Justice Roberts) (“Well, that’s like the 
old—you know, it’s the elephant whistle. 
You know, I have this whistle to keep 
away the elephants. . . .  Well, there are no 
elephants, so it must work.”).

* * *

To recap, of the four metrics for which 
comparative data exist, one (voter registra­
tion and turnout) suggests that the cover­
age formula completely lacks any rational 
connection to current levels of voter dis­
crimination, another (black elected offi­
cials), at best does nothing to combat that 
suspicion, and, at worst, confinns it, and 
two final metrics (federal observers and 
§ 2  suits) indicate that the formula, though 
not completely perverse, is a remarkably 
bad fit with Congress’s concerns. Given 
the drastic remedy imposed on covered 
jurisdictions by § 5, as described above, I 
do not believe that such equivocal evidence 
can sustain the scheme.

The Supreme Court’s initial review of 
the formula in I960 provides a model for 
evaluating such an imperfect correlation. 
It assessed the evidence of discrimination 
before it and divided the covered jurisdic­
tions into three categories: (1) a group for 
which “federal courts have repeatedly 
found substantial voting discrimination”; 
(2 ) another group “for which there was 
more fragmentary evidence of recent vot­
ing discrimination”; and (3) a third set 
consisting of the “few remaining States



SHELBY COUNTY, ALA. v. HOLDER
C ite as  679 F .3d  848 (D C. C ir. 2012)

899

and political subdivisions covered by the 
formula,” for which there was little or no 
such evidence of discrimination, but whose 
use of voting tests and low voter turnout 
warranted inclusion, “at least in the ab­
sence of proof that they have been free of 
substantial voting discrimination in recent 
years.” Katzenbach, 383 U.S. at 329-30, 
8 fi S.Ct. 803. In that original review, the 
Supreme Court placed three states (Ala­
bama, Mississippi, and Louisiana) in cate­
gory one, another three (Georgia, South 
Carolina, and the covered portions of 
North Carolina) in category two, and final­
ly two fully covered states (Virginia and 
Alaska) plus a few counties in Hawaii, 
Idaho, and Arizona, in category three. '

The evidence adduced above yields a far 
worse fit than the data reviewed in Kat­
zenbach. Indeed, one would be hard- 
pressed to put any of the covered jurisdic­
tions into Ka.tzenbach’s first category. 
Based on any of the comparative data 
available to us, and particularly those met­
rics relied on in Rome, it can hardly be 
argued that there is evidence of a “sub­
stantial” amount of voting discrimination 
in any of the covered states, and certainly 
not at levels anywhere comparable to those 
the Court faced in Katzenbach. In terms 
of successful S 2 law suits, only three cov­
ered states—Mississippi, Louisiana, and 
Alabama—plus uncovered Montana—have 
more than two successful suits per million 
residents over the past quarter-century 
(excluding of course the covered portion of 
South Dakota, which scores high only be­
cause with such a small population the one 
suit there produces a high ratio per hypo­
thetical million); in fact, these three states 
are the only ones with more than 10 suc­
cessful suits in the 24 years between 1982 
and 200G.6 See Katz Master List. And of 
course, even this number may be artificial­
ly large since a successful § 2 suit does not

6. I exclude North Carolina here because four
of its ten successful suits w ere  located in

necessarily entail a finding of unconstitu­
tional behavior’ (i.e., intentionally discrimi­
natory acts); indeed, the Katz Study itself 
reports only 12  findings of intentional dis­
crimination in the covered jurisdictions 
over the same two-and-a-half decades, and 
on my reading of the cases Professor Katz 
lists, there are even fewer. See, e.g., 
Brown v. Bd. of School Comm’rs, 706 F.2d 
1103, 1107 (1 1 th Cir.1983) (listed in both 
the Senate and Katz reports as a case 
finding discriminatory intent, but the case 
finds such intent only as to an electoral 
system enacted in 1876 ).

Even assuming that these small num­
bers would qualify as “fragmentary evi­
dence” adequate to place those three in 
Katzenbach’s second category, that leaves 
six fully covered states (plus several juris­
dictions in partially cover ed states) in cate­
gory three, many more than in 1966, when 
only two fully covered states (Virginia and 
Alaska) were not included in either catego­
ry one or two. See Katzenbach, 383 U.S. 
at 318, 329-30, 8 6  S.Ct. 803. A coverage 
scheme that allows two or three of the 
worst offender’s to drag down other cov­
ered jurisdictions, whose continued inclu­
sion is merely a combination of historical 
artifact and Congress’s disinclination to 
update the formula, can hardly be thought 
“congruent and proportional.” See Na­
thaniel Persily, The Promise and Pitfalls 
of the New Voting Rights Act, 117 Y ale  
L.J. 174 , 208-09 (2007) (concluding that 
any “debate over1 the coverage formula” 
would “likely have led to the complete 
unraveling” of the VRA’s 2006 reauthoriza­
tion campaign); id. at 208 (“The most one 
can say in defense of the formula is that it 
is the best of the politically feasible alter­
natives. . . .  ”). Congress’s inability to 
agree on a currently coherent formula is

uncovered port ions of the state. See Katz
Master  List.



900 679 FEDERAL REPORTER, 3d SERIES

not a good reason for upholding its exten­
sion of an anachronism.

Moreover, the Court in 1966 relied on 
rather a natural inference from the data 
available. The tight relationship between 
the two trigger criteria (i.e., voter turnout 
and the use of voting “tests and devices”) 
and evidence of discrimination in the states 
in categories one and two, made it logical 
to suppose that Congress reasonably in­
ferred a comparable fit for the remaining 
covered jurisdictions for which direct evi­
dence of discrimination was missing (i.e., 
those in category three). But today the 
trigger criteria have lost any inherent link 
to the key concern. The newest triggering 
data hark back to 1972, 34 years before 
the current formula was enacted, and 
nearly 60 years before the current act 
expires. Indeed, if the formula were to be 
updated to use more recent election data, 
it would cover only Hawaii. See 152 C ong. 
Rf.c. H5131, H5181 (daily ed. July 13, 
2006).

More critically, the Court’s acceptance 
of the § 4(b) formula in 1966 was explicit­
ly based on certain reasonable under­
standings of § 5’s focus. Explaining why 
it saw no serious problem in the challeng­
ers’ claim of underinclusiveness— $ 4 (b)’s 
exclusion of localities not employing “tests 
or devices” but showing evidence of voting 
discrimination by other means—the Court 
obsei-ved that Congress had learned that 
persistent discrimination “has typically en­
tailed the misuse of tests and devices, and 
this was the evil for which the new reme­
dies were specifically designed.” Katzen- 
bach, 383 U.S. at 331, 8 6  S.Ct. 803 (em­
phasis added). Despite § 5’s language 
imposing preclearance on all manner of 
voting rules not within the act’s definition 
of “tests or devices,” the Court under­
standably saw the act as focused on, or in 
its words “specifically designed” for, root­
ing out “the misuse of tests and devices.” 
But § 5 litigation no longer centers at all

on “tests and devices.” Instead, the ma­
jority of § 5 objections today concern re­
districting. See Peyton McCrary et al., 
The Law of Preclearance: Enforcing Sec­
tion 5, in T he F uture of the V oting 
R ights Act 2 0 , 25 tbl.2.1 (David Epstein et 
al. eds., 2006) (redistricting objections 
comprised only 17% of Justice Depart­
ment objections in the 1970s; in the '90s, 
they constituted 52% of all objections). 
Accordingly, quite apart from the trigger 
criteria’s hopeless fossilization, the intrin­
sic link between them and their conse­
quences has ceased to exist.

Nor is the coverage formula materially 
helped by the VRA’s bailout provision. 
Although Katzenbach did note that 
§ 4(a)’s bailout provision might alleviate 
concerns about ovcrinclusiveness, see 383 
U.S. at 331, 8 6  S.Ct. 803, its ability to act 
as a reliable escape hatch is questionable. 
In its original form, § 4(a) essentially per­
mitted bailout for any jurisdiction that had 
not used a voting “test or device” in the 
previous five years. See Voting Rights 
Act of 1965, Pub.L. 89-110, § 4(a), 79 Stat. 
437, 438. This in effect excluded any cov­
ered jurisdiction whose record was not 
clean as of the date of initial enactment, 
and until 1982 the later reenactments’ lan­
guage continued that effect (i.e., allowed 
access to bailout only for those jurisdic­
tions with clean records as of the VRA’s 
initial adoption). While the majority cor­
rectly notes that the 1982 amendments 
relaxed that constraint, see Maj. Op. at 
855-56, those same amendments tightened 
the remaining substantive standards. A 
covered jurisdiction can now obtain bailout 
if, and only if, it can demonstrate that, 
during the preceding ten years, it has 
(simplifying slightly): (1) effectively en­
gaged in no voting discrimination (proven 
by the absence of any judicial finding of 
discrimination or even a Justice Depart­
ment “objection” (unless judicially over­
turned)); (2 ) faithfully complied with § 5



SHELBY COUNTY, ALA. v. HOLDER
C ilc as 679 F.3tl 84R (I).C . C ir. 2012)

901

preclearance; (3) “eliminated voting proce­
dures and methods of election which inhi­
bit or dilute equal access to the electoral 
process”; and (4) engaged in “constructive 
efforts to eliminate intimidation and 
harassment of persons exercising rights 
protected” under the act and “in other 
constructive efforts, such as the expanded 
opportunity for convenient registration.” 
42 U.S.C. § 1973b(a)(l). Perhaps because 
of these opaque standards, actual bailouts 
have been rare; only 136 of the more than 
1 2 ,0 0 0  covered political subdivisions (i.e., 
about 1%) have applied for bailout (all 
successfully). Appellant’s Reply Br. 37; 
Voting Section, U.S. Dep’t of Justice, Ter­
minating Coverage Under the Act’s Spe­
cial Provisions, http://www.justice.gov/crV 
about/vot/misc/sec_4.php# bailout (last vis­
ited May 9, 2012) (listing successful bail­
outs). Moreover, a successful action un­
der § 4(a) does not actually end federal 
oversight of bailed-out jurisdictions; for a 
decade after bailout, the court “retain[s] 
jurisdiction” just in case the Justice De­
partment or “any aggrieved person” 
wishes to file a motion “alleging that con­
duct has occuired which . . . would have 
precluded” bailout in the first place. 42 
U.S.C. § 1973b(a)(5).

All of this suggests that bailout may be 
only the most modest palliative to § 5’s 
burdens. One scholar hypothesizes that 
bailout may “exist[ ] more as a fictitious 
way out of coverage than [as] an authentic 
way of shoring up the constitutionality of 
the coverage formula.” Persily, supra, at 
213. In fairness, the same scholar also 
entertains various other explanations, in­
cluding the possibility that the eligible ju ­
risdictions are just the ones for whom § 5 
poses only a very light burden, see id. at 
213-14, and ultimately concludes that no 
one knows which theory “best explains the 
relative absence of bailouts,” id. at 214. 
Regardless of the reason for the trivial 
number of bailouts, irrational rules—here 
made so by their encompassing six states

and numerous additional jurisdictions not 
seriously different from the uncovered 
states—cannot be saved “by tacking on a 
waiver procedure” such as bailout. 
ALLTEL Corp. v. FCC, 838 F.2d 551, 561 
(D.C.Cir.1988); cf. U.S. Telecomm. Ass’n 
v. FCC, 359 F.3d 554, 571 (D.C.Cir.2004).

Finally the government argues that be­
cause the VRA is meant to protect the 
fundamental right of racial minorities (i.e., 
a suspect classification), a heightened lev­
el of deference to Congress is in order. 
Appellees’ Br. 22-23. Purportedly sup­
porting this proposition is Chief Justice 
Rehnquist’s statement in Nevada Dep’t of 
Human Resources v. Hibbs, 538 U.S. 721, 
123 S.Ct. 1972, 155 L.Ed.2d 953 (2003), 
that when a statute is designed to protect 
a fundamental right or to prevent discrim­
ination based on a suspect classification, 
“it [is] easier for Congress to show a pat­
tern of state constitutional violations.” 
Id. at 736, 123 S.Ct. 1972. But the pas­
sage simply makes the point that where a 
classification is presumptively invalid (e.g., 
race), an inference of unlawful discrimina­
tion follows almost automatically from 
rules or acts that differentiate on the pre­
sumptively forbidden basis, whereas for 
classifications judged under the “rational 
basis” test, such as disability or age, 
“Congress must identify, not just the exis­
tence of age- or disability-based state de­
cisions, but a widespread pattern of irra- 
tional reliance on such criteria.” Id. at 
735, 123 S.Ct. 1972 (emphasis added). 
This special element of race or other pre­
sumptively unconstitutional classifications 
has no bearing on review of whether Con­
gress’s remedy “fits” the pi-oven pattern 
of discrimination. To hold other-wise 
would ignore completely the “vital princi­
ples necessaiy to maintain separation of 
powers and the federal balance” that the 
Court held paramount in Boeme (which of 
course also involved a fundamental right, 
namely the right to practice one’s reli-

http://www.justice.gov/crV


902 679 FEDERAL REPORTER, 3d SERIES

gion). City of Boeme v. Flores, 521 U.S. 
507, 536, 117 S.Ct. 2157, 138 L.Ed.2d 624 
(1997).

* * *

A current political dispute—state adop­
tions of voter identification requirements— 
highlights the oddity of § 4(b). In 2005, 
the state of Indiana enacted a law requir­
ing its citizens to present a government- 
issued photo identification before voting. 
Against a variety of legal challenges, the 
Supreme Court upheld the law. See 
Crawford v. Marion County Election Bd., 
553 U.S. 181, 128 S.Ct. 1610, 170 L.Ed.2d 
574 (2008). In 2011, Texas and South 
Carolina both passed similar laws. See 
Gina Smith, Haley Signs Voter ID Bill 
into Law, T he State, May 18, 2011; Som­
mer Ingram, Gov. Rick Perry Signs Voter 
ID Bill into Law, Assoc. P ress, May 27, 
2 0 1 1 , available at http://www.yumasun. 
com/articles/peny-51036-monitortx-rick- 
austin.html. But because of those states’ 
inclusion under § 4(b), they had to look to 
Justice Department attorneys in Washing­
ton to seek further approval. In the end, 
the Department blocked both laws. See 
Jerry Markon, S.C.’s Voter ID Law Reject­
ed, W ash. P ost, Dec. 24, 2011, at A4; Dan­
iel Gilbert, Election 2012: Texas Law Re­
quiring Voter IDs Is Blocked, W all St . J., 
Mar. 13, 2012, at A4.

Why should voter ID laws from South 
Carolina and Texas be judged by different 
criteria (at a minimum, a different burden 
of persuasion, which is often critical in 
cases involving competing predictions of 
effect) from those governing Indiana? A 
glimpse at the charts shows that Indiana 
ranks “worse” than South Carolina and 
Texas in registration and voting rates, as 
well as in black elected officials (Figures I,
II and III). As to federal observers, 
Indiana appears clearly “better”—it re­
ceived none (Figure IV). As to successful 
§ 2  suits South Carolina and Texas are 
“worse” than Indiana, but all three are

below the top ten offenders, which include 
five uncovered states (Figure V). This 
distinction in evaluating the different 
states’ policies is rational?

Despite a congressional record of over 
15,000 pages and 22 hearings, Shelby 
County, 811 F.Supp.2d at 496, there is 
little to suggest that § 4(b)’s coverage for­
mula continues to capture jurisdictions 
with especially high levels of voter discrim­
ination. To the extent that the answer is, 
as the district court suggested, that Con­
gress wished to “continue to focus on those 
jurisdictions with the worst historical rec­
ords of voting discrimination,” id., at 506, 
such an oveiwhelming focus on historical 
practices appears foreclosed by Northwest 
Austin’s requirement that current burdens 
be justified by current needs.

It goes without saying that racism per­
sists, as evidenced by the odious examples 
offered by the majority, see Maj. Op. at 
865-66. But without more evidence distin­
guishing current conditions in the covered 
jurisdictions from those in the uncovered 
ones, § 4(b)’s coverage formula appears to 
be as obsolete in practice as one would 
expect, in a dynamic society, for markers 
34-to-59 years old. Accordingly, I dis­
sent.

* * *

The analysis above is my sole basis for 
finding § 4(b) of the VRA unconstitutional 
and thus for dissenting from the court’s 
opinion. I need not and do not reach the 
constitutionality of § 5 itself. But before 
concluding, I want to address a critical 
aspect of § 5, and of some of the cases 
interpreting earlier versions of that sec­
tion. I address it first simply as a matter 
of language—specifically the use of lan­
guage to obscure reality—and then in rela­
tion to the words and political philosophy 
of the 15th Amendment. Though unneces­
sary to my dissent’s outcome, the troubling 
tension between the act’s encouragement

http://www.yumasun


SHELBY COUNTY, ALA. v. HOLDER
C ite  as  679 F .3d 848 (D C. C ir. 2012)

903

of racial gerrymandering and the ideals 
embodied in the 15th Amendment seems 
worthy of attention.

Section 5(b) makes unlawful any voting 
practice or procedure with respect to vot­
ing “that has the purpose of or will have 
the effect of diminishing the ability of any 
citizens of the United States on account of 
race or color . . .  to elect their preferred 
candidates of choice." 42 U.S.C. 
§ 1973c(b) (emphasis added). And of 
course similar phrasing has been included 
in § 2 since 1982. See Voting Rights Act 
Amendments of 1982, Pub.L. No. 97-205, 
§ 3, 9G Stat. 131, 134 (codified at 42 U.S.C. 
§ 1973(b)) (prohibiting policies that pre­
vent minority groups’ equal opportunity 
“to elect representatives of their choice.”).

The language (or a close equivalent) 
seems to have originated in one of the 
Court’s earliest opinions on § 5, though 
only as an offhand phrase in its explana­
tion of how a shift from district to at-large 
voting might dilute minority impact: “Vot­
ers who are members of a racial minority 
might well be in the majority in one dis­
trict, but a decided minority in the county 
as a whole. This type of change could 
therefore nullify their ability to elect the 
candidate of their choice.” Allen v. State 
Rd. of Elections, 393 U.S. 544, 569, 89 
S.Ct. 817, 22 L.Ed.2d 1 (1969). But the 
use of such language became troubling in 
Georgia v. Ashcroft, where the Court said 
that in the application of § 5 “a court 
should not focus solely on the comparative 
ability of a minority group to elect a candi­
date of its choice.” 539 U.S. 461, 480, 123 
S.Ct. 2498, 156 L.Ed.2d 428 (2003) (empha­
sis added). The “solely” of course indi­
cates approval of such a consideration as 
one among several criteria for compliance 
with § 5.

Implied from the statutory “their” is 
necessarily a “they.” In the context of a 
statute speaking of impingements on citi­
zens’ voting “on account of race or color,”

and indeed in the universally accepted un­
derstanding of the provision, the “they” 
are necessarily members of minority 
groups. Rut in what sense do minority 
groups as such have a “preferred candi­
date”? Individuals, of course, have pre­
ferred candidates, but groups (unless lit­
erally monolithic) can do so only in the 
limited sense that a majority of the group 
may have a preferred candidate. Thus, 
when the provision is translated into oper­
ational English, it calls for assuring “the 
ability of a minority group's majority to 
elect their- preferred candidates.”

This raises the question of what hap­
pened to the minority group’s own minori­
ty—those who dissent from the prefer­
ences of the minority’s majority?

Of course in any polity that features 
majority rule, some people are bound to be 
outvoted on an issue or a candidate and 
thus to “lose”—on that round of the ongo­
ing political game. Such losses are a nec­
essary function of any system requiring 
less than unanimity (which would be hope­
lessly impractical). And in an open society 
that allows people freely to form associa­
tions, and to design those associations, 
some people obviously will be members of 
associations whose representatives from 
time to time express, in their name, opin­
ions they do not share. But that again is a 
necessary function of having associations 
free to adopt a structure that empowers 
their leadership to speak with less than 
unanimous backing.

But the implied “they” of § 5 is not a 
polity in itself; nor is it an association 
freely created by free citizens. Quite the 
reverse: It is a group constructed artifi­
cially by the mandate of Congress, entirely 
on the lines of race or ethnicity.

On what authority has Congress con­
structed such groups? Purportedly the 
15th Amendment to the Constitution. But 
that says that the “right of citizens of the



904 679 FEDERAL REPORTER, 3d SERIES

United States to vote shall not be denied 
or abridged by the United States or by 
any State on account of race, color, or 
previous condition of servitude.”

It is hard to imagine language that could 
more clearly invoke universal individual 
lights. It is “citizens” who are protected, 
and they are protected from any denial of 
their lights that might be based on the 
specified group characteristics—race, col­
or, or previous condition of servitude. The 
members of Congress who launched the 
amendment, said Senator Willard Warner, 
“profess to give to each individual an equal 
share of political power.” C ong. Glode, 
40th Cong., 3d Sess. 8(51 (1869).

The 15th Amendment was a pivot point 
in the struggle for universal human rights. 
The roots of the stmggle are deep and 
obscure. Many trace the concept to the 
three great monotheistic religions, Juda­
ism, Christianity, and Islam. See, e.g., 
M ich ei.ine R. I shay, T he H istory of H uman 
R ights (2004) (noting the contributions of 
these three traditions, among others). No 
matter how spotty the actual performance 
of those religions’ adherents may have 
been over the centuries, the idea of a 
single God, claiming the allegiance of all 
mankind, surely implies a recognition of 
the dignity and worth of all humans, undis­
torted by local group loyalties historically 
linked to local gods. Perhaps the Enlight­
enment, though in tension with organized 
religion, has a better title; it is clearly the 
immediate root of the French Declaration 
of the Rights of Man and of the Citizen. 
But at all events the 15th Amendment 
states a clear national commitment to uni­
versal, individual political rights regardless 
of race or color.

Of course conventional political dis­
course often uses such terms as “the black 
vote,” “the youth vote,” “the senior vote,” 
etc. But those who use these terms— 
politicians, their consultants, pundits, jour­
nalists—know perfectly wrell that they are

oversimplifications, used to capture gener­
al political tendencies, not a justification 
for creating or assuming a political entity 
that functions through a demographic 
group’s “majority.” The Supreme Court 
has recognized that these generalizations 
are no such justification. In Shaw v. 
Reno, 509 U.S. 630, 113 S.Ct. 2816, 125 
L.Ed.2d 511 (1993), it confronted racial 
gerrymandering that took the form of in­
cluding in one district persons separated 
by geographic and political boundaries and 
who “may have little in common with one 
another but the color of their skin.” Id. at 
647, 113 S.Ct. 2816. Such a plan: 

bears an uncomfortable resemblance to 
political apartheid. It reinforces the 
perception that members of the same 
racial group—regardless of their age, 
education, economic status, or the com­
munity in which they live—think alike, 
share the same political interests, and 
will prefer the same candidates at the 
polls. We have rejected such percep­
tions elsewhere as impermissible stereo­
types.

Id.
The pre-Enlightenment history of conti­

nental Europe included just such enti­
ties—“estates,” whose members voted sep­
arately from those of the other estates. 
Most famously, separately elected repre­
sentatives of the nobility, the clergy, and 
the “common” people gathered in 1789 in 
the French Estates-General. For the last 
time. By the middle of that year, the 
Estates-General had ceased to exist. By 
transfonning itself into a National Assem­
bly, it precipitated the French Revolution 
and the permanent abolition of voting by 
estates, ultimately throughout Europe. 
The 15th Amendment can be traced back 
to that basic development. Section 5 ’s 
mandate to advance “the ability of any 
citizens of the United States on account of 
race or color . . .  to elect their 'preferred



LAROQUE v. HOLDER
C ite  a s  679 F .3d  905 (D C. C ir. 2012)

905

candidates of choice ” is a partial retreat 
to pre-Revolutionary times, an era perhaps 
now so long past that its implications are 
forgotten.

None of this is to suggest that the coun­
try need for a minute countenance deliber­
ate voting rule manipulations aimed at re­
ducing the voting impact of any racial 
group, whether in the form of restrictions 
on ballot access or of boundary-drawing. 
And in judicial proceedings to stamp out 
such manipulations, it would of course be 
no defense for the perpetrators to say that 
they sought only to downweight a minori­
ty’s majority. But a congressional man­
date to assure the electoral impact of any 
minority’s majority seems to me more of a 
distortion than an enforcement of the 15th 
Amendment’s ban on abridging the “right 
of citizens of the United States to vote .. . 
on account of race, color, or previous con­
dition of servitude.” Preventing intention­
al discrimination against a minority is radi­
cally different from actively encouraging 
racial gerrymandering in favor- of the mi­
nority (really, the majority of the minori­
ty), as § 5 does. Assuming there are 
places in which a colorblind constitution 
does not suffice as a “universal constitu­
tional principle,” Parents Involved in 
Community Schools v. Seattle School Dist. 
No. 1, 551 U.S. 701, 788, 127 S.Ct. 2738, 
168 L.Ed.2d 508 (2007) (opinion of Kenne­
dy, J.), the voting booth should not be one 
of them.

Stephen LaROQUE, et al., Appellants 

v.

Eric H. HOLDER, Jr., Attorney 
General of the United States, 

et al., Appellees.

No. 11-5349.

United States Court of Appeals, 
District of Columbia Circuit.

May 18, 2012.
Background: White voters in North
Carolina city and citizens’ group brought 
action against United States Attorney 
General, challenging government’s refusal 
under Voting Rights Act (VRA) to “pre­
clear” proposed amendment to city’s 
charter providing for nonpartisan system 
for electing mayor and city council. Afri­
can-American residents and NAACP con­
ference joined case as intervenors in sup­
port of Attorney General. Government 
moved to dismiss for lack of standing. 
The district court, 755 F.Supp.2d 156, 
granted motion. Plaintiffs appealed. The 
Court of Appeals, David S. Tatel, Circuit 
Judge, 650 F.3d 777, reversed in part, 
vacated in part, and remanded. The Unit­
ed States District Court for the District 
of Columbia, John D. Bates, J., 2011 WL 
6413850, granted summary judgment for 
defendants. Plaintiffs appealed.
Holdings: The Court of Appeals,
Williams, Senior Circuit Judge, held that:
(1) Attorney General had authority to 

withdraw VRA objection to proposed 
amendment to municipality’s charter;

(2 ) bills from state legislator were far too 
speculative to constitute continuing 
“personal stake” in validity of VRA 
preclearance provision; and

(3) prospect of new election in event of 
invalidation of VRA preclearance pro­
vision was too speculative to provide







No. 12-

I n  T H E

Supreme (Eourt of tlje United States

SHELBY COUNTY, ALABAMA,

Petitioner,

v.

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

Respondents.

O n P etition F or A W rit O f C ertiorari to 
T he U nited  S tates Court O e A ppeals 

F or T he D istrict O f C olumbia C ircuit

PETITION FOR A WRIT OF CERTIORARI

Bert W. R ein 
Counsel of Record 

W illiam S. Consovoy 
T homas R. McCarthy 
Brendan J. Morrissey 
W iley Rein LLP 

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

Attorneys fo r  Petitioner

July 20, 2012

242811

0
C O U N S E L  P R E S S  

(800) 274-3321 • (800) 359-0850

t.i

mailto:brein@wileyrein.com


QUESTION PRESENTED

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

i



VI

PARTIES TO THE PROCEEDING 
AND RULE 29.6 STATEMENT

Petitioner in this case is Shelby County, Alabama.

Respondents are Eric H. Holder, Jr., in his official 
capacity as Attorney General of the United States, and 
Earl Cunningham, H arry Jones, Albert Jones, Ernest 
Montgomery, Anthony Vines, William Walker, Bobby 
Pierson, Willie Goldsmith, Sr., Mary Paxton-Lee, Kenneth 
Dukes, A labam a S ta te  Conference of the National 
Association for the Advancement of Colored People, and 
Bobby Lee Harris.



in

QUESTION P R E S E N T E D ....................................  i

PARTIES TO THE PROCEEDING AND
RULE 29.6 STATEM ENT..................................  ii

TABLE OF CONTENTS..........................................  iii

TABLE OF A PPEN D IC ES....................................  v

TABLE OF CITED AUTHORITIES....................  vi

PETITION FOR A WRIT OF CERTIORARI.. . .  1

OPINIONS BELOW..................................................  l

JURISDICTION........................................................  l

C O N S T IT U T IO N A L  AND STA TU TO RY  
PROVISIONS INVOLVED......................................  l

INTRODUCTION......................................................  l

STATEMENT OF THE C A S E ..............................  5

A. History of the Voting Rights A ct.......... 5

1. The Voting Rights Act of 1965 ........  5

2. T he  1970, 1975, an d  1982
Reauthorizations............................  8

TABLE OF CONTENTS

Page



IV

Table o f Contents

Page
3. The 2006 Reauthorization............... 10

B. Proceedings Below.................................. 12

REASONS FOR GRANTING THE PETITIO N .. 18

I. The Constitutional Issues Presented In This 
Case Are Of Public Importance And Should
Be Settled Now By This C ourt............................ 18

I I . Review Is R equired  Because The C ourt
Of A ppeals In c o rre c tly  D ecided T hese 
Important And Unsettled Constitutional Issues 23

A. The court of appeals wrongly upheld
Sections 5 and 4 (b) by d i stor ti ng BoemeP 
“congruent and proportional” test.......  23

B. The court of appeals should not have
upheld Section 5’s preclearance obiigation 
u n d e r  a n y  a p p l i c a b l e  l e g a l  
s tandard .................................................. 25

C. The court of appeals should not have
upheld Section 4(b)’s coverage formula 
under any applicable legal standard . . .  29

CONCLUSION.......................................................... 36



V

TABLE OF APPENDICES

A P P E N D I X  A — O P I N I O N  OF T H E  
UNITED STATES COURT OF APPEALS 
FOR TH E D IST R IC T OF COLUMBI A 
CIRCUIT, DECIDED MAY 18, 2012................

APPENDIX B—MEMORANDUM OPINION OF 
THE UNITED STATES DISTRICT COURT 
FOR TH E D ISTR IC T OF COLUMBI A,  
DECIDED SEPTEMBER 21, 2011....................

APPENDI X C—MI NUTE ORDER OF U.S. 
DISTRICTCOURT,DISTRICTOF COLUMBIA, 
DATED FEBRUARY 4, 2011..............................

APPENDIX D—MEMORANDUM OPINION 
AND ORDER OF THE UNITED STATES 
DISTRICT COURT FOR THE DISTRICT OF 
COLUMBIA, DATED SEPTEMBER 16, 2010 .

A P P E N D I X  E — R E L E V A N T  
CONS T I T UT I ONAL  A M E N D M E N T  & 
STATUTORY PROVISIONS..............................

Page

la

111a

292a

294a

304a



VI

Cases

Bd. ofTrs. ofUniv. o f Ala. v. Garrett,
531 U.S. 356 (2001)........................................ 22, 23, 24

Beer v. United States,
425 U.S. 130 (1976).......................................... 6, 19, 24

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

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

Coleman v. Court, o f Appeals o f Maryland,
132 S. Ct. 1327 (2012).......................................... 22, 34

Crawford v. Marion County Election Bd.,
553 U.S. 181 (2008) . . . . . ' ...................................... 20

Florida v. United Stales,
No. 1 l-cv-1428-CKK-MG-ESH (D.D.C.)..........  19,20

Georgia v. Ashcroft,
539 U.S. 461 (2003)................................................ 10

Gregory v. Ashcroft,
501 U.S. 452 (1991)................................................ 18

Miller v. Johnson,
515 U.S. 900 (1995)................................................ 6,26

TABLE OF CITED AUTHORITIES

Page



Cited Authorities

Mistretta v. United States,
488 U.S. 361 (1989)................................................  21

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

Nw. Austin Mun. Util. Dist. No. Onev.
Mukasey,
573 F. Supp. 2d 221 (D.D.C. 2008)........................  34

Reno v. Bossier Parish Sch. Bd.,
528 U.S. 320 (2000)..........................................  9, 10, 26

Samuelsen v. Treadwell,
No. 12-cv-00118-RRB-AK-JKS (D. Alaska) . . . .  19

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

Tennessee v. Lane,
541 U.S. 509 (2004)..............................................  26, 29

Texas v. Holder,
No. 12-cv-128-RMC-DST-RLW (D.D.C.)......  19

United States v. Bd. o f Comm’rs o f Sheffield,
435 U.S. 110(1978)...................     3

vii

Page



m n

Cited Authorities

Federal Statutes and Rules

42 U.S.C. § 1973(a)...................................................  2

42 U.S.C. § 1973a(c)................................................ 2,7,35

42 U.S.C. § 1973b.......................................................  i

42 U.S.C. § 1973c.......................................................  i

42 U.S.C. § 1973c(a).................................................... 6

42 U.S.C. § 1973c(b).................................................... n

42 U.S.C. § 1973c(c).................................................... n

42 U.S.C. § 1973c(d).................................................... n

42 U.S.C. § 1973h.......................................................  2

42 U.S.C. § 19731(b).................................................... 4

42 U.S.C. § 19731(e).................................................... i6

Pub. L. No. 89-110, 79 Stat. 437 (1965)..............  passim

Pub. L. No. 91-285, 84 Stat. 314 (1970)....................  8

Pub. L. No. 94-73, 89 Stat. 400 (1975).................... 2, 8, 9

Pub. L. No. 97-205, 96 Stat. 131 (1982).................... 9

Page



IX

Table of Appendices

Pub. L. No. 109-246, 120 Stat. 577 (2006)............ 11

Sup. Ct. R. 10(c)........................................................  18

Legislative Materials

The Continuing Need for Section 5 Preclearance: 
Hearing Before the Senate Comm, on the Judiciary,
109th Cong., 2d. Sess. (May 16, 2006).................. 31

H.R. Rep. No. 91-397 (1969)......................................  8

H.R. Rep. No. 109-478 (2006)..................................  10, 27

S. Rep. No. 109-295 (2006)........................................  19

Other Authorities

Ellen Katz & The Voting Rights Initiative, VRT 
Database M aster List (2006), http://sitemaker. 
umich.edu/voting rights/files/masterlist.xls___ 33

National Conference of State Legislatures: Absentee 
and Early Voting (July 22, 2011), available at 
h ttp ://w w w .ncsl.org/legislatures-elections/ 
elections/absentee-and-early-voting.aspx

Page

20

http://www.ncsl.org/legislatures-elections/


1

PETITION FOR A WRIT OF CERTIORARI

Petitioner Shelby County, Alabama (“Petitioner”) 
respectfully submits this petition for a w rit of certiorari 
to review the judgment of the United States Court of 
Appeals for the D.C. Circuit.

OPINIONS BELOW

The opinion of the United States Court of Appeals 
for the D.C. Circuit is available at 679 F.3d 848 and is 
reprinted in the Appendix (“A pp”) at la-llOa. The opinion 
of the United States D istrict Court for the D istrict 
of Columbia is available at 811 F. Supp. 2d 424 and is 
reprinted at App. llla-291a.

JURISDICTION

The United States Court of Appeals for the D.C. 
Circuit issued its decision on May 18, 2012. App. la. This 
Court has jurisdiction under 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY 
PROVISIONS INVOLVED

The Fifteenth Amendment to the United States 
Constitution, 42 U.S.C. § 1973b, and 42 U.S.C. § 1973c are 
reprinted in the Appendix.

INTRODUCTION

Article IV and the Tenth Amendment reserve to the 
States the power to regulate elections. Notwithstanding, 
the Fifteenth Amendment authorizes Congress to enforce



2

against the States that amendment’s guarantee of the 
right to vote free from discrimination on account of race, 
color or previous condition of servitude. It is this Court’s 
duty to ensure that Congress appropriately remedies 
Fifteenth Amendment violations without usurping the 
States’ sovereign powers. Shelby County asks the Court 
to protect this important federalism interest.

C o n g ress  invoked its  F if te e n th  A m endm ent 
enforcement authority to pass the Voting Rights Act of 
1965 (“VRA”) “to banish the blight of racial discrimination 
in voting, which ha[d] infected the electoral process in 
parts of our country for nearly a century.” South Carolina 
v. Katzenbach, 3*83 U.S. 301, 308 (1966). The VRA 
established a network of prophylactic remedies designed 
to remedy unconstitutional voting discrimination. Among 
them, Section 2 creates a private right of action to enforce 
the Fifteenth Amendment and prophylactically bans 
any state practice that even unintentionally “results in a 
denial or abridgment” of voting rights. 42 U.S.C. § 1973(a). 
Congress also outlawed literacy tests, poll taxes, and other 
ballot-access restrictions being used to disenfranchise 
African-Americans, Pub. L. No. 94-73, § 102,89 Stat. 400 
(1975); 42 U.S.C. § 1973h, and passed a “bail in” provision 
that could subject any jurisdiction found to have violated 
constitutionally-protected voting rights to judicially- 
supervised preclearance, id. § 1973a(c). None of these 
enactments is challenged here.

Rather, this Petition puts at issue Congress’ decision in 
2006 to reauthorize until 2031 the preclearance obligation 
of Section 5 of the VRA under the pre-existing coverage 
formula of Section 4(b) of the VRA. The preclearance 
regim e is “one of the most ex trao rd inary  rem edial



3

provisions in an Act noted for its broad remedies” and a 
“substantial departure ... from ordinary concepts of our 
federal system; its encroachment on state sovereignty 
is significant and undeniable.” United States v. Bd. of 
Comm’rs o f Sheffield, 435 U.S. 110, 141 (1978) (Stevens, 
J-> dissenting). Section 5’s preclearance obligation goes 
far “beyond the prohibition of the Fifteenth Amendment 
by suspending all changes to state election law—however 
innocuous—until they have been precleared by federal 
authorities in Washington, D.C.” Nw. Austin  Mun. U til 
Dist. No. One v. Holder, 557 U.S. 193, 202 (2009) (“Nw. 
A ustin”). T3y singling out particu lar jurisdictions for 
coverage, Section 4(b) “differentiates between the States, 
despite our historic tradition that all the States enjoy 
equal sovereignty.” Id. at 203.

This Court has twice upheld the preclearance regime 
against facial constitutional challenge under then- 
prevailing conditions in covered jurisdictions. Katzenbach, 
383 U.S. at 303; City o f Rome v. United, States, 446 U.S. 
156 (1980). In 1966, the Court held that preclearance was 
an “uncommon exercise of congressional power” that 
would not have been “otherwise appropriate” but for the 
“exceptional conditions” and “unique circum stances” 
then documented by Congress. Katzenbach, 383 U.S. at 
334-35. The Court upheld Section 4(b)’s coverage formula 
because it accurately captured “the geographic areas 
where immediate action seemed necessary” and where 
“local evils” had led to significant Fifteenth Amendment 
violations. Id. at 328-29. The 1975 reauthorization was 
upheld given the “limited and fragile” progress that had 
been made in the decade since the VRA’s enactment. 
Rome, 446 U.S. at 182.



4

More recently, addressing the 2006 reauthorization, 
the Court recognized tha t “[s]ome of the conditions” 
that it “relied upon in upholding this statutory scheme 
in Katzenbach and City of Rome have unquestionably 
improved. Things have changed in the South. Voter turnout 
and registration rates now approach parity. Blatantly 
discriminatory evasions of federal decrees are rare. And 
minority candidates hold office at unprecedented levels.” 
Nw. Austin, 557 U.S. at 202. Moreover, the “evil that § 5 
is meant to address may no longer be concentrated in the 
jurisdictions singled out for preclearance. The statute’s 
coverage formula is based on data that is now more than 
35 years old, and there is considerable evidence that it 
fails to account for current political conditions.” Id. at 203. 
Because Congress has not since acted to rectify these 
problems, the constitutional validity of Sections 5 and 4(b) 
must now be resolved.

This Petition is the ideal vehicle to settle  these 
im portant issues. Because the D istrict Court for the 
District of Columbia (“DDC”) has exclusive jurisdiction 
over challenges to the VRA’s constitutionality, 42 U.S.C. 
§ 1973/(b), and in light of the comprehensive decisions 
and dissent below, there is nothing to be gained from 
fu r th e r vetting. Moreover, Congress has shown no 
interest in revisiting these issues in the wake of Northwest 
A ustin  and the Executive’s recent refusals to preclear 
voting changes considered rou tine in non-covered 
jurisdictions underscores the severity of the burden that 
the preclearance regime imposes on covered jurisdictions. 
Delaying review of these unsettled issues to a future case 
will only make the situation worse.



5

The Court is understandably reluctant to decide 
avoidable constitutional questions. But the Court’s “duty 
as the bulwark of a limited constitution against legislative 
encroachments” requires it to definitively settle important 
federalism questions when they are squarely presented. 
Nw. Austin, 557 U.S. at 205. The Court should grant the 
Petition.

STATEMENT OF THE CASE

A. History of the Voting Rights Act

1. The Voting Rights Act of 1965

The VRA included numerous judicially enforceable 
provisions (including Section 4(a)’s suspension of tests 
and devices) that directly confronted voting practices 
then employed throughout the South to infringe Fifteenth 
Amendment rights. But given deplorable conditions, 
Congress determ ined tha t even “s te rn e r and more 
elaborate measures” were required. Katzenbach, 383 U.S. 
at 309. “After enduring nearly a century of systematic 
resistance to the Fifteenth Amendment,” id. at 328, 
Congress was aware that adverse judgments would only 
lead offending states to adopt new discriminatory devices 
and local officials to defy court orders or simply close their 
registration offices, id. at 314.

To foreclose continuing and systematic evasions of 
constitutional guarantees, Section 5 required a “covered 
jurisdiction” to obtain preclearance before implementing 
“any voting qualification or prerequisite to voting, or 
standard, practice, or procedure with respect to voting 
different from that in force or effect on November 1,



6

1964.” Pub. L. No. 89-110, § 5, 79 Stat. 437, 439 (1965). 
The Department of Justice (“DOJ”) or the DDC could not 
preclear any change that had either “the purpose” or “the 
effect of denying or abridging the right to vote on account 
of race or color.” 42 U.S.C. § 1973c(a).

Section 5 was a radical solution to “a particular set 
of invidious practices that had the effect of undoing] 
or d e fea tin g ] the righ ts recently  won by nonwhite 
voters.” M iller v. Johnson , 515 U.S. 900, 925 (1995); 
Beer v. United States, 425 U.S. 130, 140 (1976). Unlike 
a traditional litigation remedy targeting  specific acts 
of voting discrimination, Section 5 suspended all voting 
changes pending preclearance to prevent recalcitrant 
“jurisdictions from circumventing the direct prohibitions 
imposed by provisions such as §§ 2 and 4(a).” Nw. Austin , 
557 U.S. at 218 (Thomas, J.) (concurring in the judgment 
in part and dissenting in part).

Section 4(b) relied on a form ula to identify the 
jurisdictions subject to preclearance. A state or political 
subdivision became subject to preclearance if it “maintained 
on November 1, 1964, any test or device” prohibited by 
Section 4(a) and “less than 50 per centum of the persons of 
voting age residing therein were registered on November 
1,1964” or “less than 50 per centum of such persons voted 
in the presidential election of November 1964.” Id. § 4(b), 
79 Stat. at 438. As a political subdivision of Alabama, 
Shelby County became a covered jurisdiction under this 
formula. App. 123a-124a.'

1. A l s o ,  S e c t i o n  3 ( c )  c r e a t e d  a  b a i l - i n  m e c h a n i s m  w h e r e b y  
f e d e r a l  c o u r t s  c o u l d  i m p o s e  p r e c l e a r a n c e  o n  a n y  n o n - c o v e r e d  
j u r i s d i c t i o n  f o u n d  t o  h a v e  v i o l a t e d  t h e  F o u r t e e n t h  o r  F i f t e e n t h



7

The Court upheld Section 5 as constitutional because 
of a demonstrated history of “widespread and persistent 
discrimination” and “obstructionist tactics.” Id. at 328. 
“Congress began work with reliable evidence of actual 
voting discrimination in a great majority of the States 
and political subdivisions affected by the new remedies 
of the Act.” Id. at 329. Especially given the massive racial 
disparity in registration and turnout rates, “Congress 
had every reason to conclude that States with a history 
of disenfranchising voters based on race would continue 
to do all they could to evade the constitutional ban on 
voting discrimination.” Nw. A ustin , 557 U.S. at 221 
(Thomas, J.). Preclearance—an “uncommon exercise 
of congressional power”—appropriately enforced the 
Fifteenth Amendment only because of the “exceptional 
conditions” and “unique circumstances” that Congress 
had documented. Katzenbach, 383 U.S. at 334-35.

The Court upheld Section 4(b)’s coverage formula 
on the same legislative record because it appropriately 
enforced the Fifteenth Amendment “in both practice 
and theory.” Id. at 330. The formula was sound in theory 
because “the use of tests and devices for voter registration, 
and a voting rate in the 1964 presidential election at least 
12 points below the national average” pointed to the 
“widespread and persistent” use of discriminatory tactics 
to prevent African-Americans from voting and the clear 
threat of continuing evasion. Id. at 330-31. The formula 
was sound in practice because it accurately captured those

A m e n d m e n t s .  4 2  U . S . C .  § 1 9 7 3 a ( c ) .  T h e  V R A  a l s o  i n c l u d e d  a  
“ b a i l o u t ”  p r o v i s i o n  t h a t  a l l o w e d  a  c o v e r e d  j u r i s d i c t i o n  t o  t e r m i n a t e  
c o v e r a g e  b y  m a k i n g  a  r e q u i s i t e  s h o w i n g  ( s u b j e c t  t o  a  “ c l a w  b a c k ”  
m e c h a n i s m ) .  P u b .  L .  N o .  8 9 - 1 0 0 ,  §  4 ( a ) ,  7 9  S t a t .  a t  4 3 8 .



8

jurisdictions where “reliable evidence of actual voting 
discrimination” was so severe and distinctive that the 
disparate application of preclearance was constitutionally 
justified. Id. at 329.

2. The 1970,1975, and 1982 Reauthorizations

Congress had “expected that within a 5-year period 
Negroes would have gained sufficient voting power in the 
States affected so that special federal protection would no 
longer be needed.” H.R. Rep. No. 91-397 (1969). In 1970, 
however, Congress reauthorized the temporary provisions 
of the VRA for five years, Voting Rights Act Amendments 
of 1970, Pub. L. No. 91-285,84 Stat. 314 (1970), in order “to 
safeguard the gains in negro voter registration thus far 
achieved, and to prevent future infringements of voting 
rights based on race or color,” H.R. Rep. No. 91-397 1970 
U.S.C.C.A.N. at 3281.

The 1970 reauthorization expanded the coverage 
formula to include any jurisdiction that had maintained 
a prohibited “test or device” on November 1, 1968, and 
had voter registration on that date or turnout in the 1968 
presidential election of less than 50 percent. Pub. L. No. 
91-285, § 4, 84 Stat. at 315. The statute also extended 
Section 4(a)’s ban on the use of any prohibited “test or 
device” to non-covered jurisdictions for a period of five 
years. Id. § 6, 84 Stat. at 315.

In 1975, Congress reauthorized the VRA for seven 
more years, Act of Aug. 6,1975, Pub. L. No. 94-73,89 Stat. 
400 (1975), further expanding coverage to any jurisdiction 
that had maintained a prohibited “test or device” on 
November 1,1972, and had voter registration on that date



9

or turnout in the 1972 presidential election of less than 50 
percent, id. § 202,89 Stat. at 401. Congress also extended 
the preclearance obligation to certain States and political 
subdivisions that provided electoral m aterials only in 
English in order to protect language minority groups. 
Id. § 203, 89 Stat. at 401-02, and it made permanent the 
nationwide ban on discriminatory “tests or devices.” Id 
§ 201,89 Stat. at 400.

The Court upheld the 1975 reauthorization of Section 
5, finding that a “[significant disparity persisted between 
the percentages of whites and Negroes registered in at 
least several of the covered jurisdictions” and that, “though 
the number of Negro elected officials had increased since 
1965, most held only relatively minor positions, none held 
statewide office, and their number in the state legislatures 
fell far short of being representative of the number of 
Negroes residing in the covered jurisdictions.” Rome, 446 
U.S. at 180-81. Only ten years removed fi’om Section 5’s 
enactment, the Court rejected what it viewed as a request 
to overrule the Katzenback decision. Id. at 180.

Tn 1982, Congress reauthorized the VRA for another 
25 years. Voting Rights Act A m endm ents of 1982, 
Pub. L. No. 97-205, 96 Stat. 131 (1982). Although this 
reauthorization was not challenged facially, the Court 
became concerned that interpreting the discriminatory 
“purpose” preclearance requirement too broadly would 
exacerbate federalism costs “perhaps to the extent of 
raising concerns about § 5’s constitutionality.” Reno v. 
Bossier Parish Sch. Bd,, 528 U.S. 320,336 (2000) ("Bossier 
Parish I I ”). The Court also grew concerned with the 
intrusiveness of the “effect” prong and adopted a standard 
geared more toward a “minority group’s opportunity to



10

participate in the political process” and less toward “the 
comparative ability of a minority group to elect a candidate 
of its choice.” Georgia v. Ashcroft, 539 U.S. 461, 479-80 
(2003). This interpretation ensured that the “effect” prong 
more closely tracked the constitutional standard, and it 
avoided the serious equal-protection problems associated 
with focusing preclearance on minority electoral success. 
Id. at 491 (Kennedy, J., concurring).

3. The 2006 Reauthorization

In 2006, Congress reauthorized the VRA for another 
25 years without easing the preclearance burden or 
updating the coverage formula. Congress found “that the 
number of African-Americans who are registered and 
who turn out to cast ballots ha[d| increased significantly 
over the last 40 years, particularly since 1982. In some 
circumstances, minorities register to vote and cast ballots 
at levels that su rpassed] those of white voters.” H.R. 
Rep. No. 109-478, at 12 (2006). It also found that “the 
disparities between African-American and white citizens 
who are registered to vote ha[d] narrowed considerably in 
six southern States covered by the temporary provisions 
... and ... North Carolina.” Id. Thus, “many of the first 
generation barriers to minority voter registration and 
voter turnout that were in place prior to the VRA ha[d] 
been eliminated.” Id.

C ongress n ev erth e less  increased  the  already- 
significant federalism burden preclearance imposes on 
covered jurisdictions by overruling Bossier Parish II and 
Ashcroft. Pub. L. No. 109-246,120 Stat. 577 (2006). Under 
the amended preclearance standard, Section 5’s “purpose” 
prong now requires the denial of preclearance if the



11

voting change was made because of “any discriminatory 
purpose,” 42 U.S.C. § 1973c(c), and the “effect” prong 
requires denial of preclearance whenever the change 
“diminish[es] the ability of [minority] citizens ... to elect 
their preferred candidates of choice,” id. § 1973c(b), (d).

Congress justified retaining (and indeed expanding) 
preclearance by finding that “vestiges of discrimination 
in voting continue to exist as demonstrated by second 
generation b arrie rs  constructed to prevent minority 
voters from fully participating in the electoral process'” 
Pub. L. No. 109-246, 82(b)(2), 120 Stat. at 577. These 
“second generation barriers” included: racially polarized 
voting; various Section 5 preclearance statistics; “section 
2 litigation filed to prevent dilutive techniques from 
adversely affecting minority voters; the enforcement 
actions filed to protect language minorities; and the tens 
of thousands of Federal observers dispatched to monitor 
polls in jurisdictions covered by the [VRA].” Id.

The constitutionality of the 2006 reauthorization 
was im m ediately challenged in N orthw est A u s tin . 
While relying on the canon of constitutional avoidance 
to resolve that appeal on statutory grounds, the Court 
concluded that the VRA’s “preclearance requirements 
and its coverage formula raise serious constitutional 
questions” in light of the dramatic changes in the covered 
jurisdictions. Nw. Austin, 557 U.S. at 204. In particular, 
Section 5 “imposes current burdens and must be justified 
by current needs,” and Section 4(b)’s “departure from 
the fundamental principle of equal sovereignty requires 
a showing that a statute’s disparate geographic coverage 
is sufficiently related to the problem that it targets.” Id. 
at 203. The Court added that “[t]hese federalism concerns



12

are underscored by the argument that the preclearance 
requirements in one State would be unconstitutional in 
another. Additional constitutional concerns are raised in 
saying that this tension between §§ 2 and 5 must persist 
in covered jurisdictions and not elsewhere.” Id.

B. Proceedings Below

1. On April 27, 2010, Shelby County filed suit seeking 
resolution of the “serious constitutional questions” left open 
by Northwest Austin. In a 151-page opinion, the District 
Court granted summary judgment to Respondents. App. 
llla-291a. It ruled that the constitutionality of Sections 
5 and 4(b) must be judged under the congruence-and- 
proportionality standard of City ofBoerne v. Flores, 521 
U.S. 507 (1997), App. 161a-162a, but upheld both statutory 
provisions under that standard, App. 279a-280a, 290a. 
Shelby County timely appealed.

2. By a 2-1 vote, the I).C. Circuit affirmed. Writing 
for the majority, Judge Tatel concluded that “Northwest 
Austin  sets the course for our analysis,” thus requiring 
that Section 5’s ‘“current burdens’” be justified by ‘“current 
needs’” and Section 4(b)’s “‘disparate geographic coverage 
[be] sufficiently related to the problem that it targets’” 
in order to justify its departure from the fundamental 
principle of “‘equal sovereignty.’” App. 14a-15a (quoting 
Nw. Austin, 557 U.S. at 203). In addition, the majority 
read Northivest A ustin  as “sending a powerful signal 
that [Boerne's] congruence and proportionality [test] is 
the appropriate standard of review,” App. 16a, and it 
purported to evaluate the constitutionality of Sections 5 
and 4(b) under that standard.



13

The majority next considered the nature  of the 
evidence that the legislative record needed to document 
in order to justify retaining the preclearance obligation 
for another 25 years. Rejecting Shelby County’s argument 
th a t preclearance was appropriate only in the face 
of obstructionist tactics, the majority concluded that 
Congress need not document “a widespread pattern of 
electoral gamesmanship showing systematic resistance to 
the Fifteenth Amendment” to reauthorize Section 5. App. 
24a. Per the majority, the question was not “whether the 
legislative record reflects the kind o f‘ingenious defiance’ 
that existed prior to 1965, but whether Congress has 
documented sufficiently widespread and persistent racial 
discrimination in voting in covered jurisdictions to justify 
its conclusion that section 2 litigation remains inadequate.” 
App. 26a.

The majority also disagreed with Shelby County’s 
argument that Congress could not rely on vote dilution 
evidence to establish the constitutional necessity of the 
preclearance regime since the VRA enforces the Fifteenth 
Amendment. App. 27a-28a. Acknowledging that “neither 
the Supreme Court nol' this court has ever held that vote 
dilution violates the Fifteenth Amendment,” App. 27a, 
the majority concluded that Section 5 also enforces the 
Fourteenth Amendment, which “prohibits [intentional] 
vote dilution,” App. 27a.

“Having resolved these threshold issues,” App. 
29a, the majority held that the legislative record was 
sufficient to sustain Section 5. It found that “the record 
contains numerous ‘examples of modern instances’ 
of racial discrimination in voting,” App. 29a (quoting 
Boerne, 521 U.S. at 530), and that “several categories 
of evidence in the record support Congress’s conclusion



14

that intentional racial discrimination in voting remains 
so serious and widespread in covered jurisdictions that 
Section 5 preclearance is still needed,” App. 31a. Finally, 
the majority dealt with the absence of widespread evidence 
of voting suppression by finding that Section 5’s so-called 
“blocking” and “deterren t” effect bolstered Congress’ 
reauthorization decision. App. 47a. The majority held 
that Congress’ determination was “reasonable” and thus 
“deserves judicial deference.” App. 68a, 48a.

The majority also upheld Section 4(b). App. 48a-66a. 
It rejected the argument that the coverage formula is 
irrational in theory because it relies on outmoded election 
data and creates an obvious mismatch between its first- 
generation triggers and the second-generation evidence in 
the legislative record. App. 56a. The majority found this 
“argument rests on a misunderstanding of the coverage 
formula” because “Congress identified the jurisdictions 
it sought to cover ... and then worked backward, reverse­
engineering a formula to cover those jurisdictions.” App. 
56a. In its view, “Shelby County’s real argument is that 
the statute ... no longer actually identifies the jurisdictions 
uniquely interfering with the right Congress is seeking 
to protect through preclearance.” App. 57a.

The majority found Section 4(b)’s constitutionality 
“presentfedj a close question.” App. 58a. The majority 
further acknowledged that, according to the Katz Study of 
Section 2 litigation included in the legislative record, of the 
ten fully covered (or almost fully covered) states, five “are 
about on par with the worst non-covered jurisdictions” and 
two “had no successful published section 2 cases at all.” 
App. 58a. But relying on a post-enactment declaration 
that the United States submitted to the district court, the 
majority found that several covered States “appear to be



15

engaged in much more unconstitutional discrimination 
compared to non-covered jurisdictions than the Katz 
data alone suggests.” App. 59a. The Court reasoned that 
these states “appear comparable to some non-covered 
jurisdictions only because section 5’s d e terren t and 
blocking effect screens out discriminatory laws before 
section 2 litigation becomes necessary.” App. 59a-60a. 
Last, the majority concluded that bail-in and bail-out 
alleviated any rem aining concerns with the coverage 
formula. App. 61a-65a.

3. Judge Williams dissented, finding that Section 
4(b)’s criteria for coverage are defective whether “viewed 
in absolute term s (are they adequate in themselves to 
justify the extraordinary burdens of § 5?) or in relative 
ones (do they draw a rational line between covered and 
uncovered jurisdictions?).” App. 70a. While “sometimes 
a dart-throw er can hit the bull’s eye throwing a d a rt 
backwards over his shoulder ... Congress hasn’t proven 
so adept.” App. 70a.

According to Judge Williams, that Section 4(b) must 
be “sufficiently related to the problem it targets” means 
that “[tjhe greater the burdens imposed by § 5, the more 
accurate the coverage scheme must be.” App. 71a. He found 
several aspects of the preclearance regime troubling. 
First, Section 5 creates severe federalism problems by 
“m andating] anticipatory review of state legislative or 
administrative acts, requiring state and local officials to 
go hat in hand to [DOJ] officialdom to seek approval of 
any and all proposed voting changes.” App. 71a. Second, 
Section 5’s “broad sweep” applies “without regard to kind 
or magnitude” of the voting change. App. 72a. Third, the 
2006 amendments to the preclearance standard increased 
Section 5 s federalism burden and “not only disregarded



16

but flouted Justice Kennedy’s concern” that the statute 
created serious equal-protection problems. App. 73a.

Judge Williams agreed that “[w]hether Congress 
is free to impose § 5 on a select set of jurisdictions also 
depends in p a rt ... on possible shortcom ings in the 
remedy that § 2 provides for the country as a whole.” 
App. 77a. But he added that “it is easy to overstate the 
inadequacies of § 2, such as cost and the consequences of 
delay” because “plaintiffs’ costs for § 2 suits can in effect 
be assumed by IDOJ]” and where DOJ does not step in, 
Ҥ 2 provides for reimbursement of attorney and expert 
fees for prevailing parties.” App. 77a (citing 42 U.S.C. § 
1973Z(e)). Further, courts can “use the standard remedy 
of a preliminary injunction to prevent irreparable harm 
caused by adjudicative delay.” App. 77a-78a.

Against this backdrop, Judge Williams concluded that 
“a distinct gap must exist between the current levels of 
discrimination in the covered and uncovered jurisdictions 
in order to justify subjecting the former group to § 5’s 
harsh remedy, even if one might find § 5 appropriate for 
a subset of that group.” App. 78a. He found a negative 
correlation “between inclusion in § 4(b)’s coverage formula 
and low black reg istra tion  or tu rn o u t,” noting tha t 
“condemnation under § 4(b) is a m arker of higher black 
registration and turnout.” App. 83a. This was true for 
minority elected officials in the covered and noncovered 
jurisdictions as well. App. 85a.

“[Sjecond generation” evidence in the record did 
not alter the picture. Judge Williams determined that “a 
number of factors undermine any serious inference” from 
federal election observer data. App. 87a. He also found 
that the Katz Study further undermined the formula,



17

especially when looking at the Section 2 data on a state- 
by-state basis. App. 91a-93a. “The five worst uncovered 
jurisdictions ... have worse records than eight of the 
covered jurisdictions .... Of the ten jurisdictions with the 
greatest number of successful § 2 lawsuits, only four are 
covered .... A formula with an error rate of 50% or more 
does not seem ‘congruent and proportional.’” App. 93a. 
Judge Williams rejected the McCrary declaration’s survey 
of “purportedly successful, but unreported § 2 cases” as 
unreliable. App. 93a.

Judge Williams attributed no significance to the 
purported “blocking” or “deterrent effect” of preclearance 
because Section 5 objections are not a fair proxy for 
successful Section 2 lawsuits and “the supposed deterrent 
effect would justify continued VRA renewals out to the 
crack of doom. Indeed, Northwest A ustin ’s insistence 
that ‘current burdens ... must be justified by current 
needs’ would mean little if § 5’s supposed deterrent effect 
were enough to justify the current scheme.” App. 94a. 
Judge Williams also concluded that the problems with 
the coverage formula could not be solved “by tacking on 
a waiver procedure such as bailout.” App. 101a (citation 
and quotation omitted).

Judge Williams ultimately concluded that “[bjased 
on any of the comparative data available to us, and 
particularly those metrics relied on in Rome, it can hardly 
be argued that there is evidence of a ‘substantial’ amount 
of voting discrimination in any of the covered states, and 
certainly not at levels anywhere comparable to those the 
Court faced in Katzenbach.” App. 96a. Accordingly, “there 
is little to suggest that § 4(b)’s coverage formula continues 
to capture jurisdictions with especially high levels of voter 
discrimination.” App. 104a.



18

REASONS FOR GRANTING THE PETITION

Certiorari should be granted because the D.C. Circuit 
“decided an important question of federal law that has 
not been, but should be, settled by this Court” and it did 
so “in a way that conflicts with relevant decisions of this 
Court.” Sup. Ct. Rule 10(c).

I. The Constitutional Issues Presented In This Case
Are Of Public Importance And Should Re Settled
Now By This Court.

1. “[The] Fram ers of the Constitution intended the 
States to keep for themselves, as provided in the Tenth 
Amendment, the power to regulate elections.” Gregory 
v. Ashcroft, 501 U.S. 452, 461-62 (1991). For covered 
jurisdictions, Section 5 arrests that sovereign authority as 
to “all changes to state election law—however innocuous— 
until they have been precleared by federal authorities in 
Washington, D.C.” Nw. Austin, 557 U.S. at 202. Placing 
a jurisdiction in federal receivership raises fundamental 
questions of state sovereignty; and doing so selectively, 
absent compelling justification, unconstitutionally departs 
from the “historic tradition that all the States enjoy ‘equal 
sovereignty.’” Id. at 202-03. In short, Congress’ 2006 
decision to reauthorize the VRA’s preclearance regime for 
another 25 years “raise[s] serious constitutional questions” 
under any applicable standard. Id. at 204.

Congress compounded the problem by expanding 
the grounds for denying preclearance at a time when the 
“conditions that [the Court] relied upon in upholding this 
statutory scheme in Katzenbach and City o f Rome ha[d] 
unquestionably improved.” Id. at 202. Preclearance must 
now be denied unless a covered jurisdiction can prove both



19

the absence of “any discriminatory purpose” and that the 
voting change will not diminish a minority group’s “ability 
to elect” a favored candidate even if it would not interfere 
with any voter’s “effective exercise of the electoral 
franchise.” Beer, 425 U.S. at 141. The new preclearance 
standard thus “aggravates both the federal-state tension 
with which Northwest A ustin  was concerned and the 
tension between § 5 and the Reconstruction Amendments’ 
commitment to nondiscrimination.” App. 75a (Williams, 
J., dissenting).

2. These federalism concerns are not academic. 
The preclearance regime has an outsized effect on the 
basic operation of state and local government. Based on 
the experience of covered jurisdictions between 1982 
and 2007, Section 5 will foreclose the implementation of 
more than 100,000 electoral changes (more than 99% of 
which will be noncontroversial) unless and until they are 
precleared by federal officials in Washington, D.C. S. Rep. 
No. 109-295, at 18-14 (2006). Because of this prior restraint, 
a covered jurisdiction must either go “hat in hand to [DOJ] 
officialdom to seek approval,” App. 71a, or embark on 
expensive'litigation in a remote judicial venue if it wishes 
to make any change to its election system. It should be 
no surprise, then, that states such as Florida, Texas, and 
Alaska have joined Shelby County in challenging the 2006 
reauthorization.2

These constitutional challenges arise, in significant 
p a r t, in response to D O J’s needlessly aggressive 
exercise ol preclearance authority. For example, DOJ

2 .  S ee  F lo r id a  v. U n ite d  S ta le s ,  N o .  l l - c v - 1 4 2 8 - C K K - M G -  
E S H  ( D . D . C . )  ( D o c .  5 4 ) ;  T e x a s  v. H o lder ,  N o .  1 2 - c v - 1 2 8 - R M C -  
D S T - R L W  ( D . D . C . )  ( D o c .  2 5 ) ;  S a m u e ls e n v .  T rea d w e ll,  N o .  1 2 - c v -  
0 0 1 1 8 - R R B - A K - J K S  ( D .  A l a s k a )  ( D o c .  2 5 ) .



20

has refused to preclear the Texas and South Carolina 
voter identification laws notwithstanding Crawford v. 
M arion County Election Bd., 553 U.S. 181 (2008). As 
Judge Williams explained, there is simply no legitimate 
reason why “voter ID laws from South Carolina and Texas 
[should] be judged by different criteria ... from those 
governing Indiana” when “Indiana ranks ‘worse’ than 
South Carolina and Texas in registration and voting rates, 
as well as in black elected officials” and there is no other 
obvious basis for placing South Carolina and Texas, but 
not Indiana, in federal receivership. App. 103a.

Similarly, Florida (which must obtain preclearance 
of statewide legislation because five of its 62 counties are 
covered jurisdictions) has been forced into preclearance 
litigation to prove that reducing early voting from 14 
days to 8 days is not “discriminatory,”3 when states such 
as Connecticut, Rhode Island, and Pennsylvania have no 
early voting at all.4 Such questionable preclearance denials 
raise serious concerns about whether Section 5’s mission 
has strayed from ensuring that discriminatory tactics do 
not disenfranchise minority voters to providing DOJ with 
a convenient and efficient means of imposing its preferred 
electoral system on the covered jurisdictions.

3 .  D O J  o p p o s e d  p r e c l e a r a n c e  e v e n  t h o u g h  F l o r i d a  s t i l l  
p r o v i d e d  t h e  s a m e  t o t a l  n u m b e r  o f  e a r l y  v o t i n g  h o u r s  ( 9 6  h o u r s )  
b y  e x p a n d i n g  e v e n i n g  h o u r s  a n d  m a n d a t i n g  a d d i t i o n a l  w e e k e n d  
h o u r s .  F lo r id a  v. U n ite d  S ta te s ,  N o .  l l - c v - 1 4 2 8 - C K K - M G - E S H  
( D . D . C . )  ( D o c .  5 4 ) .

4 .  N a t i o n a l  C o n f e r e n c e  o f  S t a t e  L e g i s l a t u r e s :  A b s e n t e e  a n d  
E a r l y  V o t i n g  ( J u l y  2 2 ,  2 0 1 1 ) ,  a v a i la b le  a t  h t t p : / / w w w . n c s l . o r g /  
l e g i s l a t u r e s - e l e c t i o n s / e l e c t i o n s / a b s e n t e e - a n d - e a r l y - v o t i n g . a s p x  
( l a s t  v i s i t e d  J u l y  2 0 ,  2 0 1 2 ) .

http://www.ncsl.org/


21

3. Only th is C ourt, the u ltim ate  guard ian  and 
arbiter of the division of powers that lies at the heart of 
our constitutional system, Boerne, 521 U.S. at 528-29, 
can settle these im portant issues. Although previous 
decisions reviewing the VRA’s constitutionality are 
instructive, there must be a contemporaneous assessment 
ol whether Section 5’s “current needs” justify its “current 
burdens” and whether Section 4(b)’s “departure from 
the fundamental principle of equal sovereignty” remains 
“sufficiently related to the problem th a t it ta rge ts.” 
Nw. Austin, 557 U.S. at 203. “Past success alone ... is 
not adequate justification to re ta in  the preclearance 
requirements.” Id. at 202. These constitutional issues will 
continue to fester until they are definitively settled.

For understandable reasons, this Court “will not 
decide a constitutional question if there is some other 
ground upon which to dispose of the case.” Id. at 205. But 
this prudent separation-of-powers doctrine presupposes 
that the political branches will respond when the Court 
expresses concern over w hether a federal law will 
withstand constitutional scrutiny upon further review. 
M istretta v. United States, 488 U.S. 361,408 (1989) (“Our 
principle of separation of powers anticipates that the 
coordinate Branches will converse with each other on 
m atters of vital common interest.”).

Yet in the more than three years after Northwest 
Austin, Congress held not one hearing, proposed not one 
bill, and amended not one law in response to the concern 
that Sections 5 and 4(b) cannot be constitutionally justified 
based on the record compiled in 2006. And instead of 
judiciously exercising its statutory authority in order 
to avoid confrontation, DOJ’s actions have magnified



22

the burdens and inequities of the modern preclearance 
regime. Supra  at 19-20.

1 his Court’s intervention is therefore warranted. 
Because Congress’ Fifteenth Amendment enforcement 
authority “is not unlimited,” this Court must “determine 
if C ongress has exceeded its au th o rity  under the 
Constitution.” Boerne, 521 U.S. at 536. Both in this setting 
and in others, this Court has traditionally granted review 
whenever a serious challenge to Congress’ enforcement 
authority arises. See, e.g., Coleman v. Court o f Appeals 
o f Maryland, 132 S. Ct. 1327 (2012); Bd. ofTrs. ofUniv. 
o f Ala. v. Garrett, 531 U.S. 356 (2001). This case should 
not be an exception to that rule.

4. Shelby County’s challenge provides an ideal vehicle 
for resolving the constitutionality of Sections 5 and 4(b). 
Unlike in Norttnvest A u stin , Shelby County neither 
requested nor is eligible for bailout. App. 11a. Shelby 
County’s challenge is based on the 2006 legislative record 
and no other evidence is constitutionally cognizable. Infra 
at 34a. There is no justiciability problem. App. 296a-297a. 
The decision below is binding precedent in the D.C. Circuit, 
the only Circuit in which this issue may be adjudicated, 
supra  at 4, and its decision will provide the basis for this 
or any future review by the Court. The unresolved issues 
were thoroughly explored in the district court opinion and 
the majority and dissenting court of appeals opinions.

In acting on Shelby County’s Petition, this Court 
must decide whether to allow the split decision below to 
stand as binding nationwide precedent or to acknowledge 
the importance of the issues presented and settle them.



23

Shelby County believes that the choice is obvious. The 
burdens imposed on it and other covered jurisdictions will 
continue until the constitutional issues left unanswered in 
Northwest A ustin  are definitively resolved by this Court. 
Indeed, the issues Shelby County raises inevitably will be 
presented to this Court until this cloud of uncertainty is 
lifted. The time to settle them is now.

II. Review Is Required Because The Court Of Appeals
Incorrectly Decided These Important And Unsettled
Constitutional Issues.

A. 1 he court ol appeals wrongly upheld Sections 
5 and 4(b) by distorting Boerne’s “congruent 
and proportional” test.

1. The lower courts  ag reed  th a t w hether the 
preclearance regime remains “appropriate” enforcement 
legislation must be judged under the Boerne framework. 
App. 16a, 160a-161a. Under Boerne, the court must 
first “identify with some precision the scope of the 
constitutional right at issue.” Garrett, 531 U.S. at 365. 
Second, it must “examine whether Congress identified 
a history and pattern” of constitutional violations. Id. at 
368. Third, it must find “congruence and proportionality 
between the injury to be prevented or remedied and the 
means adopted to that end.” Boerne, 521 U.S. at 520.

2. While conceding the applicable standard , the 
majority deferred  to Congress in ways alien to the 
Boerne line of decisions. The m ajority described its
job” as merely “to ensure that Congress’s judgment is 

reasonable and rests on substantial probative evidence.” 
App. 47a. But it confused the standard by which courts



24

review legislation enacted under Congress’ Article I 
powers with review of Fifteenth Amendment remedial 
authority. Congress’ enforcement authority under the 
Reconstruction Amendments is not substantive—it is 
strictly remedial. Boerne, 521 U.S. at 527. Treating the 
judicial task as akin to deferential review of Article I 
authority or adm inistrative agency actions, App. 47a, 
abdicates the Court’s duty to patrol “the line between 
measures that remedy or prevent unconstitutional actions 
and m easures tha t make a substantive change in the 
governing law.” Boerne, 521 U.S. at 519.

The majority acknowledged that a “more searching” 
review of the legislative record is needed given Section 
5’s unprecedented burdens. App. 21a. But it honored this 
obligation in the breach, applying an overly deferential 
standard  of review that infected every aspect of its 
analysis and thus effectively abandoning “vital principles 
necessary to maintain separation of powers and the 
federal balance.” Boerne, 521 U.S. at 536.

3. Sections 5 and 4(b) are no longer constitutional 
under a proper application of Boerne. To reauthorize 
Section 5, Congress was required to document the kind 
of “widespread and persisting” pa tte rn  of F ifteenth 
Am endm ent violations th a t made the preclearance 
obligation constitutional in the first place: evasionary 
alteration of discriminatory voting laws to circumvent 
minority victories hard-won through traditional litigation. 
Beer, 425 U.S. at 140. It did not. Nw. Austin, 557 U.S. 
at 226-29 (Thomas, J.). And even if it were “possible to 
squeeze out of [the congressional record] a pattern of 
unconstitutional discrimination by the States,” Garrett, 
531 U.S. at 372, the preclearance obligation—especially 
given the burdensome amendments to the standard—“is



25

so out of proportion to a supposed remedial or preventative 
object that it cannot be understood as responsive to, or 
designed to prevent, unconstitutional behavior,” Boerne, 
521 U.S. at 532.

Section 4(b) likewise fails under Boerne. Its formula 
is not proportional because coverage is no longer “placed 
only on jurisdictions” in which there is “intentional racial 
discrimination in voting.” Id. at 533. The registration, 
turnout, and minority elected officials statistics previously 
relied on by this Court to justify selective coverage reveal no 
difference between covered and non-covered jurisdictions. 
Infra  at 27. And even the “second generation barriers to 
voting” are not concentrated in the covered jurisdictions. 
Id. at 32-34. The formula also lacks congruence because 
of the complete mismatch between its triggers and the 
kind of evidence relied on by Congress to reauthorize the 
preclearance obligation. Id. at 30. Congress must ensure 
a close fit between the reasons for imposing preclearance 
and the formula employed for choosing the jurisdictions 
subject to that obligation. Because Congress clearly 
failed to do so here, Section 4(b)’s coverage formula fails 
congruence-and-proportionality review. App. 70a, 93a, 
97a (Williams, J.).

B. The court of appeals should not have upheld 
Section 5’s preclearance obligation under any 
applicable legal standard.

1. Irre sp ec tiv e  of the s tan d a rd  of review, to 
reauthorize preclearance for another 25 years the 2006 
Congress needed to document “exceptional conditions” 
that could “justify legislative measures not otherwise 
appropriate.” Katzenbach, 383 U.S. at 335. Section 5’s



26

constitutionality has always depended on a legislative 
showing that “current burdens” imposed on the covered 
jurisdictions by this extreme remedy are “justified by 
current needs.” Nw. Austin, 557 U.S. at 203.

2. C ontem poraneous ev idence of sy stem atic  
interference with the right to register and vote has always 
been required to trigger Fifteenth Amendment remedial 
authority. Katzenbach, 383 U.S. a t 329 (legislative 
record was filled with “reliable evidence of actual voting 
discrimination”); Tennessee v. Lane, 541 U.S. 509, 564 
(2004) (Scalia, J., dissenting) (“Congress may impose 
prophylactic § 5 legislation” when “there has been an 
identified history of relevant constitutional violations.”). 
Here, Congress relied on “second generation” barriers 
th a t are not even rem otely probative of intentional 
interference with the right to register and vote—let alone 
the kind of systematic violations that previously justified 
Section 5. Niv. Austin, 557 U.S. at 228 (Thomas, J.); App. 
97a (Williams, J.). The majority should not have relied on 
this evidence to sustain Section 5.

Moreover, much of this evidence involved alleged vote 
dilution. App. 26a-29a. Because the Fifteenth Amendment 
has been the exclusive basis for upholding Section 5, 
however, Katzenbach, 383 U.S. at 308-10, 324-29; Rome, 
446 U.S. at 180-82, the legislative record must document 
disenfranchisement—not vote dilution. Miller, 515 U.S. 
at 937-38. This Court has “never held that vote dilution 
violates the Fifteenth Amendment.” Flossier Parrish II, 
528 U.S. at 334 n.3. The majority incorrectly relied on 
evidence involving redistricting, annexations, at-large 
elections, and other practices that affect the weight of the 
vote once cast—not access to the ballot.



27

3. At most, the legislative record shows scattered and 
limited interference with Fifteenth Amendment voting 
rights in some covered jurisdictions. In Katzenbach, the 
Court relied on the compelling record of widespread 
infringement of voting rights coupled with a recent and 
deplorable history of “ingenious defiance” of traditional 
judicial remedies. 383 U.S. at 309. To sustain Section 5, 
this Court concluded that there must be current evidence 
in the legislative record of “systematic resistance to the 
Fifteenth Amendment.” Id. at 328, 335.

No such record now exists. “Things have changed 
in the South .... Blatantly discrim inatory evasions of 
federal decrees are rare.” Niv. Austin, 557 U.S. at 202. 
Voter registration and turnout “now approach parity” and 
minority candidates hold office at unprecedented levels.” 

Id. at 202 (citing H.R. Rep. No. 109-478, at 12-18). “The 
burden remains with Congress to prove that the extreme 
circumstances warranting § 5’s enactment persist today. 
A record of scattered infringement of the right to vote is 
not a constitutionally acceptable substitute.” Id. at 229 
(Thomas, J.).

To fill th is gap, the m ajority went beyond the 
legislative record to speculate that the lack of evidence of 
discriminatory practices in the covered jurisdictions arose 
not from changed attitudes, but from Section 5’s so-called 
deterrent effect. App. 42a-44a. Speculative deterrence is 
plainly insufficient to impose preclearance on the covered 
jurisdictions. Congress needed to find that Section 5 
was justified under actual conditions uniquely present 
in the covered jurisdictions; it could not proceed from 
an unsubstantiated and unbounded assumption that the 
covered jurisdictions have a latent desire to discriminate



28

that does not exist elsewhere in the country. Congress is 
not entitled to reauthorize Section 5 for another 25 years 
based “on outdated assumptions about racial attitudes in 
the covered jurisdictions.” Nw. Austin, 557 U.S. at 226 
(Thomas, J.); App. 94a (Williams, J.).

4. The court of appeals sought to avoid these record 
infirmities by holding tha t Congress did not need to 
document the kind of “unremitting and ingenious defiance 
of the Constitution” catalogued in Katzenbach. 383 U.S. 
at 309. In its view, Section 5 could be sustained so long 
as the legislative record showed the “inadequacy of 
case-by-case litigation” under Section 2. App. 26a. But it 
was not the ordinary costs and burdens associated with 
traditional litigation that rendered Section 2 inadequate 
in 1965. It was the covered States’ “obstructionist tactics” 
and “systematic resistance to the Fifteenth Amendment.” 
Katzenbach, 383 U.S. at 328. Unrelenting defiance was the 
reason why case-by-case litigation was futile and Section 
5 was justifiable as a last resort. Absent evidence that the 
systematic disenfranchisement of minority voters that 
made case-by-case enforcement impossible still exists, 
there is no constitutional basis for upholding Section 5. 
Congress’ interest in preserving the administrative ease 
of preclearance is not a basis for retaining it.

In any event, nothing in the leg islative record 
suggests that Section 2 litigation is inadequate today. The 
discriminatory tests and devices that once made case- 
by-case litigation futile have been permanently banned 
by Congress. Supra  at 9. In addition, “the majority of 
§ 5 objections today concern redistricting,” App. 99a 
(Williams, J.), and Section 2 is an effective vehicle for 
challenging redistricting changes—especially statewide



29

decennial redistricting plans—the principal ta rget of 
those urging reauthorization, App. 26a, 99a. Moreover, 
there is no evidence in the legislative record that adverse 
Section 2 judgments are being evaded or designed around 
by recalcitrant jurisdictions.

Unlike Section 5’s intrusive and selective suspension 
of all voting changes, Section 2 creates a nationwide 
private righ t of action allowing d irec t challenge to 
discriminatory voting laws and bases its remedy on proven 
violations. Especially in conjunction with Section 3’s bail-in 
mechanism, infra  at 35, Section 2 is now the “appropriate” 
prophylactic remedy for any pattern  of discrimination 
documented by Congress in 2006.

C. The court of appeals should not have upheld 
Section 4(b)’s coverage formula under any 
applicable legal standard.

1. Section 4(b) is unconstitutional whether Boerne 
applies or not. Under Katzenbach, the coverage formula 
must be “rational in both practice and theory.” 383 U.S. 
at 330. In Northwest A u stin , the Court doubted the 
formula’s constitutionality because “the evil that § 5 is 
meant to address may no longer be concentrated in the 
jurisdictions singled out tor preclearance” and because 
“[t]he statu te’s coverage formula is based on data that 
is now more than 35 years old, and there is considerable 
evidence tha t it fails to account for current political 
conditions.” 557 U.S. at 203; Lane, 541 U.S. at 564 
(Scalia, J. dissenting) (allowing a prophylactic remedy to 
be imposed only “on those particular S tates” where the 
problem exists). The decision below cannot be squared 
with any of this Court’s decisions.



30

2. Congress constitutionally justified Section 5’s 
reauthorization based on evidence different from that 
it had previously relied upon; but Congress irrationally 
failed to tie coverage under Section 4(b) to that evidence. 
The majority sidestepped this problem by suggesting 
that the formula’s theoretical irrationality is not “Shelby 
County’s real argument.” App. 57a. That is wrong; the 
issue was briefed extensively both in the district court 
and on appeal. App. 292a-293a. The majority dodged this 
“theory” challenge because there is no answer to it. The 
coverage formula relies on decades-old voting data and 
there is a serious mismatch between its triggers, which 
are based on ballot-access interference, and the “second 
generation” barriers in the record, which relate only to 
the weight of a vote once cast. App. 98a (Williams, J.).

The majority’s nearest approach to this issue was 
asserting that, because the formula “continues to identify 
the jurisdictions with the worst problems,” it “is rational in 
theory.” App. 57a. But that is an argument for rationality in 
practice—not theory. In fact, the majority disclaimed the 
need to defend the formula on a theoretical level, concluding 
that the coverage triggers “were never selected because of 
something special that occurred in [the identified] years” 
and that “tests, devices, and low participation ra tes” 
were not Congress’ main targets; they were “proxies for 
pernicious racial discrimination in voting.” App. 56a-57a. 
But this is pure revisionism. Katzenbach held that the 
“the misuse of tests and devices ... was the evil for which 
the new remedies were specifically designed” and that “a 
low voting rate [was] pertinent for the obvious reason that 
widespread disenfranchisement must inevitably affect the 
number of actual voters.” 383 U.S. at 330-31. Thus, the



31

Court found a rational connection between the triggers 
tor coverage and the problems that the preclearance was 
devised to remedy. Bypassing this question admits that 
it has no answer.

3. The majority’s defense of the coverage formula 
at a practical level tares no better. As Judge Williams 
explained, of the four types of evidence in the legislative 
record for which comparative data exist:

one (voter registration and turnout) suggests 
that the coverage formula completely lacks any 
rational connection to current levels of voter 
discrimination, another (black elected officials), 
at best does nothing to combat that suspicion, 
and, at worst, confirms it, and two final metrics 
(federal observers and § 2 suits) indicate that 
the formula, though not completely perverse, is 
a remarkably bad fit with Congress’s concerns.

App. 95a.

Such a legislative record cannot possibly show that 
voting discrimination is “concentrated in the jurisdictions 
singled out for preclearance.” Nw. A ustin , 557 U.S. 
at 203. Had Congress studied the issue, it might have 
reconsidered the formula. But although it was alerted 
to the problem, Congress never seriously studied the 
comparative records of covered and non-covered States. 
The Continuing Need for Section 5 Preclearance: Hearing 
Before the Senate Comm, on the Judiciary, 109th Cong., 
2d. Sess., at 200-01 (May 16, 2006) (testimony of Pildes) 
(noting that the issue was never “addressed" in any detail 
in the [Senatel hearings ... or in the House” and “little



32

evidence in the Legislative] record examines whether 
system atic differences exist between the currently  
covered and non-covered jurisdictions”). Congress cannot 
selectively impose preclearance if it fails to seriously 
study whether the identified problem is concentrated in 
the targeted jurisdictions.

4. Presumably aware that most of the comparative 
evidence in the legislative record could not be relied on to 
uphold Section 4(b), the majority focused on the Katz Study 
of Section 2 litigation. App. 49a-51a. The majority conceded 
that the study showed that the bulk of the covered States 
are no different from their non-covered counterparts, App. 
58a, but it then resorted to manipulating the Katz data. 
First, it considered only a carefully selected slice of the 
data—Section 2 cases resulting in outcomes described 
as “favorable to minority plaintiffs,” a characterization 
that vastly overstates the significance of this evidence, 
App. 93a-94a (Williams, J.), especially considering that 
Congress cited only the “continued filing of Section 2 cases 
in covered jurisdictions,” Pub. L. No. 109-246, §2(b)(4)(C), 
120 Stat. at 577. The Katz Study indicates that many of 
these Section 2 cases involved no finding of intentional 
discrimination, were not resolved on the merits, or both; 
it also indicated that some of the “outcomes” deemed 
“favorable to minority voters” merely reflected changes 
in voting laws.

Second, the majority primarily reviewed this slice of 
data by aggregating it into “covered” and “non-covered” 
categories, a mode of analysis that fails to afford equal 
dignity to each sovereign State subject to coverage. Nw. 
Austin, 557 U.S. at 203. Even viewed in this skewed 
manner, however, the data fails to show a meaningful



33

difference between covered and noncovered jurisdictions. 
According to the Katz Study, there were more Section 
2 lawsuits filed, as well as more resulting in a finding of 
intentional discrimination, in non-covered jurisdictions. 
Ellen Katz & The Voting Rights Initiative, VRI Database 
M aster List (2006), http://sitemaker.umich.edu/voting 
rights/files/masterlist.xls. And even if “successful” Section 
2 lawsuits were the appropriate barometer, a 56% to 44% 
divide between covered and non-covered jurisdictions, 
especially given the limited number of cases overall, 
cannot justify retaining this outmoded coverage formula.

Third, the majority failed to properly review the 
Katz data state-by-state—the only mode of analysis that 
comports with the principle of equal sovereignty. Had 
it done so, the majority could never have found that the 
formula was actually capturing “the jurisdictions with the 
worst problems.” App. 57a. If successful Section 2 litigation 
is the best measure of where the “worst problems” exist, 
then the coverage formula is both overinclusive—sweeping 
in states like Arizona and Alaska, which had no successful 
Section 2 cases—and underinclusive—omitting states like 
Montana, Arkansas, Delaware, Rhode Island, Hawaii, and 
Illinois, which had more successful Section 2 cases than 
South Carolina, Florida, Virginia, Texas, and Georgia. 
What the majority labeled a “close question,” App. 58a, 
is in fact not close at all.

The majority examined the Katz data state-by-state 
only after supplementing it with the results of a post­
enactment study that it conceded should be “approach[ed] 
... with caution,” App. 54a, because it was conducted 
during this litigation and was partially dependent on 
extra-record evidence collected by different groups and

http://sitemaker.umich.edu/voting


34

pursuant to different methods than the Katz Study, App. 
93a-94a (Williams, J.). But the study should have been 
disregarded entirely. The law’s constitutionality must 
be measured against the legislative record alone. App. 
299a-303a; Coleman, 132 S. Ct. at 1336-37; Nw. Austin  
Mun. Util. Dist. No. One v. Mukasey, 573 F. Supp. 2d 221, 
247 (D.D.C. 2008).

Looking for precedential support, the m ajority 
attempted to analogize the 2006 record to the 1965 record, 
suggesting the two were similar. App. 60a. But the 1965 
record included a category of States where “federal courts 
ha|d] repeatedly found substantial voting discrimination,” 
a second category where “there was more fragmentary 
evidence of recent voting discrimination,” and a third 
category where the use of tests and devices and low 
voter turnout justified coverage, “at least in the absence 
of proof that they hafd] been free of substantial voting 
discrimination in recent years.” Katzenbach, 383 U.S. at 
329-30. In contrast, the 2006 record could not possibly 
result in any States falling within the first category, and 
at most only three States in the second category, “leav[ing] 
six fully covered states (plus several jurisdictions in 
partially covered states) in category three, many more 
than in 1966, when only two fully covered states (Virginia 
and Alaska) were not included in either category one or 
two.” App. 97a. (Williams, J.).

5. The majority also relied on bail-out and bail-in to 
solve the massive problems with the coverage formula. 
But even setting aside the fact that the majority relied on



35

bailout figures inflated by post-reauthorization evidence,5 
only about 1% of all covered jurisdictions have bailed out 
since 1982. Bailout thus is “only the most modest palliative 
to § 5’s burdens,” App. 101a (Williams, J.), especially 
because bailed-out jurisdictions remain subject to the 
VRA’s clawback provision for 10 years, supra at 6 n.l. 
Were bailout sufficient to save such an ill-fitting coverage 
formula, Congress could just randomly select jurisdictions 
for coverage so long as any unlucky jurisdiction could 
obtain some measure of relief from a federal court. Surely 
the “fundamental principle” of equal sovereignty requires 
more. Nw. Austin , 557 U.S. at 203.

Finally, judicial bail-in actually underm ines the 
coverage formula’s constitutionality. Bail-in is a narrower, 
more appropriate means of imposing preclearance because 
it is triggered by a prior judicial finding of unconstitutional 
voting discrimination, 42 U.S.C. § 1973a(c), and because 
it can be applied nationally. Unlike the outdated coverage 
formula, then, Section 3’s bail-in mechanism does not 
“depart[J from the fundam ental principle of equal 
sovereignty” by treating some States differently from 
others, Niv. Austin , 557 U.S. at 203.

*  *  *

Sections 5 and 4(b) of the VRA were essential to 
putting an end to “ingenious defiance” of F ifteenth  
Amendment voting rights in the covered jurisdictions. 
They were designed to overcome egregious discriminatory 
conditions that had persisted for 95 years and had made

5 .  A p p r o x i m a t e l y  o n e - t h i r d  o f  a l l  b a i l o u t s  o c c u r r e d  i n  t h e  
w a k e  o f  N o r th w e s t A u s t in ,  A p p .  6 3 a ,  a n d  t h u s  w e r e  n o t  i n  t h e  
l e g i s l a t i v e  r e c o r d  b e f o r e  C o n g r e s s  i n  2 0 0 6  a n d  c a n n o t  s u p p o r t  
t h e  v a l i d i t y  o f  C o n g r e s s ’ j u d g m e n t ,  see s u p r a  a t  3 4 .



36

case-by-case litigation and the ban on abusive tests and 
devices insufficient to overcome the ram pant electoral 
gamesmanship that had plagued the South. In 1965, 
Congress built the kind of legislative record that is needed 
to sustain a prophylactic remedy as invasive and novel as 
preclearance and crafted a coverage formula that was 
sound in theory and in practice. In 2006, Congress did 
neither. It is now incumbent upon this Court to review the 
decision below and settle the issues arising from Congress’ 
failure to fulfill its obligation.

CONCLUSION

The petition for w rit of certiorari should be granted.

Respectfully submitted,

Bert W. R ein 
Counsel of Record 

W illiam S. Consovoy 
T homas R. McCarthy 
Brendan J. Morrissey 
W iley R ein LLP 

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

Attorneys for Petitioner

July 20, 2012

mailto:brein@wileyrein.com






No. 12-96

M  tfje S u p re m e  C o u rt of tfje UnttetJ S ta te s

S h e l b y  C o u n t y , A l a b a m a , p e t i t i o n e r

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

ON PETITION FOR A WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 
FOR THE DISTRICT OF COLUMBIA CIRCUIT

B R I E F  F O R  T H E  R E S P O N D E N T S  I N  O P P O S I T I O N

Donald B. Verrilli, J r. 
S o lic ito r  G enera l 

C ounse l o f  R eco rd  
Thomas E. Perez 

A s s is ta n t  A tto r n e y  G enera l 
J essica Dunsay Silver 
Erin H .  Flynn 

A tto r n e y s

D e p a r tm e n t o f  J u s tic e  
W a sh in g to n , D.C. 20530-0001 
S u p rem eC iI3 r ie fs@ u sd o j.g o v  
(202) 511-2217

mailto:SupremeCiI3riefs@usdoj.gov


Q U E S T I O N  P R E S E N T E D

W hether Congress acted within its authority to en­
force the constitutional prohibition against discrimina­
tion in voting when it reauthorized Section 5 of the Vot­
ing Rights Act of 1965, 42 U.S.C. 1973c (Section 5), in 
2006, on the basis of an extensive record demonstrating 
that, despite considerable progress under Section 5’s 
remedial framework, discrimination against minority 
voters continues to be a serious problem in covered ju ­
risdictions and that Section 5 remains a valuable tool in 
preventing, remedying, and deterring such discrimina­
tion.

(I)



T A B L E  O F  C O N T E N T S

O p i n i o n s  b e l o w . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  2
J u r i s d i c t i o n . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  2
S t a t e m e n t . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  2
A r g u m e n t . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  2 5
C o n c l u s i o n . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  >24

A p p e n d i x  A  —  J u r i s d i c t i o n s  t h a t  h a v e  b e e n  o r d e r e d  
b y  a  d i s t r i c t  c o u r t  t o  c o m p l y  w i t h
p r e c l e a r a n c e  r e q u i r e m e n t . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . l a

A p p e n d i x  B  —  C o v e r e d  j u r i s d i c t i o n s  t h a t  h a v e  
s u c c e s s f u l l y  t e r m i n a t e d  S e c t i o n  5  
c o v e r a g e . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 a

T A B L E  O F  A U T H O R I T I E S

C a s e s :

A r l in g to n  H e ig h ts  v .  M e tr o p o l i ta n  H o u s . D ev. C orp .,
4 2 9  U . S .  2 5 2  ( 1 9 7 7 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ’ . . . . . . . . 2 2

C ity  o f  B o e r n e  v .  F lo r e s ,  5 2 1  U . S .  5 0 7  ( 1 9 9 7 ) . . .  8 , 1 6 ,  2 4 ,  2 8 ,  3 0  
C ity  o f  R o m e  v .  U n i te d  S ta te s ,  4 4 6  U . S .  1 5 6

( 1 9 8 ° ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 ,  1 6 ,  1 9 ,  2 8
C r a w fo r d  v .  M a r io n  C n ty . E le c t io n  R d .,  5 5 3  U . S .  1 8 1

( 2 0 0 8 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

G eo rg ia  v .  A sh cro ft.,  5 3 9  U . S .  4 6 1  ( 2 0 0 3 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
G e o rg ia  v .  U n ite d  S ta te s ,  4 1 1  U . S .  5 2 6  ( 1 9 7 3 ) . . . . . . . . . . . . . . . . . . 5 ,  1 6
G o n z a le s  v .  R a ic h ,  5 4 5  U . S .  1 ( 2 0 0 5 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 2
K i m e l  v .  F lo r id a  B d . o f  R e g e n ts ,  5 2 8  U . S .  6 2  ( 2 0 0 0 ) . . . . . . . . . . . . 3 0
L o p e z  v .  M o n te r e y  C n ty . ,  5 2 5  U . S .  2 6 6  ( 1 9 9 9 ) . . . . . . . . . . . . 5 ,  1 6 ,  2 8
N e v a d a  D e p ’t o f  H u m a n  R es .  v .  H ib b s ,  5 3 8  U . S .  7 2 1

( 2 0 0 3 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 1 , 2 8 ,  2 9 , 3 0
N o r th w e s t  A u s t i n  M u n .  U til. D is t. N o . O n e  v .  H o ld e r ,

5 5 7  U . S .  1 9 3  ( 2 0 0 9 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . p a s s im

N o r th w e s t  A u s t i n  M u n .  U til. D is t. N o . O n e  v .
M u k a s e y ,  5 7 3  F .  S u p p .  2 d  2 2 1  ( D . D . C .  2 0 0 8 ) . . . . . . . . . . . . . . 7 ,  1 9

Page

( H I )



IV

C a s e s — C o n t i n u e d :  P a g e

Reno v .  Bossier Parish Sch. Bd., 5 2 8  U . S .  3 2 0  ( 2 0 0 0 ) . . . . . . . . . . . . . 6
South Carolina v .  Katzenbach, 3 8 3  U . S .  3 0 1  ( 1 9 6 6 ) . . . . . passim
Tennessee v .  Lane, 5 4 1  U . S .  5 0 9  ( 2 0 0 4 ) . . . . . . . . . . . . . . . . . . . . . . 2 1 ,  2 9 ,  3 0
Texas v .  Holder, N o .  1 2 - c v - 1 2 8 ,  2 0 1 2  W L  3 7 4 3 6 7 6

( D . D . C .  A u g .  3 0 ,  2 0 1 2 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

Texas v .  United States, N o .  1 1 - 1 3 0 3 ,  2 0 1 2  W L  3 6 7 1 9 2 4
( D . D . C .  A u g .  2 8 ,  2 0 1 2 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 1 , 2 2

Thornburgh v .  Gingles, 4 7 8  U . S .  3 0  ( 1 9 8 6 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 7
Woods v .  Cloyd W. Miller Co., 3 3 3  U . S .  1 3 8  ( 1 9 4 8 ) . . . . . . . . . . . . . . 2 2

C o n s t i t u t i o n  a n d  s t a t u t e s :

U . S .  C o n s t . :
A r t .  I V . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
A m e n d .  X . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
A m e n d .  X I V . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
A m e n d .  X V . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

A c t  o f  A u g .  6 , 1 9 7 5 ,  P u b .  L .  N o .  9 4 - 7 3 ,  T i t .  I I ,
8 9  S t a t .  4 0 0 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

C i v i l  R i g h t s  A c t  o f  1 9 5 7 ,  P u b .  L .  N o .  8 5 - 3 1 5 ,  7 1  S t a t .  
6 3 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

..........8

........ 8
passim
passim

2
C i v i l  R i g h t s  A c t  o f  1 9 6 0 ,  P u b .  L .  N o .  8 6 - 4 4 9 ,  7 4  S t a t .  8 6 . . . . . . . 2
C i v i l  R i g h t s  A c t  o f  1 9 6 4 ,  P u b .  L .  N o .  8 8 - 3 5 2 ,  T i t .  I ,  7 8

S t a t .  2 4 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

F a n n i e  L o u  H a m e r ,  R o s a  P a r k s  a n d  C o r e t t a  S c o t t  
K i n g  V o t i n g  R i g h t s  A c t  R e a u t h o r i z a t i o n  a n d  
A m e n d m e n t s  A c t  o f  2 0 0 6 ,  P u b .  L .  N o .  1 0 9 - 2 4 6 ,  1 2 0  
S t a t .  5 7 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

§  2 ( b ) ( l ) - ( 2 ) ,  1 2 0  S t a t .  5 7 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 ,6

§  2 ( b ) ( 7 ) ,  1 2 0  S t a t .  5 7 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
§  2 ( b ) ( 9 ) ,  1 2 0  S t a t .  5 7 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5



V

S t a t u t e s — C o n t i n u e d :

V o t i n g  R i g h t s  A c t  o f  1 9 6 5 ,  P u b .  L .  N o .  8 9 - 1 1 0 ,  7 9  S t a t .
9 3 7 :

§  4 ,  7 9  S t a t .  9 3 8  ( 4 2  U . S . C .  1 9 7 3 b ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
§  4 ( a ) ,  7 9  S t a t .  9 3 8  ( 4 2  U . S . C .  1 9 7 3 b ( a ) . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

V o t i n g  R i g h t s  A c t  of 1 9 6 5 ,  4 2  U . S . C .  1 9 7 3  e t se q . . . . . . . . . . . . . . . . . . . . . . 3
42 U . S . C .  1 9 7 3  ( §  2 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . p a s s i m

4 2  U . S . C .  1 9 7 3 ( a ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

4 2  U . S . C .  1 9 7 3 a ( c )  ( §  3 ( c ) ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 , 2 4
4 2  U . S . C .  1 9 7 3 b ( a )  ( §  4 ( a ) ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 , 7 ,  2 4 ^  2 7
4 2  U . S . C .  1 9 7 3 b ( a ) ( 7 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 5
4 2  U . S . C .  1 9 7 3 b ( b )  ( §  4 ( b ) ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . p a s s i m

42 U . S . C .  1 9 7 3 c  ( §  5 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . p a s s i m
4 2  U . S . C .  1 9 7 3 c ( b ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
4 2  U . S . C .  1 9 7 3 c ( c ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . f,
4 2  U . S . C .  1 9 7 3 c ( d ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

V o t i n g  R i g h t s  A c t  A m e n d m e n t s  o f  1 9 7 0 ,  P u b .  L .  N o
9 1 - 2 8 5 ,  8 4  S t a t .  3 1 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  4

V o t i n g  R i g h t s  A c t  A m e n d m e n t s  o f  1 9 8 2 ,  P u b .  L .  N o .
9 7 - 2 0 5 ,  9 6  S t a t .  1 3 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

§  2 ( b ) ( 2 ) ,  9 6  S t a t .  1 3 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

M i s c e l l a n e o u s :

3 0  F e d .  R e g .  9 8 9 7  ( A u g .  7 , 1 9 6 5 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
H  R -  R e p .  N o .  4 3 9 ,  8 9 t h  C o n g . ,  1s t  S e s s .  ( 1 9 6 5 ) . . . . . . . . . . . . . . . . . . . 2 3
H  R .  R e p .  N o .  4 7 8 ,  1 0 9 t h  C o n g . ,  2 d  S e s s .  ( 2 0 0 6 ) . . . . . . . . 9 , 2 0 , 21

V o tin g  R ig h t s  A c t:  S e c t io n  5 o f  th e  A c t — H is to r y ,
Scope, and, Purpose: Hearing Before the Subcomm. 
on the Constitution of the House Judiciary Comm.,
1 0 9 t h  C o n g . ,  1 s t  S e s s .  ( 2 0 0 5 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  1 9 ,  2 0 ,  2 1



3 n  tfje S u p re m e  C o u rt of tfje U m te b  S ta te s

No. 12-96
S h e l b y  C o u n t y , A l a b a m a , p e t i t i o n e r

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

ON PETITION FOR A WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 
FOR THE DISTRICT OF COLUMBIA CIRCUIT

B R I E F  F O R  T H E  R E S P O N D E N T S  I N  O P P O S I T I O N

O P I N I O N S  B E L O W

The opinion of the court of appeals (Pet. App. la- 
110a) is reported at 679 F.3d 848. The opinion of the dis­
trict court (Pet. App. llla-291a) is reported at 811 F. 
Supp. 2d 424.

JURISDICTION
The judgm ent of the court of appeals was entered on 

May 18, 2012. The petition for a w rit of certiorari was 
filed on July 20, 2012. The jurisdiction of this Court is 
invoked under 28 U.S.C. 1254(1).

S T A T E M E N T

1. a. Although the Fourteenth and Fifteenth 
Amendments have since 1870 guaranteed United States 
citizens’ right to vote free of discrimination on the basis 
of race, “the blight of racial discrimination in voting 
* * * infected the electoral process in parts of our

(1)



2

country for nearly a century” thereafter. S o u t h  C a r o l i ­
n a  v. K a t z e n b a c h ,  383 U.S. 301,308 (1966). Beginning in 
1890, some States—located mostly in the South— 
undertook a systematic campaign to disenfranchise mi­
nority voters. Id. at 310-312. After many decades of in­
action, Congress eventually responded, first by enacting 
the Civil Rights Act of 1957, Pub. L. No. 85-315, 71 Stat. 
634, which authorized the Attorney General to seek in­
junctions against public and private interference with 
voting on racial grounds. S o u t h  C a r o l i n a ,  383 U.S. at 
313. When that measure proved insufficient, Congress 
enacted the Civil Rights Act of 1960, Pub. L. No. 86-449, 
74 Stat. 86, which expanded the Attorney General’s liti­
gation power by authorizing him to join States as party 
defendants, giving him access to local voting records, 
and empowering courts to register voters in areas where 
there had been systematic discrimination. S o u t h  C a r o ­
l i n a ,  383 U.S. at 313. That legislative response also 
proved insufficient, prompting Congress to enact Title I 
of the Civil Rights Act of 1964, Pub. L. No. 88-352, 78 
Stat. 241, which provided for expedited treatm ent of vot­
ing cases before three-judge courts and made illegal 
some ol the tactics that had been used to disenfranchise 
African-Americans in federal elections. S o u t h  C a r o l i n a  
383 U.S. at 313.

With each legislative response, Congress intended to 
further “facilitate] case-by-case litigation against vot­
ing discrimination.” S o u t h  C a r o l i n a ,  383 U.S. at 313. 
But each measure “proved ineffective for a number of 
reasons.” J d .  at 314. As this Court explained in S o u t h  
C a r o l i n a ,  voting litigation is “unusually onerous to pre­
pare” and is “exceedingly slow.” I b i d .  In addition, 
“some of the States affected” by litigation authorized by 
these congressional enactments “merely switched to dis-



3

criminatory devices not covered by” favorable federal 
decrees. Ibid.

Faced with the fact that a serious and invidiously dis­
criminatory obstacle to the proper functioning of our 
democracy had proved nearly impervious to traditional 
legislative remedies, Congress enacted more aggressive 
and unusual measures as part of the Voting Rights Act 
ol 1965 (VRA), 42 U.S.C. 1973 et seq. The purpose of the 
VRA, as this Court put it, was to “rid the country of ra ­
cial discrimination in voting.” South Carolina, 383 U.S. 
at 315. The VRA combined perm anent enforcement 
measures applicable nationwide with temporally and ge­
ographically limited measures applicable to the areas in 
which Congress had found pervasive voting discrimina­
tion. Id. at315-316. Section 5 of the Act applies to spec­
ified jurisdictions and prohibits such covered jurisdic­
tions from adopting or implementing any change in a 
“standard, practice, or procedure with respect to voting” 
without lirst obtaining a preclearance determination 
from either the Attorney General of the United States 
or the United States District Court for the District of 
Columbia. 42 U.S.C. 1973c. In order to obtain preclear­
ance, the jurisdiction must demonstrate that the pro­
posed change does not have the purpose and will not 
have the effect of discriminating on the basis of race. 
Ibid. Section 5 addressed the problems Congress had 
identified with case-by-case adjudication by “prescrib- 
[ing] remedies” that “go into effect without any need for 
prior adjudication.” South Carolina, 383 U.S. at 327- 
328.

When Congress enacted Section 5, “[i]t knew pre­
cisely which states it sought to cover and crafted the cri­
teria” set forth in the statutory coverage provision in 
order “to capture those jurisdictions.” Pet. App. 6a-7a.



4

Rather than identify particular S tates by name in the 
statute s text, Congress chose to describe (in Section 
4(b) of the VRA, 42 U.S.C. 1973b(b» the jurisdictions it 
wished to cover by listing two voting-related criteria 
shared by each such jurisdiction: (1) the use of a defined 
voting test or device as of November 1, 1964, and (2) a 
voter registration or turnout rate that was below 50% in 
the 1964 presidential election. § 4, 79 Stat. 438. Those 
criteria—often referred to as the “coverage formula”— 
were thus “reverse-engineerfed]” to describe the ju ris­
dictions Congress knew it wanted to cover based on “ev­
idence of actual voting discrimination.” Pet. App. 56a.

In order to address any potential over- and under­
inclusiveness attributable to using the Section 4(b) cri­
teria to specify the geographic scope of Section 5’s cov­
erage, Congress included “bail-in” and “bail-out” proce­
dures. Under Section 3(c)’s bail-in standard, a federal 
court may order a jurisdiction found to have violated the 
Constitution’s prohibition on voting discrimination to 
obtain preclearance for some or all future voting chang­
es. 42 U.S.C. 1973a(c). Under Section 4(a)’s original 
bailout standard, a jurisdiction could term inate its cov­
erage by dem onstrating that it had not used a test or 
device for a discriminatory purpose (and therefore 
should not have been covered in the first place) VRA 
79 Stat. 438.

This Court upheld the tem porary provisions of the 
VRA, including Sections 4(b) and 5, as appropriate 
means ol enforcing the guarantees of the Fifteenth 
Amendment. South Carolina, 383 U.S. at 323-337.

b. Congress reauthorized Sections 4(b) and 5 in 1970
(lor five years), 1975 (for seven additional years), and 
1982 (for 25 additional years). See Voting Rights Act 
Amendments of 1970, Pub. L. No. 91-285, 84 Stat. 314;



5

Act of Aug. 6, 1975 (Act of 1975), Pub. L. No. 94-73, Tit. 
II, 89 Stat. 400; Voting Rights Act Amendments of 1982 
(1982 Amendment), Pub. L. No. 97-205, 96 Stat. 131. In 
1975, Congress also significantly expanded Section 5’s 
reach to cover jurisdictions that had engaged in wide­
spread discrimination against minority voters including 
members of identified racial groups described in the 
statute as “language minority” groups. Act of 1975, 89 
Stat. 401-402; Pet. App. 8a. In 1982, Congress signifi­
cantly eased the bailout standard by allowing jurisdic­
tions and subjurisdictions to bail out if they could 
demonstrate tha t they had complied with specified non­
discrimination requirem ents for ten years. 1982 
Amendment, § 2(b)(2), 96 Stat. 131; see Pet. App. 9a, 
128a-129a. This Court upheld the constitutionality of 
Sections 4(b) and 5 after each reauthorization. See 
Georgia v. United States, 411 U.S. 526, 534-535 (1973); 
City o f Rome v. United States, 446 U.S. 156, 172-182 
(1980); Lopez v. Monterey Cnty., 525 U.S. 266, 282-285 
(1999).

c. In 2006, Congress again reauthorized Section 5. 
Fannie Lou Hamer, Rosa Parks, and Coretta Scott King 
Voting Rights Act Reauthorization and Amendments Act 
of 2006 (2006 Reauthorization), Pub. L. No. 109-246, 
§ 2(b)(l)-(2), 120 Stat. 577. After holding extensive 
hearings to learn about ongoing voting discrimination in 
the country and whether there remained a need for Sec­
tion 5 in covered jurisdictions in particular, Congress 
concluded that, “without the continuation of the [VRA’s] 
protections, racial and language minority citizens will be 
deprived of the opportunity to exercise their right to 
vote, or will have their votes diluted, undermining the 
significant gains made by minorities in the last 40 
years.” Id. § 2(b)(9), 120 Stat. 578. Congress also de-



6

termined that “40 years has not been a sufficient amount 
of time to eliminate the vestiges of discrimination follow­
ing nearly 100 years of disregard for the” Fifteenth 
Amendment. Id. § 2(b)(7), 120Stat. 578. Although Con­
gress recognized that, as a “direct resu lt” of the VRA, 
“Lsjignificant progress has been made in eliminating 
first generation barriers experienced by minority vot­
ers,” it concluded that “vestiges of discrimination in vot­
ing continue to exist as demonstrated by second genera­
tion barriers constructed to prevent minority voters 
from fully participating in the electoral process.” Id  § 
2(b)(l)-(2), 120 Stat. 577.

In addition to reauthorizing Section 5 for an addi­
tional 25 years, Congress amended Section 5’s substan­
tive standard in two ways. The first amendment pro­
vides that an election change motivated by any racially 
discriminatory purpose may not be precleared, regard­
less of whether the change is retrogressive. See 42 
U.S.C. 1973c(c). That change supplanted this Court’s 
statutory holding in Reno v. Bossier Parish School, 
Board, 528 U.S. 320 (2000) (Bossier II), that changes 
motivated by discrimination, even though unconstitu­
tional, were not a basis for denying preclearance if the 
intent was “discriminatory but nonretrogressive.” Id. 
at 341. The second amendment provides that preclear­
ance should be denied if an electoral change diminishes, 
on account of race, citizens’ ability “to elect their pre­
ferred candidates of choice.” 42 U.S.C. 1973c(b) and (d). 
That change supplanted this Court’s statutory holding 
in Georgia v. Ashcroft, 539 U.S. 461 (2003), that a pro­
posed redistricting plan was not retrogressive even 
though it reduced minority voters’ ability to elect their 
candidates of choice because it created new districts in



7

which minority voters could potentially influence the 
outcome of an election. Id. at 480-482.

d. Immediately after the 2006 reauthorization, a ju ­
risdiction in Texas filed suit seeking to bail out of cover­
age under Sections 4(b) and 5, and in the alternative 
challenging the constitutionality of the 2006 reauthoriza­
tion of Section 5. A three-judge court held that the ju ­
risdiction was ineligible to apply for bailout and rejected 
the constitutional challenge. Northwest A u stin  Mun. 
Util. Dist. No. One v. M ukasey, 573 F. Supp. 2d 221,235- 
283 (D.D.C. 2008).

On appeal, this Court reversed the statutory bailout 
holding and declined to reach the constitutional ques­
tion. Northwest A u stin  Mun. Util. Dist. No. One v. 
Holder, 557 U.S. 193 (2009) (Northwest Austin). The 
Court’s resolution of the statutory question significantly 
expanded the num ber of jurisdictions eligible to apply 
for bailout compared to the D epartm ent of Justice’s 
previous understanding of the scope of Section 4(a). Id. 
at 206-211. Although the Court did not decide the con­
stitutional question, the Court acknowledged (as Con­
gress did in 2006) the progress minority voters have 
made in covered jurisdictions. Id. at 202. Like Con­
gress, the Court attributed a “significant” portion of 
that progress “to the Voting Rights Act itself.” Ibid. 
Noting that “these improvements” may be “insufficient 
and that conditions [may] continue to w arrant preclear­
ance under the Act,” the Court observed that “the Act 
imposes current burdens and must be justified by cur­
ren t needs.” Id. at 203. The Court also noted Section 
5’s unusual differentiation between covered and non- 
covered States, and explained that its “disparate geo­
graphic coverage” must be “sufficiently related to the 
problem that it ta rg e ts.” Ibid.



8

2 . The State of Alabama has been a covered jurisdic­
tion subject to Section 5 since 1965. 30 Fed. Reg. 9897 
(Aug. 7,1965). As a subdivision of Alabama, petitioner is 
also subject to Section 5. Pet. App. 112a, 145a. In April 
2010, petitioner filed suit in the District Court for the 
District of Columbia, seeking a declaratory judgm ent 
that Sections 4(b) and 5 of the VRA are facially uncon­
stitutional and a permanent injunction barring enforce­
ment of those provisions. Id. at 145a, 149a. Petitioner 
alleges that Congress exceeded its authority under the 
Fourteenth and Fifteenth Amendments when it reau­
thorized Sections 4(b) and 5 in 2006, thereby violating 
the Tenth Amendment and Article IV of the Constitu­
tion. Pet. App. 149a-150a.

The district court granted summary judgment to the 
Attorney General, holding that Congress validly acted 
pursuant to its authority to enforce the guarantees of 
the Fourteenth and Fifteenth Amendments when it 
reauthorized Sections 4(b) and 5 of the VRA in 2006. 
Pet. App. 114a-115a, 291a. The district court acknowl­
edged this Court’s questions, expressed in Northwest 
A ustin , about the continued constitutional viability of 
Section 5 and the scope of its geographic coverage.' Id. 
at 142a-144a. With those concerns in mind, the court 
undertook a detailed review of the “extensive 15,000- 
page legislative record” supporting the 2006 reauthori­
zation. Id. at 114a, 191a-255a, 288a-290a. Applying the 
congruence-and-proportionality inquiry of City o f 
Boerne v. Flores, 521 U.S. 507 (1997) (Boerne), the dis­
trict court examined the evidence before Congress about 
the state of voting discrimination since the 1982 reau­
thorization—including testimony, reports, and data that 
revealed persisting racial disparities in voter reg istra­
tion, turnout, and minority electoral success; the nature



9

and number of Section 5 objections, including a signifi­
cant number of objections based on discriminatory in­
tent; the number of successful Section 5 enforcement 
actions; Section 2 lawsuits with outcomes favorable to 
minority voters1; the Attorney General’s requests for 
more information from jurisdictions submitting changes 
for preclearance and those jurisdictions’ reaction to such 
requests; the Attorney General’s use of federal observ­
ers; the prevalence of racially polarized voting and the 
role it plays in jurisdictions’ use of dilutive techniques; 
and Section 5’s deterren t effect. Pet. App. 12a, 130a- 
132a, 191a-255a.

Based on its exhaustive review of the record, the 
court confirmed that Congress had found ample evi­
dence of a history and ongoing pattern  of purposeful, 
state-sponsored voting discrimination in covered ju ris­
dictions. Pet. App. 189a-270a. The court also credited 
Congress’s conclusion that Section 2 alone would be an 
“inadequate rem edy” for discrimination in covered ju ­
risdictions. Id. at 269a-270a (quoting H.R. Rep. No. 478, 
109th Cong., 2d Sess. 57 (2006)). The court further con­
cluded that Section 5’s preclearance remedy is a congru­
ent and proportional means of enforcing the guarantees 
of the Fourteenth and Fifteenth Amendments, particu­
larly in light of the meaningful limitations built into Sec­
tion 5, including the bailout mechanism. Id. at 270a- 
280a.

The district court also considered petitioner’s chal­
lenge to the scope of Section 5’s geographic coverage, as

1 S e c t i o n  2  o f  t h e  V R A  a p p l i e s  n a t i o n w i d e  a n d  p r o h i b i t s  t h e  i m p o s i ­
t i o n  o f  a n y  v o t i n g  p r a c t i c e  o r  p r o c e d u r e  i n  a  m a n n e r  t h a t  “ r e s u l t s  i n  a  
d e n i a l  o r  a b r i d g e m e n t  o f  t h e  r i g h t  o f  a n y  c i t i z e n  o f  t h e  U n i t e d  S t a t e s  
t o  v o t e  o n  a c c o u n t  o f  r a c e  o r  c o l o r ”  o r  m e m b e r s h i p  i n  a  l a n g u a g e  m i ­
n o r i t y  g r o u p .  4 2  U . S . C .  1 9 7 3 ( a ) .



10

embodied in Section 4(b). Pet. App. 280a-290a. Cogni­
zant of this Court’s observation that Section 4(b)’s dis­
parate geographic coverage need be “sufficiently re la t­
ed” to the problem Section 5 targets, id. at 281a (quoting 
Northwest A ustin , 557 U.S. at 203), the district court 
concluded tha t Congress appropriately retained the ex­
isting coverage scope only after examining whether vot­
ing discrimination both “persisted in the jurisdictions 
traditionally covered by Section 4(b)” and “remained 
more prevalent in these jurisdictions than in the [non- 
covered] jurisdictions.” Id. at 282a.

The court rejected petitioner’s argument that Section 
4(b) was invalid because it retained “triggers” tied to 
decades-old election data. The court explained that the 
triggers “were never selected because of something spe­
cial that occurred in those years; instead, they were cho­
sen as mere proxies for identifying those jurisdictions 
with established histories of discriminating against ra ­
cial and language minority voters.” Pet. App. 285a. 
“Notwithstanding the passage of time since the coverage 
formula was last updated,” the court concluded, discrim­
ination in voting remained a serious problem in covered 
jurisdictions. Id. at285a-286a. The court also explained 
that Congress had compared contemporary voting dis­
crimination in covered and non-covered jurisdictions 
based on, inter alia, evidence revealing that covered ju ­
risdictions accounted for more than twice their propor­
tional share (adjusted for population) of Section 2 law­
suits with outcomes favorable to minority voters—even 
with Section 5’s preclearance remedy in place in those 
covered jurisdictions. Id. at288a-289a. The court there­
fore concluded that Congress’s decision to maintain the 
existing scope ol coverage (i.e., jurisdictions previously 
covered that had not bailed out) was a constitutional



11

means ol combating voting discrimination because it was 
“sufficiently related to the problem that it targets.” Id. 
at 290a.

5. The court of appeals affirmed in a divided deci­
sion. Pet. App. la-110a.

a. The court of appeals relied on this Court’s decision 
in Northwest A u stin  as the framework for its analysis, 
noting that the relevant inquiry is “w hether section 5’s 
burdens are justified by current needs and whether its 
disparate geographic reach is sufficiently related to that 
problem.” Pet. App. 16a. Applying the Boerne frame­
work, the court of appeals embarked on a “searching” 
and “probing” review of the legislative record, cognizant 
that Congress “acts at the apex of its power” when it 
“seeks to combat racial discrimination in voting.” See 
id. at 19a-22a.

The court first addressed w hether Section 5’s bur­
dens are justified by current needs. The court rejected 
petitioner’s argum ent that the only evidence relevant to 
the inquiry is evidence of “a widespread pattern  of elec­
toral gamesmanship showing systematic resistance to 
the Fifteenth Amendment.” Pet. App. 24a. The court 
explained that the validity of Section 5 does not rest on 
“whether the legislative record reflects the kind of ‘in­
genious defiance’ that existed prior to 1965,” noting that 
such behavior is “virtually impossible” with Section 5 in 
place. Id. at 24a-26a. The inquiry turns instead, the 
court explained, on “whether Congress has documented 
sufficiently widespread and persistent racial discrimina­
tion in voting in covered jurisdictions to justify its con­
clusion that section 2 litigation remains inadequate.” Id. 
at 25-26a. The court also rejected petitioner’s argument 
that it could only consider evidence of direct and inten­
tional interference with the right to register and vote, to



12

the exclusion of evidence of intentional vote dilution. Id. 
at 26a-27a. The court explained that such discrimination 
violates the Fourteenth Amendment and is therefore 
relevant to the inquiry given that Congress relied on 
both the Fourteenth and Fifteenth Amendments in reau­
thorizing Section 5. Id. at 27a-28a. The court further 
explained that “tactics like intentional vote dilution are 
in fact decades-old forms of gamesmanship” that dis­
criminate against minority voters and were “well 
known” to Congress in 1965 and in 2006. Id. at 28a-29a.

Examining the legislative record, the court found 
substantial probative evidence of ongoing constitutional 
violations tha t justified Congress’s conclusion “that ra­
cial discrimination in voting in covered jurisdictions is so 
serious and pervasive that section 2 litigation remains 
an inadequate remedy.” Pet. App. 29a. In particular, the 
court cited “[j ]ust a few” of the “numerous” examples of 
“flagrant racial discrimination” and “overt hostility to 
black voting power by those who control the electoral 
process.” Id. a t 29a-31a. It also emphasized the more 
than 600 objections interposed by the Attorney General 
between 1982 and 2004, including at least 423 objections 
based on discriminatory purpose; more than 800 voting 
changes withdrawn or modified by covered jurisdictions 
in response to the Attorney General’s “more information 
requests,” from which Congress could reasonably infer 
at least some discriminatory intent; 653 successful Sec­
tion 2 actions in covered jurisdictions, some with find­
ings oi intentional discrimination, providing relief from 
discriminatory practices in at least 825 counties; 622 
separate dispatches of multiple observers to covered ju ­
risdictions based on the likelihood of Fourteenth or Fif­
teenth Amendment violations; 105 successful Section 5 
enforcement actions against recalcitrant jurisdictions;



13

and 25 unsuccessful judicial preclearance actions by 
covered jurisdictions. Id. at31a-42a. The court further 
explained that Congress had reached a reasoned and 
well-supported judgm ent that Section 2 was inadequate 
to combat the serious and widespread intentional voting 
discrimination tha t persisted in covered jurisdictions. 
Id. at45a-47a. Based on its independent examination of 
the record, the court therefore concluded that “overt ra­
cial discrimination persists in covered jurisdictions not­
withstanding decades of section 5 preclearance” and 
that “section 5’s ‘current burdens’ are indeed justified 
by ‘current needs.’” Id. at 48a.

The court next turned to whether Section 5’s “dispar­
ate geographic coverage is sufficiently related to the 
problem that it ta rge ts.” Pet. App. 48a. The court em­
phasized that the answer “depends not only on section 
4(b)’s formula, but on the statute as a whole, including 
its mechanisms for bail-in and bailout.” Ibid. The court 
considered evidence before Congress comparing the de­
gree of voting discrimination in covered and non-covered 
jurisdictions, including a study (known as the Katz 
study) of reported Section 2 decisions nationwide be­
tween 1982 and 2004. Id. at 49a; see also id. at 130a. 
When the data was adjusted to reflect population differ­
ences in covered and non-covered jurisdictions, the 
study showed that “the ra te  of successful section 2 cases 
in covered jurisdictions * * * is nearly four times the 
ra te  in non-covered jurisdictions,” and tha t the overall 
success rates of Section 2 cases are higher in covered 
jurisdictions. Id. at49a-51a. Those findings, the court 
concluded, indicate tha t “racial discrimination in voting 
remains ‘concentrated in the jurisdictions singled out for 
preclearance.’” Id. at 49a (quoting Northwest Austin , 
557 U.S. at 203). The court also took account of un-



14

published Section 2 decisions with outcomes favorable to 
minority plaintiffs, which revealed that 81% of success­
ful Section 2 cases nationwide were filed in the covered 
jurisdictions. Id. 51a-55a. The court found that espe­
cially notable because one might expect to find fewer 
such suits in covered jurisdictions given that Section 5 
would be expected to halt the implementation of discrim­
inatory voting changes. Id. at 55a.

The court rejected petitioner’s argum ent that it was 
irrational for Congress to maintain the criteria in Sec­
tion 4(b) because it was tied to decades-old data and un­
tied to the types of second-generation barriers with 
which Congress was primarily concerned in 2006. Pet. 
App. 55a-61a. The court explained that “Congress iden­
tified the jurisdictions it sought to cover—those for 
which it had ‘evidence of actual voting discrimination,’ 
[South Carolina], 383 IJ.S. at 329—and then worked 
backward, reverse-engineering a formula to cover those 
jurisdictions.” Id. at 56a. Congress thus originally se­
lected the criteria in Section 4(b) because they “served 
as accurate proxies lor pernicious racial discrimination 
in voting,” and the relevant question in 2006 therefore 
was whether the VRA “continues to identify the jurisdic­
tions with the worst problems.” Id. at 57a. In addition, 
the court explained that the statu te’s bail-in and bailout 
provisions further ensure that Section 5 applies only to 
those jurisdictions with the worst recent records of vot­
ing discrimination. Id. at 61a-65a. The court also point­
ed to this Court’s decision in Northwest A ustin , which 
greatly increased the number of jurisdictions eligible to 
apply lor bailout, noting that 30% of successful bailout 
actions since 1965 had occurred in the three years be­
tween Nortliwest A ustin  and the court of appeals’ deci­
sion. Id. at 63a. Considering the statute as a whole, the



15

court concluded that Section 4(b), together with the bail- 
in and bailout mechanisms, “continues to single out the 
jurisdictions in which discrimination is concentrated.” 
Id. at 65a.

c. Judge Williams dissented, explaining that he 
would find Section 4(b)’s coverage provision unconstitu­
tional even if Congress might be justified in continuing 
to impose Section 5’s preclearance remedy in some cov­
ered jurisdictions. Pet. App. 70a, 78a, 104a. Judge Wil­
liams considered Section 5’s “mandateld] anticipatory 
review,” its placement of the burden of proof on the ju ­
risdiction submitting a change, and its substantive pur­
pose and retrogression standards (as amended in 2006) 
in concluding that Section 5 imposes substantial burdens 
on covered jurisdictions. Id. at71a-77a. Judge Williams 
also disagreed with Congress’s judgm ent that Section 2 
alone would be an inadequate means of remedying and 
deterring voting discrimination in covered jurisdictions. 
Id. at 77a-78a. After reviewing the legislative record, 
id. at 79a-102a, Judge Williams would have held that the 
2006 reauthorization of Section 4(b) was not a congruent 
and proportional means of enforcing the guarantees of 
the Fourteenth and Fifteenth Amendment.

ARGUMENT
Petitioner asks this Court to review the court of ap­

peals’ determination that Congress validly acted pursu­
ant to its constitutional authority to enforce the Four­
teenth and Fifteenth Amendments when it reauthorized 
Sections 4(b) and 5 of the Voting Rights Act in 2006. 
Although tha t is certainly an im portant question of fed­
eral law, review by this Court is not w arranted.

This Court has “acknowledge[d] the necessity o f” 
Congress’s use of “strong remedial and preventive 
measures” under its Fourteenth and Fifteenth Amend-



16

ment enforcement powers “to respond to the widespread 
and persisting deprivation of constitutional rights re­
sulting from this country’s history of racial discrimina­
tion.” City o f Boerne v. Flores, 521 U.S. 507, 526 (1997). 
Section 5 of the VRA is the quintessential example of 
such a remedy. See id. at 525-527. Prior to the 2006 
reauthorization, this Court had already upheld the con­
stitutionality of Section 5 on four occasions, spanning 
multiple reauthorizations. Lopez v. Monterey Cnty., 525 
U.S. 266, 282-285 (1999); City o f Rome v. United States, 
446 U.S. 156, 177-178 (1980); Georgia v. United States, 
411 U.S. 526, 534-535 (1973); South Carolina v. Katzen- 
bach, 383 U.S. 301, 337 (1966).

With regard to the latest reauthorization in 2006, the 
court of appeals correctly applied settled legal principles 
in reviewing the 15,000-page legislative record, deter­
mining that Congress correctly identified a pervasive 
constitutional problem, and concluding tha t Congress’s 
reauthorization of Section 5 (including its maintenance 
of the existing coverage scope) was a congruent and 
proportional means of enforcing the Fourteenth and Fif­
teenth Amendments. In particular, the court of appeals 
conformed its analysis to the framework this Court set 
forth only three years ago in Northwest A  ustin M unici­
pal U tility D istrict N um ber One v. Holder, 557 U.S. 193 
(2009), correctly rejecting petitioner’s facial challenge. 
Petitioner did not seek en banc review of the panel deci­
sion. Review by this Court is not warranted.

1. The court of appeals correctly rejected petition­
e r’s facial challenge to the constitutionality of Sections 
4(b) and 5 of the VRA. From the outset of its analysis, 
the court of appeals embraced this Court’s opinion in 
Northwest A ustin , noting the Court’s specific questions 
concerning assessment of the continued constitutionality



17

of Section 5, and tailoring its own analysis to account for 
those concerns. See Pet. App. 14a (“Northwest A ustin  
sets the course for our analysis.”).

a. Attempting first to answer this Court’s question 
whether Section 5’s current burdens are justified by 
current needs, see Northwest A ustin , 557 U.S. at 202, 
the court of appeals engaged in an exhaustive review of 
the 15,000-page legislative record assembled by Con­
gress in 2006. Pet. App. 9a, 24a-55a, 58a-64a. “Con­
gress,” this Court explained in Northwest A ustin , 
“amassed a sizeable record in support of its decision to 
extend the preclearance requirem ents.” 557 U.S. at 205. 
Applying the analysis described in this Court’s decision 
in Boerne, the court of appeals correctly concluded that 
the evidence of voting discrimination in covered jurisdic­
tions was more than enough to justify Congress’s reli­
ance on its authority to enforce the Fourteenth and Fif­
teenth Amendments in reauthorizing Section 5.2

Although the court of appeals expressly found that 
Congress appropriately relied on its authority to enforce 
the protections of both the Fourteenth and Fifteenth 
Amendments when it reauthorized Section 5, see Pet. 
App. 27a-28a, petitioner makes no suggestion that the 
record was insufficient to justify Congress’s reliance on 
its authority under Section 5 of the Fourteenth Amend­
ment. If the only question petitioner would have this 
Court address is whether the 2006 reauthorization can

2 Although the government disagrees with the court of appeals that 
Boerne provides the appropriate framework for reviewing the consti­
tutional questions presented in this case, tha t is not a reason to grant 
the petition for a w rit of certiorari. As the court of appeals explained, 
the result in this case would have been the same if the court had ap­
plied the rationality standard of South Carolina ra ther than the 
congruence-and-proportionality framework of Boerne. Pet. App. l(ia.



18

be justified under the Fifteenth Amendment, the resolu­
tion of that constitutional question will have no practical 
consequence because the statute has been upheld under 
the Fourteenth Amendment as well. Even with respect 
to Congress’s exercise of its authority to enforce the Fif­
teenth Amendment, petitioner does not argue that, tak­
en as a whole, the record before Congress in 2006 was 
insulficient to establish that voting discrimination con­
tinues to be widespread in covered jurisdictions. Peti­
tioner instead attem pts to pare down the relevant evi­
dence based on a mistaken understanding of the Consti­
tution and the history of Section 5 of the VRA.

First, petitioner argues (Pet. 24-25, 27-28) that, in 
considering whether to reauthorize Section 5 in 2006, 
Congress was limited to considering evidence that cov­
ered jurisdictions continued to engage in “systematic 
resistance to the Fifteenth Amendment.” Pet. 27 (quot­
ing South Carolina, 383 U.S. at 328). The court of ap­
peals correctly rejected that argument, which misunder­
stands this Court’s decision in South Carolina and Con­
gress’s original intent in enacting Section 5. The type of 
gamesmanship petitioner would have Congress rely on, 
to the exclusion of all other evidence of discrimination 
(even unconstitutional discrimination), was not Con­
gress’s sole focus in originally enacting Section 5 or the 
focus of this Court in upholding it. Although the Court 
in South Carolina noted that “some” jurisdictions had 
engaged in evasion of the Constitution’s antidiscrimin­
ation mandates, it also acknowledged that it was the 
cumbersome nature of case-by-case adjudication that 
prompted Congress to adopt the preclearance require­
ment. 383 U.S. at 314-315, 327-328. To the extent 
gamesmanship did play a role in the adoption of Section 
5, the preclearance mechanism constrains the opportuni-



19

ty for such behavior. See Pet. App. 25a. Jurisdictions 
must now demonstrate that new voting practices are not 
discriminatory before implementing them. Although 
Congress did find evidence of some covered jurisdic­
tions’ continued efforts to evade the nondiscrimination 
mandate of Section 5, see Northwest A u stin  Mun. Util. 
Dist. No. One v. M ukasey , 573 F. Supp. 2d 221, 273 
(D.D.C. 2008)/ the lack of additional evidence of that 
kind simply dem onstrates that Section 5 is working in 
this regard.

Second, petitioner argues (Pet. 26) that, even within 
the narrow category of evidence of systematic resistance 
to the Fifteenth Amendment, Congress was limited to 
considering evidence of intentional interference with the 
right to register to vote and to cast a ballot, and could 
not rely on evidence of vote dilution. The court of ap­
peals correctly rejected that argument, see Pet. App. 
26a-29a, which finds no basis in law or logic. Even as­
suming petitioner were correct tha t the Fifteenth 
Amendment does not prohibit intentional acts of vote 
dilution on the basis of race—a point the government 
does not concede—it is well established tha t the Four­
teenth Amendment does prohibit such action. I t defies 
common sense to suggest that Congress was prohibited 
from considering evidence of unconstitutional discrimi­
nation by covered jurisdictions in deciding whether to

F or examples of Section 5 objections induced by recalcitrant ju ris­
dictions’ attem pts to evade the force of successful Section 2 actions, 
see Voting Rights Act: Section 5 o f the Act—H istory , Scope, and 
Purpose: Hearing Before the Subcomm. on the Constitution o f the 
House Judiciary Comm., 109th Cong., 1st Sess. 330-332, 340-343, 
429-434, G07-608,678-680,795-797,812-814,907-910,1141-1144,1207- 
1210, 1360-1361, 1384-1386, 1388-1390, 1402-1404, 1516-1521, 1538- 
1540, 1574-1579, 1730-1732, 1823-1825, 1833-1836, 1935-1937, 1957- 
1959, 2041-2043, 2212-2213, 2269-2271, 2300-2303, 2307-2311 (2005).



20

exercise its authority to enforce constitutional guaran­
tees. This Court’s statem ent in South Carolina that 
Section 5 is a valid means of enforcing the Fifteenth 
Amendment does not mean that it cannot also be a valid 
means of enforcing the Fourteenth Amendment.

As the court of appeals’ exhaustive opinion reveals, 
the record before Congress of recent voting dis­
crimination in covered jurisdictions is extensive. That 
record is “replete with direct and circumstantial evi­
dence of contemporary voting discrimination by covered 
jurisdictions—voting discrimination that occurred de­
spite the existence of Section 5.” Pet. App. 270a. For 
example, Congress examined the Attorney General’s en­
forcement of Section 5—just as previous Congresses had 
with the approval of this Court, see City o f Rome, 446 
U.S. at 181—and learned that the Attorney General had 
interposed more than 750 objections (administratively 
and in judicial preclearance actions) between 1982 and 
2006, see H.R. Rep. No. 478 at 21-22, and that those ob­
jections had prevented implementation of more than 
2400 discriminatory voting changes. See Voting Rights 
Act: Section 5 o f the Act—History, Scope, and Purpose: 
Hearing Before the Subcomm. on the Constitution o f the 
House Judiciary Comm., 109th Cong., 1st Sess. 104- 
2595 (2005) (History, Scope, & Purpose) (reproducing 
objection letters). Significantly, Congress learned that a 
sizeable portion of the Attorney General’s objections (at 
least 423 between 1982 and 2004, see Pet. App. 33a) were 
interposed at least in part because a jurisdiction had 
acted with a discriminatory purpose. Intentional dis­
crimination against minority voters is exactly the type of 
action the Fourteenth and Fifteenth Amendments em­
power Congress to prevent.



21

Examples of intentional discrimination blocked by 
Section 5 are numerous. As but one notable example, in 
2001, the Attorney General interposed an objection re ­
garding Kilmichael, Mississippi, after the all-white in­
cumbent town governance tried to cancel an election 
shortly after black citizens had become a majority. H is­
tory, Scope, & Purpose 1616-1619. When the citizens of 
Kilmichael finally voted, they elected the town’s first 
African-American mayor and three African-American 
aldermen. H.R. Rep. No. 478, supra, at 36-37. There 
are numerous additional examples. See Pet. App. 29a- 
31a; see also, e.g., History, Scope & Purpose 830-833 
(2000 objection to redistricting plan for Webster County, 
Georgia, school board undertaken to “intentionally 
decreas[e] the opportunity of minority voters to partici­
pate in the electoral process” after majority black board 
was elected); id. at 1606-1612 (1998 objection to redis­
tricting plan for Grenada, Mississippi, adopted with 
“purpose to maintain and strengthen white control of a 
City on the verge of becoming m ajority black”).

Very recently, a three-judge court found that Texas 
engaged in intentional discrimination against its black 
and Latino citizens when it drew new boundaries for its 
congressional and State Senate districts following the 
2010 decennial census. Texas v. United States, No. 11- 
1303, 2012 WL 3671924 (D.D.C. Aug. 28, 2012), notice of 
appeal filed, Docket entry No. 234 (D.D.C. Aug. 31, 
2012).4 The court concluded, for example, that Texas

4 Although petitioner contends (Pet. 33-34) that the only evidence 
relevant to the continuing viability of Section 5 is the evidence that 
was presented to Congress in 2006, that assertion is at odds with this 
Court’s approach to congressional-authority questions. The Court 
considers post-enactment evidence when determining whether Con­
gress had the constitutional authority to promulgate a law, including



2 2

had redrawn congressional district lines to remove the 
home offices of numerous incumbent minority legisla­
tors from their districts without inflicting the same bur­
den on even one Anglo legislator—a pattern  the court 
determined was “unexplainable on grounds other than 
race.” 2012 WL 3671924, at *20 (quoting Arlington  
Heights v. M etropolitan Hous. Dev. Corp., 429 U.S. 252, 
266 (1977)). The court also noted that, “[i]n the last four 
decades, Texas has found itself in court every redistrict- 
ing cycle, and each time it has lost.” Ibid, (citing cases). 
Such a pattern confirms Congress’s determination that 
Section 5 is still needed in covered jurisdictions.

In addition to considering evidence of intentional dis­
crimination, Congress relied on other types and sources 
of evidence that previous Congresses had relied on to 
justify prior reauthorizations. Based on that evidence, 
the court of appeals concluded that Section 5’s ‘“current 
burdens’ are indeed justified by ‘current needs.’” Pet. 
App. 48a; see id. at29a-48a, 194a-196a, 198a-270a.5 That 
material included evidence of the inadequacy of Section 
2 as a remedy for voting discrimination in covered juris­
dictions due to the cost and time-consuming nature of

laws enacted pursuant to Congress’s authority to enforce the Recon­
struction Amendments. See Tennessee v. Lane, 541 U.S. 509,524-525 
& nn.6-8,11,13-14 (2004); Nevada Dep’t o f H um an Res. v. Hibbs, 538 
U.S. 721, 733-734 & nn.6-9 (2003); cf. Gonzales v. Raich, 545 U.S. 1, 
19 n.28, 21 n.31 (2005); Woods v. Cloyd W. M iller Co., 333 U S 138 
143 n.6 (1948).

■’ Nor did the court of appeals fill any gap in the record by “spee- 
ulatfing]” about either Section 5’s deterrent effect or “a latent desire 
[by covered jurisdictions] to discriminate.” Pet. 27. The court rea­
sonably deferred to Congress’s predictive judgm ent, based on the 
record, that current levels of voting discrimination in the covered ju r­
isdictions would be substantially worse without Section 5. Pet. App. 
42a-44a; see id. a t 252a-255a, 267-270a.



23

case-by-case adjudication. Id. at 45a-47a; see id. at 
269a-270a, 277a-278a.

b. The court of appeals also correctly rejected peti­
tioner’s argum ent (see Pet. 29-35) that Congress acted 
irrationally in 2006 when it opted to maintain Section 5’s 
existing geographic scope. As the court of appeals cor­
rectly explained, the coverage criteria included in Sec­
tion 4(b) were “reverse-engineerfed]” to describe in ob­
jective terms those jurisdictions Congress knew it want­
ed to cover because of their long histories of racial dis­
crimination in voting. Pet. App. 56a-57a; see also South  
Carolina, 383 U.S. at 329; H.R. Rep. No. 439, 89th 
Cong., 1st Sess. 13-14 (1965); Pet. App. 285a-287a. The 
registration and turnout triggers included in Section 
4(b) thus, along with the test-or-device requirement, 
simply provided a means of describing the jurisdictions 
with a history of “widespread and persistent discrimina­
tion in voting.” South. Carolina, 383 U.S. at 328.

When Congress considered whether to reauthorize 
Section 5 in 2006, it examined the current problem of 
voting discrimination in covered jurisdictions, i.e., in ju ­
risdictions described by the criteria in Section 4(b) that 
had not yet bailed out of coverage. And Congress de­
termined that the record of discrimination in those ju ­
risdictions continued to justify the imposition of Section 
5’s preclearance requirement. Because the purpose of 
Section 5 has always been to rid (or sufficiently amelio­
rate) widespread voting discrimination in particular are­
as, Congress did not devise new coverage triggers in 
2006. See Pet. App. 285a-286a. Rather, it reasonably 
sought to determine whether indicia of ongoing voting 
discrimination in the currently covered jurisdictions 
warranted again extending Section 5.



24

Importantly, Congress retained the statutory bailout 
(and bail-in) provisions, such that a jurisdiction’s status 
as a covered jurisdiction need not remain static. The 
constitutionality of the VRA’s determination of covered 
jurisdictions can only be fairly judged in the context of 
the statute as a whole, including the statu te’s built-in 
mechanism for a jurisdiction to earn a change in its s ta­
tus from covered to non-covered (or vice-versa). Cov­
ered jurisdictions that can demonstrate they have com­
plied with specilic nondiscrimination requirements for a 
ten-year period can seek bailout. See 42 U.S.C. 
1973a(c), 1973b(a); Supplemental Apps. A & B, infra  
(listing jurisdictions that have been subject to preclear­
ance under Section 3(c) or have term inated coverage 
under Section 4(a)). This Court has consistently de­
scribed bailout as a critical limiting feature contributing 
to Section 5’s constitutionality, see City o f Boerne, 521 
U.S. at 533; South Carolina, 383 U.S. at 331, but peti­
tioner disregards the statu te’s bailout feature. Moreo­
ver, this Court’s recent decision in Northwest A ustin  
significantly expanded the number of jurisdictions eligi­
ble to apply for bailout—an expansion that has already 
made a material difference in the rate at which 
nondiscriminating jurisdictions are opting out of Section 
5, see Pet. App. 63a.1’ Section 5 is unique among legisla-

Since the current bailout provision became effective in 1984, bail­
out has been granted in 36 cases (reaching a total of 190 jurisdic­
tions). Half of those cases (accounting for 64% percent of bailed-out 
jurisdictions) have been filed since this Court’s decision in Northwest 
A ustin . Supplemental App. B at 4a-8a. Those 18 cases include the 
first ever bailouts from jurisdictions in Alabama, California, Georgia, 
and Texas; the first bailout from a jurisdiction in North Carolina 
since 1967; and the largest ever bailout, in term s of population, in 
Prince William County, Virginia. See Florida v. United States, No. 
ll-cv-1428, Docket entry No. 122-3, at 1111 34 (D.D.C. June 25, 2012)



25

tion enacted pursuant to Congress’s Reconstruction 
Amendments authority in that it both requires Congress 
to reconsider the propriety of the legislation on a regu­
lar basis, see 42 U.S.C. 1973b(a)(7) (“The Congress shall 
reconsider the provisions of this section at the end of 
the fifteen-year period following the effective date of the 
[2006 reauthorization].”), and permits jurisdictions sub­
jec t to the legislation to engage in self-help by demon­
strating that they no longer deserve to be covered.

The court of appeals properly credited the evidence 
before Congress demonstrating that “[t]he evil that § 5 
is meant to address”—racial discrimination in voting—is 
“concentrated in the jurisdictions singled out for pre­
clearance.” Northwest Austin , 557 U.S. at 203. In 
weighing that question, Congress and the court of ap­
peals looked to evidence of voting discrimination arising 
outside of the Section 5 process, including successful 
Section 2 suits, data regarding minority voter registra­
tion and turnout, federal observer coverage, and the 
continued existence of racially polarized voting at every 
level of government and in both partisan and nonparti­
san elections. Pet. App. 49a-61a; see id. at 232a-248a, 
287a-290a.

The data regarding Section 2 suits with outcomes fa­
vorable to minority plaintiffs is particularly notable. As 
the court of appeals explained, if voting discrimination 
were distributed evenly throughout the country, one 
would expect to find a smaller proportion of successful 
Section 2 cases in covered jurisdictions, where Section 5 
would have blocked implementation of new discrimina-

(three-judge court) (Berman Decl.). There are also two pending bail­
out actions in which the Attorney General has notified the plaintiff 
jui isdictions that he will consent to their bailout. See Supplemental 
App. B at 8a-9a.



26

tory voting practices. Pet. App. 55a. But Congress 
learned tha t 56% of all reported Section 2 decisions with 
outcomes favorable to minority plaintiffs arose in cov­
ered jurisdictions, even though covered jurisdictions 
contain less than 25% of the nation’s population. Id. at 
49a. As the court of appeals explained, “the rate of suc­
cessful [reported] section 2 cases in covered jurisdic­
tions * * * is nearly lour times the rate in non-covered 
jurisdictions.” Id. at49a-50a. The absolute rate of suc­
cess is also higher in covered jurisdictions, with “40.5 
percent of published section 2 decisions in covered ju ­
risdictions resu lting ] in favorable outcomes for plain­
tiffs, compared to only 30 percent in non-covered ju ris­
dictions.” Id. at 51a.

That evidence is significantly fortified by taking into 
account unreported and settled Section 2 suits with out­
comes favorable to minority plaintiffs. That information 
is contained in a study by the National Commission on 
the Voting Rights Act that was before Congress, and 
that was supplemented in this litigation with a study by 
Department of Justice historian Peyton McCrary.7 Pet. 
App. 51a. It reveals that 81 percent of all Section 2 cas­
es with outcomes favorable to minority plaintiffs were 
filed in the covered jurisdictions. Ibid. When the data 
are broken down by State, there is a very high correla­
tion between the jurisdictions with the highest ra te  of

Petitioner insists (Pet. 33-34) that the court of appeals erred in 
considering the post-enactment McCrary study. As discussed at note 
4, supra, this Court has previously relied on evidence that was not 
before Congress in determining w hether there is a sufficient record 
of constitutional violations to w arrant exercise of Congress’s en­
forcement authority under the Reconstruction Amendments. More­
over, most of the data that formed the basis of the McCrary study (61 
of 99 cases) was before Congress in 2006. See C.A. J.A. 88-101 110- 
116,436-444.



27

such cases, adjusted for population, and the jurisdictions 
that are covered by Section 5. Id. at 51a-53a; see C.A. 
J.A. 436-444. And two of the non-covered States with a 
high ra te  of Section 2 outcomes favorable to minority 
plaintiffs—Arkansas and New Mexico—have at times 
been subject to preclearance through the bail-in mecha­
nism. Pet. App. 52a; see Supplemental App. A, infra. 
That evidence reflects that the geographic scope of Sec­
tion 5 continues to map onto the jurisdictions with the 
worst records of voting discrimination. And any covered 
jurisdiction that has ceased its discriminatory ways may 
take steps to term inate its coverage through bailout. 
See South Carolina , 383 U.S. a t 331; 42 U.S.C. 
1973b(a).

Petitioner argues (Pet. 32-33) that the court of 
appeals erred by relying on Section 2 outcomes that 
did not involve express findings of intentional discrimi­
nation. Some of the Section 2 cases Congress consid­
ered did include such findings of unconstitutional dis­
crimination. See Pet. App. 232a. But because a court 
need not make an express finding of intentional discrim­
ination in order to find that a voting practice violates 
Section 2, see 42 U.S.C. 1973—and because courts are 
appropriately reluctant to make constitutional findings 
when other grounds will suffice to resolve a particular 
case—it is unsurprising that there were not more judi­
cial findings of unconstitutional conduct in the 2006 leg­
islative record. And, although a finding of discriminato­
ry effect does not always indicate an underlying discrim­
inatory purpose, the “totality of the circumstances” test 
employed in Section 2 effects cases is designed to identi­
fy facially neutral practices that are likely to be inten­
tionally discriminatory. See Thornburghs. Gingles, 478 
U.S. 30, 36-37 (1986).



2 8

In sum, the court of appeals carefully applied this 
Court’s decisions in reviewing the expansive record of 
voting discrimination Congress considered in 2006. The 
court concluded that Section 5’s current burdens on cov­
ered jurisdictions are justified by curren t needs, and 
that Section 5’s preclearance remedy applies where it is 
most needed. Because Sections 4(b) and 5 are appropri­
ate legislation to enforce the Fourteenth and Fifteenth 
Amendments, they do not violate the Tenth Amendment 
or Article IV of the Constitution, as petitioner argues 
(Pet. 1-2). This Court has explained that “the Recon­
struction Amendments by their very nature contemplate 
some intrusion into areas traditionally reserved to the 
States.” Lopez, 525 U.S. at 282-283; see id. at 284-285; 
Boerne,-521 U.S. at 518; City o f Rome, 446 U.S. at 179- 
180.

2. Petitioner is also incorrect in suggesting (Pet. 23- 
25) that the court of appeals’ decision conflicts with deci­
sions of this Court because the court of appeals mistak­
enly applied the type of “deferential review” applicable 
to “Article I authority or administrative agency actions” 
ra ther than the more stringent type of review applicable 
under Boerne 's congruence-and-proportionality analy­
sis. As petitioner admits (Pet. 24), the court of appeals 
acknowledged its duty to engage in a “more searching” 
review of the legislative record in light of Section 5’s 
unique features, see Pet. App. 21a. And the court did 
ju s t that. The court of appeals carefully delved into the 
thousands of pages of evidence before Congress in order 
to ascertain “whether Congress had evidence of a pat­
tern  of constitutional violations on the part of the [cov­
ered jurisdictions] in th[e] area” of voting discrimina­
tion. Nevada Dep’t o f H um an Res. v. Hi.bbs, 538 U.S. 
721, 729 (2003). In light of Section 5’s distinct federal-



29

ism implications, the court decided to conduct a “more 
searching” review than this Court’s review in the 
Boerne line of cases. Pet. App. 20a-21a.

In reviewing the legislative record, the court of ap­
peals applied the well-settled principle that it is “easier 
for Congress to show a pattern of * * * constitutional 
violations,” Hibbs, 538 U.S. at 736, when strict scrutiny 
applies because classifications subject to strict scrutiny 
are presumptively invalid. See Pet. App. 19a. When a 
state actor discriminates in voting on the basis of race, it 
infringes the most fundamental constitutional right on 
the most constitutionally suspect basis. See ibid.; see 
also Tennessee v. Lane , 541 U.S. 509, 561 (2004) (Scalia, 
J., dissenting) (“Giving § 5 [of the Fourteenth Amend­
ment] more expansive scope with regard to measures 
directed against racial discrimination by the States ac­
cords to practices that are distinctively violative of the 
principal purpose of the Fourteenth Amendment a prior­
ity of attention that this Court envisioned from the be­
ginning, and that has repeatedly been reflected in our 
opinions.”). The court of appeals’ recognition that such 
discriminatory actions are likely to be unconstitutional 
was faithful to this Court’s teachings in the area of Con­
gress’s authority to enforce the Fourteenth and Fif­
teenth Amendments.

Although the court of appeals did not defer to Con­
gress’s determination that there remains a constitution­
al problem in need of a legislative solution, it did accord 
some deference to Congress on its choice of a legislative 
response to the identified problem. Pet. App. 47a. That, 
too, is perfectly in keeping with this Court’s cases. I t is 
the role of this Court to define what the Constitution 
prohibits. But once Congress identifies a serious consti­
tutional problem in accordance with this Court’s hold-



30

ings, the Constitution assigns to the legislature principal 
responsibility for determining how to remedy that prob­
lem. Congress is not without limits in its choices—the 
choice must at a minimum be rational and in the court of 
appeals’ view must be a congruent and proportional re­
sponse to the identified problem. But it is Congress that 
has expertise in choosing among available legislative op­
tions. This Court reaffirmed that principle in Northwest 
A ustin , stating that “ft]he Fifteenth Amendment em­
powers ‘Congress,’ not the Court, to determine in the 
first instance what legislation is needed to enforce it.” 
557 U.S. at 205; see Boerne, 521 U.S. at 536; cf. Lane, 
541 U.S. at 564 (Scalia, J., dissenting) (“I shall hence­
forth apply the permissive McCulloch standard to con­
gressional measures designed to remedy racial discrimi­
nation by the S tates.”).

That is particularly true—and deference is particu­
larly w arranted—when Congress “ha[s] already tried 
unsuccessfully to address” the relevant problem through 
other legislative means, Hihbs, 538 U.S. at 737, but has 
found the problem to be “difficult and intractable,” 
Kimel v. Florida Bd. o f Regents, 528 U.S. 62, 88 (2000). 
That is quintessential^ the situation here. Before it re­
sorted to the strong medicine of Section 5, Congress 
tried unsuccessfully to address the problem of voting 
discrimination in particular areas of the country through 
other means. See South Carolina, 383 U.S. at 313. 
Cognizant of the unusual nature of Section 5, Congress 
has required itself to periodically review the statute’s 
operation. In the course of doing so, Congress has be­
come exceedingly familiar with its implementation and 
has periodically amended aspects of its operation (by,
e.g., extending its geographic scope, liberalizing the 
bailout mechanism, and amending its substantive stand-



31

ard). In 2006, Congress again familiarized itself with 
the operation of the statute; 98 Senators and 390 Repre­
sentatives then voted to extend Section 5’s application in 
the currently covered jurisdictions for an additional 25 
years, subject to a review by Congress after 15 years. 
The court of appeals applied settled legal principles in 
affirming Congress’s nearly unanimous determination 
that Section 5 remains an appropriate means of enforc­
ing the guarantees of the Fourteenth and Fifteenth 
Amendments.

3. Petitioner urges this Court to g rant the petition 
for a writ of certiorari in order to review particular 
(sometimes hypothetical) applications of Section 5. See 
Pet. 19-20. Dissenting Judge Williams also expressed 
concern about particular (sometimes hypothetical) Sec­
tion 5 objections. See Pet. App. 73a, 103a-l 10a.8 Even if 
there were merit to those concerns, such case-specific 
issues would not provide a legitimate basis for sustain­
ing a facial attack on the constitutionality of Section 5— 
and therefore provide no basis for granting the petition 
in this case.

For example, petitioner and Judge Williams both cite 
recent state laws requiring in-person voters to show

8 Certain of the burdens Judge Wiliiams identified were based ei­
ther on hypothetical applications of Section 5 tha t Judge Williams did 
not indicate had ever been found in covered or non-covered jurisdic­
tions, or on a misunderstanding of the way in which Section 5 is and 
has been applied. See Pet. App. 73a (hypothesizing computer-based 
redistricting that does not take into account any communities of in­
terest, racial or otlierwi.se); id. a t 103a (suggesting that covered ju ­
risdictions are not perm itted to adopt voter ID requirements); id. at 
104a-110a (suggesting that Section 5 protects the right of “a minority 
group’s majority” to elect its candidate of choice without taking into 
account whether there is material racially polarized voting in the rel­
evant jurisdiction) (emphasis omitted).



3 2

identification in order to cast a vote. Pet. 20; Pet. App. 
103a. Relying on this Court’s decision in Crawford v. 
M arion County Election Board, 553 U.S. 181 (2008), 
both argue that it is unfair that non-covered jurisdic­
tions can enact such laws while covered jurisdictions 
cannot. This premise is mistaken. Although the A ttor­
ney General has objected to voter-ID requirements re ­
cently enacted by two covered States (South Carolina 
and Texas), he has not objected to voter-ID require­
ments adopted by several other fully or partially cov­
ered States (e.g., Arizona, Georgia, Louisiana, Michigan, 
New Hampshire, and Virginia). A three-judge court re­
cently concluded that Texas’s voter-ID law could not be 
implemented because the State failed to establish that it 
will not discriminate against minority voters. Texas v. 
Holder, No. 12-cv-128, 2012 WL 3743676 (D.D.C. Aug. 
30, 2012). But the Texas law at issue in that case signifi­
cantly differs from the Indiana law at issue in Crawford. 
See id. at *13. Moreover, the Court in Crawford had no 
occasion to consider whether Indiana’s law had the ef­
fect or intent of discriminating on the basis of race. See 
553 U.S. at 202-203 (noting that the Court was consider­
ing the law’s application to “all Indiana voters”). Be­
cause all S tates are subject to Section 2, all States are 
prohibited from adopting voter-ID requirements that 
have the purpose or effect of discriminating on the basis 
of race. It is true that jurisdictions covered by Section 5 
bear the burden of demonstrating that their laws do not 
have such an intent or effect; but the shift of the burden 
that comes with Section 5 coverage is justified for the 
reasons set forth above.

Petitioner also complains (Pet. 20) that the State of 
Florida was required to preclear its changes to early 
voting hours while non-covered States are not required



33

to have early voting hours at all. Of course, covered ju ­
risdictions are also not required to provide early voting 
hours. But once they do, they may not change existing 
practices if the change would be discriminatory. In any 
case, this Court may review any particular application of 
Section 5 on direct appeal from a three-judge court. The 
concerns expressed by petitioner and Judge Williams 
that Section 5 is being applied in an inappropriate man­
ner-co n cern s  the government vigorously disputes—are 
properly raised in challenges to particular applications 
ra ther than in this facial challenge to the constitutionali­
ty of an act of Congress.

4. Denying review of this facial challenge would ena­
ble development of a more complete record on the oper­
ation and effect of the sta tu te ’s bailout mechanism fol­
lowing this Court’s decision in Northwest Austin . As 
explained, the ability of covered jurisdictions to make 
use of the bailout mechanism has increased substantially 
in the wake of tha t decision. See pp. 24-25 & n.6, supra.. 
An understanding of the way in which the bailout mech­
anism works in practice is critical to an informed as­
sessm ent of the constitutionality of the statutory cover­
age provision. Insofar as the Court may be inclined in 
the future to g rant review of the question of the consti­
tutionality of the 2006 reauthorization, awaiting review 
until a more fulsome record on bailouts develops in the 
wake of Northwest A ustin  would facilitate a more in­
formed analysis of the statu te’s continued constitutional­
ity.



34

CONCLUSION
The petition for a writ of certiorari should be denied. 
Respectfully submitted.

Donald B. Verrilli, J r.
Solicitor General 

Thomas E. Perez 
A ssistan t A ttorney General 

J essica Dunsay Silver 
Erin H. Flynn 

Attorneys

Se p t e m b e r  2012



APPENDIX A

Jurisdictions That Have Been Ordered by a District 
Court to Comply With Preclearance Requirement 

Pursuant to Bail-in Mechanism in Section 3(c) of the 
Voting Rights Act

1. Thurston County, Nebraska, see United States v. 
Thurston Cnty., C.A. No. 78-0-380 (D. Neb. May 
9, 1979);

2. Escambia County, Florida, see M cM illan  v. E s­
cambia Cnty., C.A. No. 77-0432 (N.D. Fla. Dec. 
3, 1979);

3. Alexander County, Illinois, see Woodring v. 
Clarke, C.A. No. 80-4569 (S.D. 111. Oct. 31, .1983);

4. Gadsden County School District, Florida, see 
N.A.A.C.P. v. Gadsden Cnty Sch. Bd., 589 F. 
Supp. 953 (N.D. Fla. Mar. 6, 1984);

5. State of New Mexico, see Sanchez v. Anaya,
C.A. No. 82-0067M (D.N.M. Dec. 17, 1984);

6. McKinley County, New Mexico, see United 
States v. McKinley Cnty., No. 86-0029-C (D.N.M. 
Jan. 13, 1986);

7. Sandoval County, New Mexico, see United 
States v. Sandoval Cnty., C.A. No. 88-1457-SC 
(D.N.M. May 17, 1990);

8. City of Chattanooga, Tennessee, see Brown v. 
Board o f Comm'rs o f City o f Chattanooga, No. 
CIV-1-87-388 (E.D. Tenn. Jan. 18, 1990);

(la)



2a

9. Montezuma-Cortez School D istrict RE01, Colo­
rado, see Cuthair v. Montezuma-Cortez Sch. 
Dist. No. RE-1, No. 89-C-964 (D. Colo. Apr. 8, 
1990);

10. State of Arkansas, see Jeffers v. Clinton, 740 F. 
Supp. 585 (E.D. Ark. May 16, 1990), appeal dis­
missed, 498 U.S. 1129 (1991);

11. Los Angeles County, California, see Garza & 
United States v. Los Angeles Cnty., C.A. Nos. 
CV 88-5143 KN (Ex) and CV 88-5435 KN 
(Ex) (C.D. Cal. Apr. 25, 1991);

12. Cibola County, New Mexico, see United States v. 
Cibola Cnty., C.A. No. 93-1134-LH/LFG (D.N.M. 
Apr. 21, 1994);

13. Socorro County, New Mexico, see United States 
v. Socorro Cnty., C.A. No. 93-1244-JP  (D.N.M. 
Apr. 11, 1994);

14. Alameda County, California, see United States v. 
Alameda Cnty., C.A. No. C95-1266 (SAW) (N.D. 
Cal. Jan. 22, 1996);

15. Bernalillo County, New Mexico, see United 
States v. Bernalillo Cnty., C.A. No. 93-156- 
BB/LCS (D.N.M. Apr. 22,1998);

16. Buffalo County, South Dakota, see Kirke v. B uf­
falo Cnty., C.A. No. 03-CV-3(>ll (D.S.D. Feb. 10, 
2004);

17. Charles Mix County, South Dakota, see 
Blackmoon v. Charles M ix Cnty., C.A. No. 05- 
CV-4017 (D.S.D. Dec. 4, 2007); and



3a

18. Village of Port Chester, New York, see United 
States v. Village o f Port Chester, C.A. No. 06-CV- 
15173 (S.D.N.Y. Dec. 22, 2006).



4a

APPENDIX B

Covered Jurisdictions That Have Successfully 
Terminated Section 5 Coverage Pursuant to Bail-out 
Mechanism in Section 4(a) of the Voting Rights Act

Jurisdictions Successfully Bailed Out of Section 5 Cov­
erage Before August 5, 1984

1. Wake County, North Carolina, see Wake Cnty. v. 
United States, No. 1198-66 (D.D.C. Jan. 23, 
1967);

2. Curry, McKinley and Otero Counties, New Mex­
ico, see New Mexico v. United States, No. 76- 
0067 (D.D.C. July 30, 1976);

3. Towns of Cadwell, Limestone, Ludlow, Nashville, 
Reed, Woodland, Connor, New Gloucester, Sulli­
van, W inter Harbor, Chelsea, Sommerville, Car- 
roll, Charleston, Webster, Waldo, Beddington, 
and Cutler, Maine, see M aine v. United States, 
No. 75-2125 (D.D.C. Sept. 17, 1976);

4. Choctaw and McCurtain Counties, Oklahoma, 
see Choctaiv and M cCurtain Cntys. v. United 
States, No. 76-1250 (D.D.C. May 12, 1978);

5. Campbell County, Wyoming, see Campbell Cnty. 
v. United States, No. 82-1862 (D.D.C. Dec 17
1982) ;

6. Towns of Amherst, Ayer, Belchertown, Bourne, 
Harvard, Sandwich, Shirley, Sunderland, and 
Wrentham, Massachusetts, see Massachusetts v. 
United States, No. 83-0945 (D.D.C. Sept. 29
1983) ;



7. Towns of Groton, Mansfield, and Southbury, 
Connecticut, see Connecticut v. United States, 
No. 83-3103 (D.D.C. June 21, 1984);

8. El Paso County, Colorado, see Board o f Cnty. 
Com m ’rs v. United States, No. 84-1626 (D.D.C. 
July 30, 1984);

9. Honolulu County, Hawaii, see Waihee v. United 
States, No. 84-1694 (D.D.C. July 31, 1984); and

10. Elmore County, Idaho, see Idaho v. United 
States, No. 82-1778 (D.D.C. July 31, 1984).

Jurisdictions Successfully Bailed Out of Section Cov­
erage After August 5, 1984

1. City of Fairfax, Virginia (including City of Fair­
fax School Board), see City o f Fairfax  v. Reno, 
No. 97-2212 (D.D.C. Oct. 21, 1997);'

2. Frederick County, Virginia (including Frederick 
County School Board; Towns of Middletown and 
Stephens City; and Frederick County Shawnee- 
land Sanitary District), see Frederick Cnty. v. 
Reno, No. 99-941 (D.D.C. Sept. 10, 1999);

3. Shenandoah County, Virginia (including Shenan­
doah County School Board; Towns of Edinburg, 
Mount Jackson, New Market, Strasburg, Toms 
Brook, and Woodstock; Stoney Creek Sanitary 
District; and Toms Brook-Maurertown Sanitary 
District), see Shenandoah Cnty. v. Reno, No. 99- 
992 (D.D.C. Oct. 15, 1999);



6a

4. Roanoke County, Virginia (including Roanoke 
County School Board and Town of Vinton), see 
Roanoke Cnty. v. Reno, No. 00-1949 (D.D.C. Jan 
24, 2001);

5. City of Winchester, Virginia, see City o f W in­
chester v. Reno, No. 00-3073 (D.D.C. June 1, 
2001);

6. City of Harrisonburg, Virginia (including H arri­
sonburg City School Board), see City o f H arri­
sonburg v. Reno, No. 02-289 (D.D.C. Apr. 17, 
2002);

7. Rockingham County, Virginia (including Rock­
ingham County School Board and Towns of 
Bridgewater, Broadway, Dayton, Elkton, Grot­
toes, Mt. Crawford, and Timberville), see Rock­
ingham Cnty. v. Reno, No. 02-391 (D.D.C. May 
24, 2002);

8. Warren County, Virginia (including Warren 
County School Board and Town of Front Royal), 
see Warren Cnty. v. Ashcroft, No. 02-1736 
(D.D.C. Nov. 26, 2002);

9. Greene County, Virginia (including Greene 
County School Board and Town of Stan- 
dardsville), see Greene Cnty. v. Ashcroft, No. 03- 
1877 (D.D.C. Jan. 19, 2004);

10. Pulaski County, Virginia (including Pulaski 
County School Board and Towns of Pulaski and 
Dublin), see Pulaski Cnty. v. Gonzales, No. 05- 
1265 (D.D.C. Sept. 27, 2005);



7a

11. Augusta County, Virginia (including Augusta 
County School Board and Town of Craigsville), 
see Augusta  Cnty. v. Gonzales, No. 05-1885 
(D.D.C. Nov. 30, 2005);

12. City of Salem, Virginia, see City o f Salem  v. 
Gonzales, No. 06-977 (D.D.C. July 28, 2006);

13. B otetourt County, Virginia (including Botetourt 
County School Board and Towns of Buchanan, 
Fincastle, and Troutville), see Botetourt Cnty. v. 
Gonzales, No. 06-1052 (D.D.C. Aug. 28, 2006);

14. Essex County, Virginia (including Essex County 
School Board and Town of Tappahannock), see 
Essex Cnty. v. Gonzales, No. 06-1631 (D.D.C. 
Jan. 31, 2007);

15. Middlesex County, Virginia (including Middlesex 
County School Board and Town of Urbanna), see 
M iddlesex Cnty. v. Gonzales, No. 07-1485 
(D.D.C. Jan. 7, 2008);

16. Amherst County, Virginia (including Town of 
Amherst), see Am herst Cnty. v. M ukasey, No. 
08-780 (D.D.C. Aug. 13, 2008);

17. Page County, Virginia (including Page County 
School Board and Towns of Luray, Stanley, and 
Shenandoah), see Page Cnty. v. M ukasey, No. 
08-1113 (D.D.C. Sept. 15, 2008);

18. Washington County, Virginia (including Wash­
ington County School Board and Towns of 
Abington, Damascus, and Glade Spring), see 
Washington Cnty. v. M ukasey, No. 08-1112 
(D.D.C. Sept. 23, 2008);



8a

19. Northwest Austin Municipal Utility District 
Number One, Texas, see Northwest A ustin  
Mun. Util. Dist. No. One v. M ukasey, No. OS- 
1384 (D.D.C. Nov. 3, 2009);

20. City of Kings Mountain, North Carolina, see 
City o f Kings M ountain  v. Holder, No. 10-1153 
(D.D.C. Oct. 22,2010);

21. City of Sandy Springs, Georgia, see City o f 
Sandy Springs v. Holder, No. 10-1502 (D.D.C. 
Oct. 26, 2010);

22. Jefferson County Drainage District Number 
Seven, Texas, see Jefferson Cnty. Drainage Dist. 
No. Seven  v. Holder, No. 11-461 (D.D.C. June 6, 
2011);

23. Alta Irrigation District, California, see A lta  I r ­
rigation Dist. v. Holder, No. 11-758 (D.D.C. July 
15, 2011);

24. City of Manassas Park, Virginia, see City o f 
M anassas Park v. Holder, C.A. No. 11-749 
(D.D.C. Aug. 3, 2011);

25. Rappahannock County, Virginia (including Rap­
pahannock County School Board and Town 
of Washington), see Rappahannock Cnty. v. 
Holder, C.A. No. 11-1123 (D.D.C. Aug. 9, 2011);

26. Bedford County, Virginia (including Bedford 
County School Board), see Bedford Cnty. v. 
Holder, No. 11-499 (D.D.C. Aug. 30, 2011);

27. City of Bedford, Virginia, see City o f Bedford v. 
Holder, No. 11-473 (D.D.C. Aug. 31, 2011);

f V



9a

28. Culpeper County, Virginia (including Culpeper 
County School Board and Town of Culpeper), see 
Culpeper Cnty. v. Holder, No. 11-1477 (D.D.C. 
Oct. 3, 2011);

29. James City County, Virginia (including Wil- 
liamsburg-James City County School Board), 
see Jam es City Cnty. v. Holder, No. 11-1425 
(D.D.C. Nov. 9, 2011);

30. City of Williamsburg, Virginia, see City o f W il­
liamsburg  v. Holder, No. 11-1415 (D.D.C. Nov. 
28,2011);

31. King George County, Virginia (including King 
George County School District), see King 
George Cnty. v. Holder, No. 11-2104 (D.D.C. 
April 5, 2012);

32. Prince William County, Virginia (including 
Prince William County School District and 
Towns of Dumfries, Haymarket, Occoquan, and 
Quantico), see Prince W illiam  Cnty. v. Holder, 
No. 12-14 (D.D.C. April 10, 2012);

33. City of Pinson, Alabama, see City o f Pinson  v. 
Holder, No. 12-255 (D.D.C. April 20, 2012);

34. Wythe County, Virginia (including Wythe County 
School Board and Towns of Rural R etreat and 
Wytheville), see Wythe Cnty. v. Holder, No. 12- 
719 (D.D.C. June 18, 2012);

35. Grayson County, Virginia (including Grayson 
County School Board and Towns of Fries, Inde­
pendence, and Troutdale), see Grayson Cnty. v. 
Holder, No. 12-718 (D.D.C. July 20, 2012); and



10a

36. Merced County, California (including approxi­
mately 84 subjurisdictions), see Merced Cnty. v. 
Holder, No. 12-354 (D.D.C. Aug. 31, 2012).

Bailout Actions Currently Pending

1. Carroll County, Virginia (including Carroll 
County School District and Town of Hillsville), 
see Carroll Cnty. v. Holder, No. 12-1166 
(D.D.C.), complaint filed July 17, 2012; and

2. Craig County, Virginia (including Craig County 
School District and Town of New Castle), see 
Craig Cnty. v. Holder, No. 12-1179 (D.D.C.), 
complaint filed July 18, 2012.







No. 12-96

IN THE

upmra Olourt of t\\t

S h e l b y  C o u n t y , A l a b a m a ,
__ __ Petitioner,

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

Respondents.

ON PETITION. FOR A WRIT OF CERTIORARI TO THE UNITED STATES 
COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF IN OPPOSITION 
FOR RESPONDENTS-INTERVENORS

D e b o  P .  A d e g b i l e  
Acting Director Counsel 

E l i s e  C .  B o d d i e  
R y a n  P .  H a y g o o d  
D a l e  E .  H o
N A A C P  L e g a l  D e f e n s e  

&  E d u c a t i o n a l  F u n d ,  I n c .
9 9  H u d s o n  S t r e e t ,  1 6 t h  F l o o r  
N e w  Y o r k ,  N Y  1 0 0 1 3  
( 2 1 2 )  9 6 5 - 2 2 0 0

Counsel fo r  Earl Cunningham, 
Harry Jones, Albert Jones, 
Ernest Montgomery, 
Anthony Vines and 
William Walker

J o n  M .  G r e e n b a u m  
Counsel o f Record 

R o b e r t  A .  K e n g l e  
M a r c i a  J o h n s o n - B i a n c o  
M a r k  A .  P o s n e r  
L a w y e r s ’ C o m m i t t e e  f o r  C i v i l  

R i g h t s  U n d e r  L a w  
1 4 0 1  N e w  Y o r k  A v e n u e ,  N W ,

S u i t e  4 0 0
W a s h i n g t o n ,  D C  2 0 0 0 5  
( 2 0 2 )  6 6 2 - 8 3 2 5

j g r e e n b a u m @ l a w y e r s c o m m i t t e e . o r g

J o h n  M .  N o n n a
P a t t o n  B o g g s  L L P
1 1 8 5  A v e n u e  o f  t h e  A m e r i c a s ,

3 0 t h  F l o o r  
N e w  Y o r k ,  N Y  1 0 0 3 6  
( 6 4 6 )  5 5 7 - 5 1 7 2

Counsel fo r  Bobby Lee Harris 
0Counsel continued on inside cover)

mailto:jgreenbaum@lawyerscommittee.org


L aughlin M cD onald 
N ancy  G. A budu 
A m erican  Civil L ib erties  

U nion F o u n d a tio n  
230 P eac h tree  S tree t, NW, 

S u ite  1440
A tlan ta, GA 30303-1227 
(404) 523-2721

S teven  R. S h ap iro  
A m erican  Civil L ib erties  

U nion F o u n d a tio n  
125 B road S tre e t 
New York, NY 10004 
(212) 549-2500

D avid I. S choen  
2800 Zelda R oad, S u ite  100-6 
M ontgom ery, AL 36106 
(334) 395-6611

Counsel fo r  Bobby Pierson, 
Willie Goldsmith, Sr., Mary 
Paxton-Lee, Kenneth Dukes, 
and The Alabama. State 
Conference o f the National 
Association fo r  the 
Advancement o f Colored. 
People, Inc.

Kim K eenan  
V ictor L. G oode 
NAACP
4805 Mt. H ope D rive 
B altim o re , MD 21215-3297 
(410) 580-5120

Counsel fo r  The Alabama 
State Conference o f the 
National Association fo r  
the Advancement o f Colored 
People, Inc.



COUNTER-QUESTION PRESENTED
W hether Congress properly exercised its 

enforcement powers under the Fourteenth and 
Fifteenth Amendments when it reauthorized Section 
5 and Section 4(b) of the Voting Rights Act in 2006 
based upon the record of ongoing discrimination in 
the covered jurisdictions.

1



CORPORATE DISCLOSURE STATEMENT
P ursuan t to Rule 29.6, none of the 

Respondents-Intervenors in this case has a parent 
corporation or issues any stock. The Alabam a State 
Conference of the National Association of Colored 
People is an affiliate of the national NAACP.

11



COUNTER-QUESTION PRESEN TED ....................... j

CORPORATE DISCLOSURE STATEMENT............. ii

TABLE OF AUTHORITIES........................................... iv

REASONS FOR DENYING THE W RIT.......................l

I. The Court of Appeals and D istrict Court
Applied a S tandard of Review That Followed 
This Court’s Precedents........................................3

II. The Court of Appeals and D istrict Court
Directly Answered the Questions Set Forth in 
Nw. A u s tin ............................................................... 5

III. The Court of Appeals Correctly Rejected
Shelby County’s Attem pts to Arbitrarily 
Define Away Relevant Evidence.......................21

IV. Post-Enactm ent Evidence Corroborates the
Court of A ppeals...................................................26

V. The Constitutionality of the 2006 Amend­
ments is Not Properly Before the Court......... 30

VI. The Question Presented is Incorrect........... . 32

CONCLUSION..................................................................3 5

TABLE OF CONTENTS

iii



CASES
Allen u. State Bd. o f Elections,

393 U.S. 544 (1969)....................................................  23

Bd. o f Trustees o f Univ. o f Ala. v. Garrett,
531 U.S. 356 (2001)......................................... 5, 11, 33

City o f Boerne v. Flores, 521 U.S. 507 (1997)....passim

City o f Rome u. United States,
446 U.S. 156 (1980)............................................ passim

Crawford v. Marion County Election Bd.,
553 U.S. 181 (2008)........................................................2

Eldred u .  Ashcroft, 537 U.S. 186 (2003)......................  24
Florida u. United States, no. l:ll-cv-01428,

2012 U.S. Dist. LEXIS 115647
(D.D.C. August 16, 2012)........................................... 27

Georgia v. Ashcroft, 539 U.S. 461 (2003)..................  31
Georgia v. United States,

411 U.S. 526 (1973)......................................  18, 20, 23
Gomillion v. Lightfoot, 364 U.S. 339 (1960)............. 34

Hunter u. Underwood, 471 U.S. 222 (1985)..............  33
Janis v. Nelson, 2009 U.S. Dist. LEXIS 121086 

(D. S.D. Dec. 30, 2009)..................................................3

Jeffers v. Clinton,
740 F.Supp. 585 (E.D. Ark. 1990)...........................  13

Kimel u. Fla. Bd. o f Regents, 528 U.S. 62 (2000)....  19
Lopez v. Monterey County,

525 U.S. 266 (1999)......................................  18, 19,33

Louisiana v. United States, 380 U.S. 145 (1965)....  34

TABLE OF AUTHORITIES

iv



LULAC u. Perry, 548 U.S. 399 (2006)..........  19, 29, 33
Nev. Dep't. of Human Res. v. Hibbs,

538 U.S. 721 (2003)............................................... 5, 20

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

Nw. Austin Mun. Util. Dist. No. One v. Mukasey,
573 F.Supp.2d 221 (D.D.C. 2008)...............................9

Reno v. Bossier Parish School Board,
528 U.S. 320 (2000)..................................................... 31

Rogers v. Lodge, 458 U.S. 613 (1982).........................  33
Shelby County v. Holder,

811 F.Supp. 2d 424 (2011)...........................................2

Singleton u. Wulff, 428 U.S. 106 (1976)....................  30
Sm ith  v. Allwright, 321 U.S. 649 (1944)...................  34
South Carolina u. Katzenbach,

383 U.S. 301 (1966)............................................ passim

Spietsma v. Mercury Marine, 537 U.S. 51 (2002).... 30
Tennessee v. Lane, 541 U.S. 509 (2004)................ 5, 20
Texas u. Holder, no. l:12-cv-00128,

2012 U.S. Dist. LEXIS 127119 (D.D.C.)................28
Texas v. United States, no. 1:1 l-cv-1303,

2012 U.S. Dist. LEXIS 121685 (D.D.C.).........28, 29
Turner Broadcasting System, Inc. v. F.C.C.,

520 U.S. 180 (1997).................................................... 24

United States Dept, o f Labor v. Triplett,
494 U.S. 715 (1990)....................................................  24

Washington State Grange u. Washington State 
Republican Party, 552 U.S. 442 (2008)................... 2

v



White v. Regester, 412 U.S. 755 (1973)...............  33, 34

Youakim v. Miller, 425 U.S. 231 (1976)....................  30

CO NSTITUTION & STATUTES

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

U.S. Const, amend. XV..........................................passim

Voting Rights Act, 42 U.S.C. § 1973 et seq. ... ...passim
42 U.S.C. § 1973a........................................................  15
42 U.S.C. § 1973aa.......................................................22

42 U.S.C. § 1973a(c).....................................................16
42 U.S.C. § 1973b(a)...................................................  15

42 U.S.C. 1973b(b).............................................. passim

42 U.S.C. 1973c....................................................passim
120 Stat. 577, sec. 2(b)................................................... 12

120 Stat. 577, sec. 2(b)(4)&(5).....................................  13
120 Stat. 577, sec. 2(b)(6).............................................. 31

ADM INISTRATIVE & LEGISLATIVE 
M ATERIALS
152 Cong. Rec. H5143-5207 

(daily ed. July 13, 2006)............................................  27
152 Cong. Rec. S8012

(daily ed. July 20, 2006)............................................  27

H R. Rep. No. 109-478...........................................passim

Renewing the Temporary Provisions of the 
Voting Rights Act: Legislative Options After 
LULAC v. Perry. Hearing Before the Subcomm. 
on the Constitution, Civil Rights and Property

vi



Rights of the S. Comm, on the Judiciary,
109th Cong. (2006)................................................  7t 14

S. Rep. No. 109-295 (2006).........................................  27

S. Rep. No. 417 (1982)..................................................  15

Section 5 Objection Letter from Grace Chung Becker, 
Acting A ssistant A ttorney General, to Dan Head, 
Esq., August 25, 2008.................................................. 8

U nderstanding the Benefits and Costs of Section 5 
Pre-Clearance: Hearing Before the S. Comm, on 
the Judiciary, 109th Cong. 90 (2006)...................... 7

Voting Rights Act: Evidence of Continued Need: 
Hearing Before the Subcomm. on the Constitution, 
of the H. Comm, on the Judiciary, 109th Cong. 
(2006)...................................................................... 14) 21

Voting Rights Act: Section 5 of the Act -  History, 
Scope, and Purpose: Hearing Before the Subcomm. 
on the Constitution, of the H. Comm, on the 
Judiciary, 109th Cong. (2005)..................  7, 8, 10, 21

OTHER AUTHORITIES

Blacksher, et al., Voting Rights In Alabama:
1982-2006, 17 SO. CAL. REV. L.AW & SOC. JUST. 
249, (2008)...................................................................  ]()

vii



Respondents-Intervenors Earl Cunning­
ham, Harry Jones, Albert Jones, Ernest 
Montgomery, Anthony Vines, William W alker, Bobby 
Pierson, Willie Goldsmith, Sr., M ary Paxton-Lee, 
Kenneth Dukes, A labama State Conference of the 
National Association for the Advancement of Colored 
People, and Bobby Lee H arris respectfully subm it 
this Brief in Opposition to the Petition for Certiorari 
filed in this case.

REASONS FOR DENYING THE WRIT
After giving due consideration to th is Court’s 

decision in Nw. A ustin  Mun. Util. Dist. No. One v. 
Holder, 557 U.S. 193 (2009) (“Nw. A u s tin ) , the Court 
of Appeals for the District of Columbia Circuit 
correctly upheld the constitutionality of the 2006 
reauthorization of Section 5 and Section 4(b) of the 
Voting Rights Act of 1965 against Shelby County’s 
facial challenge. 42 U.S.C. 1973c; 42 U.S.C. 
1973b(b). Review by this Court is not required.

Shelby County’s prim ary argum ent for 
granting certiorari is insubstantial. The decisions 
below by the Court of Appeals and the D istrict Court 
follow -  and do not conflict with -  th is Court’s 
previous decisions. The Court of Appeals, like the 
D istrict Court, upheld Section 5 and Section 4(b) 
based upon the rationale and clear dictates of Nw. 
Austin. The decision of the Court of Appeals -  
w ritten by Judge Tatel and joined by Judge Griffith - 
- carefully and scrupulously considered whether 
Section 5’s ‘“curren t burdens’” are ‘“justified by 
current needs,”’ and w hether Section 4(b)’s 
‘“disparate geographic coverage is sufficiently related 
to the problem th a t it ta rgets.’” App. a t 14a-15a; 679

1



F.3d 848, 858-59 (D.C. Cir. 2012) (quoting Nw. 
Austin, 557 U.S. a t 203). Likewise, the District 
Court s detailed and tightly reasoned opinion fully 
weighed the lengthy record upon which the Court of 
Appeals subsequently relied, applied the same legal 
standards, and arrived a t the same conclusions. 
App. a t 111a; Shelby County v. Holder, 811 F.Supp 
2d 424 (2011).

No other jurisprudential concerns weigh 
heavily in favor of granting certiorari. If certiorari is 
denied the facial constitutionality of Section 5 in the 
District of Columbia Circuit will be settled with no 
further need for this Court’s review. Facial 
challenges being generally disfavored,1 as-applied 
challenges would remain available if certiorari is 
denied. Should a federal court in another circuit 
reach a different conclusion on the facial question 
(assuming th a t anything other than as-applied 
challenges can be raised in a Section 5 enforcement 
action), then a grant of certiorari a t tha t time to 
resolve the circuit split would be consistent with this 
Court’s jurisprudence.2

1 See Crawford v. Marion County Election Bd., 553 U.S. 181, 
200 (2008); Washington State Grange u. Washington State  
Republican Party, 552 U.S. 442, 450-51 (2008).

There is no sp lit among the lower courts on the questions 
presented here. Only one other court, the  United S tates District 
Court for the D istrict of South Dakota, has confronted the 
question of Section 5’s constitutionality since the 2006 
reauthorization. In th a t case, the S ta te  of South Dakota 
challenged the constitutionality  of the 2006 reauthorization of 
Section 5, relying on the same argum ents made in this case; the 
district court rejected the sta te ’s argum ent th a t Section 5 
preclearance and the Section 4(b) coverage provision are now

2



I. The Court o f A ppeals and D istr ict Court 
A pplied a Standard o f R eview  That 
F ollow ed T his Court’s P reced en ts
The Court of Appeals began its analysis with 

an extended consideration of the appropriate 
standard of review. The court noted th a t the 
disagreem ent which Nw. Austin  had left unresolved 
-  w hether the constitutionality of the 2006 
reauthorization should be analyzed via “congruence 
and proportionality,” as set out in City o f Boerne v. 
blores, 521 U.S. 507 (1997), or via the “any rational 
m eans” standard  discussed in South Carolina v. 
Katzenbach, 383 U.S. 301, 324 (1966) -  had
continued, with Shelby County arguing for the 
former and the Attorney General advocating for the 
latter.

The Court of Appeals concluded th a t Nw. 
Austin  sent “a powerful signal th a t congruence and 
proportionality is the appropriate standard  of 
review.” App. a t 16a.* 3 The court then considered in 
detail how this standard  should be applied, looking 
to this Court’s prior decisions applying “congruence 
and proportionality,” and this Court’s decisions in

outdated. See Jan is v. Nelson, 2009 U.S. Dist. LEXIS 121086 at 
*26-30 (D. S.D. Dec. 30, 2009).

3 Judge T atel’s opinion observed th a t the two questions posed 
by th is Court in Nw. A ustin  define an inquiry th a t seems 
analogous to the City of Boerne “congruence and 
proportionality” inquiry. By applying th is standard , which is 
“arguably more rigorous” than  w hat is generally described as 
the ‘“ra tionality”’ stan d ard  employed in South  Carolina u. 
Katzenbach, App. a t 16a, the ruling of the Court of Appeals 
should stand regardless of w hether City o f Boerne or 
Katzenbach controls.

3



Katzenbach and City o f Rome u. United States, 446 
U.S. 156 (1980), upholding the constitutionality of 
Section 5. As the Court of Appeals noted, City of 
Boerne itself “relied quite heavily on Katzenbach for 
the proposition th a t section 5, as originally enacted 
and thrice extended, was a model of congruent and 
proportional legislation.” App. a t 16a. The District 
Court similarly conducted its comprehensive review 
of the record employing a “congruence and 
proportionality” analysis. App. a t 161a-162a.

Shelby County asserts th a t the Court of 
Appeals “deferred to Congress in ways alien to the 
Boerne line of decisions,” Petition a t 23, and th a t this 
“infected every aspect of [the court’s] analysis.” Id. a t 
24. Yet, the County nowhere identifies precisely how 
or where the Court of Appeals introduced such 
“alien” deference. This Court in fact has emphasized, 
as the Court of Appeals recognized, th a t the 
deference about which Shelby County complains is a 
core constitutional principle: “when Congress acts 
pursuant to its enforcement authority under the 
Reconstruction Amendments, its judgm ents about 
‘w hat legislation is needed . . .  are entitled to much 
deference.’” App. a t 21a (quoting Boerne, 521 U.S. at 
535) (ellipses in original). This is uniquely the case 
when Congress legislates with respect to racial 
discrimination in voting. As the Court explained in 
Nw. Austin, “the Fifteenth Amendment empowers 
Congress,’ not the Court, to determ ine in the first 
instance w hat legislation is needed to enforce it.” 
557 U.S. a t 205.

This Court’s '‘Boerne line of decisions” 
repeatedly has identified the Voting Rights Act as a 
model of congruence and proportionality, and

4



consistently has cited with approval to this Court’s 
decisions upholding the constitutionality of Section 5. 
See, e.g., Boerne, 521 U.S. a t 531-33 (contrasting 
Section 5 favorably to the "Religious Freedom and 
Restoration Act, and noting tha t “(jjudicial deference, 
in most cases, is based not on the state  of the 
legislative record Congress compiles but ‘on due 
regard for the decision of the body constitutionally 
appointed to decide’”) (quoting Oregon v. Mitchell, 
400 U.S. 112, 207 (1970) (op. of H arlan, J.)); Bd. of 
Trustees o f Uniu. o f Ala. v. Garrett, 531 U.S. 356, 373 
(2001) (comparing Section 5 favorably to Title I of the 
Americans W ith Disabilities Act, and observing th a t 
Section 5 “was ‘appropriate’ legislation to enforce the 
Fifteenth Am endm ent’s protection against racial 
discrimination in voting.”) (citing Katenzbach, 383 
U.S. a t 308); Neu. Dep’t. o f Human Res., v. Hibbs, 538 
U.S. 721, 736 (2003) (observing that, when Congress 
enacts legislation designed to combat forms of 
discrimination th a t trigger a heightened level of 
scrutiny, such as gender- or race-based 
discrimination, it is “easier for Congress to show a 
pattern  of sta te  constitutional violations” to justify 
remedial legislation) (citing, inter alia, Katzenbach, 
383 U.S. at 308-313); Tennessee v. Lane, 541 U.S. 
509, 520, n.4 (2004) (describing cases upholding 
various provisions of the Voting Rights Act). All of 
these decisions suggest th a t some degree of judicial 
deference is appropriate where, as here, Congress 
enacts legislation designed to protect the express 
Constitutional prohibition on racial discrimination in 
voting.

5



II.

I
K
I
I
f t

I

The Court o f A ppeals and D istr ict Court 
D irectly  A nsw ered the Q uestions Set 
Forth in Nw. A u s t in

Both the Court of Appeals and the District 
Court directly and explicitly employed the analytic 
framework set forth by this Court in Nw. Austin, 
centering their reviews on the “two principal 
inquiries”: whether the ‘“current burdens’” imposed 
by Section 5 “are ‘justified by current needs,’” and 
w hether Section 5’s “‘disparate geographic coverage 
is sufficiently related to the problem it targets.’” App. 
a t 14a-15a (quoting Nw. Austin, 557 U.S. a t 203); 
App. at 114a, 280a (same).

1. This Court recognized in Nu>. Austin  
th a t Congress amassed a sizable record in support of 
its decision to extend the preclearance requirem ents, 
a record the [Nw. Austin] District Court determined 
‘docum ented] contemporary racial discrimination in 
covered states.’” 557 U.S. at 205. The Court of 
Appeals independently “thoroughly scru tin ize^] the 
record and found th a t ‘overt racial discrimination 
persists in covered jurisdictions.” App. a t 48a. The 
District Court s own assessm ent of all the evidence 
in the legislative record” similarly concluded tha t 
[a] 1 though some scholars voiced concern during the 

2006 reauthorization hearings th a t ‘the Act has been 
so effective it will be hard to produce enough 
evidence of intentional discrimination by the states so 
as to justify the extraordinary preclearance remedy 
for another 25 years’ . . . Congress succeeded in doing 
ju s t th a t.” App. at 196a-97a (internal citations 
omitted) (emphasis in original).

The record before Congress included: (1) 626 
DOJ objections from 1982 to 2004 to-voting changes

6



th a t would have the purpose or effect of 
discrim inating against minorities; (2) “more 
information requests” from DOJ regarding Section 5 
submissions which resulted in the w ithdraw al or 
modification of over 800 potentially discrim inatory 
voting changes; (3) 653 successful law suits under 
Section 2 of the Voting Rights Act, 42 U.S.C. § 1973, 
between 1982 and 2005 providing relief from 
discriminatory practices in a t least 825 covered 
counties; (4) tens of thousands of federal observers 
dispatched to monitor elections in covered 
jurisdictions; (5) 105 successful Section 5
enforcement actions brought against covered 
jurisdictions between 1982 and 2004; (6) 25
preclearance denials by the District Court for the 
District of Columbia between 1982 and 2004; (7) 
examples of “overt hostility to black voting power by 
those who control the electoral process”; (8) evidence 
th a t Section 5 has a strong deterren t effect; and (9) 
th a t Section 2 is not an adequate remedy for racial 
discrimination in voting in the covered jurisdictions. 
App. at 24a, 29a-46a.4

4 For example, the S ta te  of A labam a’s record since the 
extension of Section 5 in 1982 showed th a t the  Attorney 
General objected to 46 Section 5 subm issions from Alabama, 
including seven from the sta te  itself and 39 from local 
jurisdictions. Renewing the Tem porary Provisions of the Voting 
Rights Act: Legislative Options After LULAC v. Perry: Hearing 
Before the Subcomm. on the Constitution, Civil Rights and 
Property Rights of the S. Comm, on the Judiciary , 109th Cong. 
371 (2006) (“Legislative Options Senate  H earing”);
U nderstanding the Benefits and Costs of Section 5 Pre- 
Clearance: H earing Before the S. Comm, on the Judiciary, 
109th Cong. 90 (2006). M any of the objections were based upon 
evidence of purposeful discrim ination. 1 Voting Rights Act: 
Section 5 of the Act -  H istory, Scope, and Purpose: Hearing

7



W ithin th a t record the Court of Appeals noted 
“numerous examples of modern instances of racial 
discrimination in voting” relied upon by Congress in 
amending and extending the Act in 2006. Id. a t 29a 
(internal quotation marks omitted). In addition to 
these “flagrant” examples, the Court of Appeals 
reviewed “several categories of evidence in the record 
[that] support Congress’s conclusion th a t intentional 
racial discrimination in voting rem ains so serious 
and widespread in covered jurisdictions th a t section 
5 preclearance is still needed.” Id. a t 31a. The 
District Court similarly concluded after reviewing 
the record of Section 5 objections th a t the “House 
Committee on the Judiciary had good reason to 
conclude in 2006 th a t Section 5 was still fulfilling its 
intended function of preventing covered jurisdictions 
from im plem enting voting changes ‘intentionally 
developed to keep minority voters and candidates 
from succeeding in the political process.’” App. at 
220a (quoting H.R. Rep. No. 109-478, a t 36 (2006)).

The substantial evidence of intentional racial 
discrimination in the record is particularly 
significant. Between 1980 and 2004, the Attorney 
General issued a t least 423 objections based in whole

Before the Subcomm. on the Constitution, of the H. Comm, on 
the Judiciary, 109t,h Cong. 264, 267, 275, 321, 350, 415, 435 
(2005); Legislative Options Senate H earing, a t 383-84. And on 
A ugust 25, 2008, the Attorney General objected to annexations 
and a redistricting plan for the City of Calera in Shelby County, 
Alabama, because the city failed to show the absence of a 
discrim inatory purpose or effect. Section 5 Objection Letter, 
from Grace C hung Becker, Acting A ssistan t Attorney General, 
to Dan Head, Esq., August 25, 2008. Available a t
http://www.justice.gov/crt/about/vot/sec_5/pdfs/l_082508.pdf 
(last visited Sep. 20, 2012).

8

http://www.justice.gov/crt/about/vot/sec_5/pdfs/l_082508.pdf


or in part on discrim inatory purpose. App. a t 33a. 
As recently as the 1990s, 43 percent of all objections 
were based on in ten t alone, while another 31 percent 
were based on a combination of in ten t and effect. 
Nw. Austin  Mun. Util. Dist. No. One u. Mukasey, 573 
F.Supp.2d 221, 252 (D, D.C. 2008). Congress found 
th a t “such objections did not encompass minor 
inadvertent changes. The changes sought by covered 
jurisdictions were calculated decisions to keep 
minority voters from fully participating in the 
political process.” H.R. Rep. No. 109-478, a t 21.

Shelby County argues th a t Section 5 is no 
longer needed because there has been an increase in 
the num ber of minority elected officials and because 
(according to the County) minority voter registration 
and turnout are approaching parity with the white 
population. Petition at 27. These gains are 
im portant, but they are the very things th a t will be 
a t risk if the Section 5 remedy is ended prem aturely. 
H.R. Rep. No. 109-478, a t 56. Furtherm ore, as the 
courts below noted, these gams have not been 
uniform, nor have they been independent of Section 5 
and other federal remedies.

Congress found th a t gains by minority 
candidates rem ain uneven, both geographically and 
by level of office. H.R. Rep. No. 109-478, a t 33-34. 
The Court of Appeals noted the congressional 
findings tha t no African American candidates had 
been elected to statewide office in Mississippi, 
Louisiana or South Carolina. App. a t 23a; see also 
App. at 204a-205a. The District Court similarly 
noted the extent to which the election of African- 
American and Latino candidates lagged their 
respective shares of the voting age population in the

9



covered states. App. a t 204a-205a. The House 
committee report noted th a t African Americans 
accounted for only 21 percent of state  legislators in 
six southern states where the black population 
averaged 35 percent -  Alabama, Georgia, Louisiana, 
Mississippi, South Carolina, and North Carolina. 
H.R. Rep. No. 109-478, at 33. The House committee 
report fu rther found th a t the num ber of Latinos and 
Asian Americans elected to office nationwide “has 
failed to keep pace with [the] population growth” of 
those two communities. Id.

Moreover, minority electoral success largely 
has been a function of the creation of majority- 
minority election districts. For example, Congress 
found tha t as of 2000, only 8 percent of African 
American Congressmen were elected from majority- 
white districts, and th a t no Native Americans or 
Hispanics have been elected to office from a majority 
white [Congressional] district.”5 H.R. Rep. No. 109-

5 Alabama well illu strates th is pattern . As of 2005 no African 
Americans held statew ide office in Alabama. Two incum bent 
Afiican American sta te  Suprem e Court justices, who initially 
had been appointed, were defeated by white opponents in 2000. 
Every African American member of the Alabama Legislature 
was elected from a single member district with an effective 
black voter majority. 2 Voting Rights Act: Section 5 of the Act -  
Histoiy, Scope, and Purpose: Hearing Before the Subcomm. on 
the Constitution, of the H. Comm, on the Judiciary, 109th Cong, 
a t 3199 (2005) (statem ent of Jam es U. Blacksher). See also 
Blacksher, et al., Voting Rights In Alabama: 1982-2006, 17 SO. 
CAL. REV. L. & SOC. JUST. 249, 249 (2008) (“voting rem ains 
largely racially polarized, and black candidates rarely are 
elected in m ajority-white d istricts”). And most of the majority 
black districts had to be ordered by federal courts. Id. a t 260 et 
seq.

10



478, at 34, citing Protecting M inority Voters: The 
Voting Rights Act at Work 1982-2005, The National 
Commission on the Voting Rights Act, February 
2006, a t 38, 43-46.

With respect to voter registration and turnout, 
the Court of Appeals noted the congressional findings 
showing “continued registration and turnout 
disparities’ in South Carolina, and in particular in 
Virginia. App. a t 23a. The District Court found th a t 
the disparities in voter registration and turnout were 
“comparable to the disparity the City o f Rome Court 
called ‘significant.’” App. a t 202a-203a (citations 
omitted). The District Court fu rther noted th a t 
disparities affecting Hispanic voter registration were 
more severe” than  Congress had credited due to the 

double-counting of white Hispanics. Id. a t 202-203a.

In sum, the Court of Appeals concluded that: 
“After thoroughly scrutinizing the record and given 
tha t overt racial discrimination persists in covered 
jurisdictions notw ithstanding decades of section 5 
preclearance, we, like the district court, are satisfied 
th a t Congress’s judgm ent deserves judicial 
deference. App. a t 48a. The District Court 
concluded th a t “Congress satisfied its burden in 2006 
of identifying a continuing ‘history and pattern  of 
unconstitutional . . . discrimination by the S tates’ .
. which was sufficient to justify the reauthorization of 
Section 5 as remedial, prophylactic enforcement 
legislation.” App. a t 270a, (quoting Garrett, 531 U.S. 
a t 368). The D istrict Court fu rther noted th a t “the 
evidence of unconstitutional voting discrimination in 
the 2006 legislative record far exceeds the evidence of 
unconstitutional discrimination found sufficient to 
uphold the challenged legislation in Hibbs and Lane.”

1 1



Id. a t 260a. See also 120 Stat. 577, sec. 2(b) 
(Congress’ summary of the findings and evidence 
upon which it relied in extending and amending the 
preclearance requirement). These conclusions were 
entirely in keeping w ith City of Rome, where this 
Court upheld the 1975 reauthorization of Section 5 
based upon largely the same categories of evidence.6

2. With respect to the Section 4(b) 
coverage provisions, the Court of Appeals and 
District Court correctly found th a t voting 
discrimination rem ains concentrated in the Section 5 
covered jurisdictions, based upon an intensive review 
of the legislative record.

Shelby County’s argum ent th a t the Section 2 
data relied upon by Congress “fails to show a 
meaningful difference between covered and 
noncovered jurisdictions,” Petition a t 32-33, is 
contradicted by the Court of Appeals’ findings. The 
“most concrete evidence comparing covered and 
noncovered jurisdictions,” App. a t 49a, came from 
studies of vote dilution litigation brought under 
Section 2 of the Voting Rights Act, including a study 
of published Section 2 decisions entered into the

fi The House committee report concluded th a t during the 1982- 
2006 period, “voting changes devised by covered jurisdictions 
resem ble those techniques and methods used in 1965, 1970, 
1975, and 1982 including: enacting discrim inatory redistricting 
plans; switching offices from elected to appointed positions; 
relocating polling places; enacting discrim inatory annexations 
and deannexations; setting  numbered posts; and changing 
elections from single m em ber districts to a t large voting and 
im plem enting majority vote requirem ents.” H.R. Rep. No. 109- 
478, a t 36.

12



legislative record (the “Katz study”). These data 
showed a significant difference between covered and 
non-covered jurisdictions. Among the 114 published 
decisions resulting in outcomes favorable to minority 
plaintiffs, 64 originated in covered jurisdictions, 
while only 50 originated in non-covered jurisdictions. 
Id. Thus, while the covered jurisdictions contain less 
than  25 percent of the country’s population, they 
accounted for 56 percent of successful reported 
Section 2 litigation since 1982. Id. The pattern  
shown in the published decisions was corroborated by 
a sum m ary of unpublished Section 2 decisions 
predating the 2006 reauthorization, which showed 
“even more pronounced” differences between the 
covered and non-covered jurisdictions. Id. a t 51a- 
52a7 Moreover, because Section 5 “deters or blocks 
many discriminatory voting laws before they can 
ever take effect and become the target of section 2 
litigation,” the Court of Appeals observed th a t “if 
discrimination was evenly distributed throughout the 
nation, we would expect to see fewer successful

7 Since 1982, there have been a t least 686 unpublished 
successful Section 2 cases, am ounting to a total of some 800 
published and unpublished cases w ith favorable outcomes for 
minority voters. Of these, approxim ately 81 percent were 
brought against Section 5 covered jurisdictions. App. 51a. Of 
the eight sta tes with the h ighest num ber of successful Section 2 
cases per million residents, all but one was covered in whole or 
m part. The only exception was A rkansas. While it was not 
covered by Section 4(b), in 1990 A rkansas was bailed-in to 
Section 5 coverage by a court order. See Jeffers v. C linton , 740 
F.Supp. 585, 601-02 (E.D. Ark. 1990). Congress concluded th a t 
the need for Section 5 was evident from “the continued filing of 
section 2 cases th a t originated in covered jurisd ictions,” many of 
which resulted in findings of in tentional discrim ination 120 
S tat. 577, sec. 2(b)(4)&(5).

13



section 2 cases in covered jurisdictions than in non- 
covered jurisdictions. . . .  Yet we see substantially 
more.” Id. a t 55a.8

The D istrict Court likewise examined the 
pattern  of reported Section 2 decisions and found 
th a t the fact th a t more than  56% of the successful 
Section 2 suits since 1982 have been filed in covered 
jurisdictions -- even though those jurisdictions 
contain only ,19.2% of the country's African-American 
population, 31.8% of the Latino population, 25% of 
the Native American population, and less than 25% 
of the overall population -  suggests th a t 
unconstitutional discrimination rem ains more 
prevalent in covered than  in non-covered 
jurisdictions.” App. at 288a. The District Court 
further noted th a t “the disproportionate number of 
successful Section 2 suits in covered jurisdictions is 
all the more rem arkable considering th a t Section 5 
blocks and deters discrimination in covered 
jurisdictions, and, consequently, one would expect to 
see fewer Section 2 cases there.” Id. (internal 
quotation m arks omitted).

In A labam a alone, during this period there were 12 
successful reported Section 2 cases and a total of 192 successful 
Section 2 cases, reported  and unreported. 1 Voting Rights Act: 
Evidence of Continued Need: Hearing Before the Subcomm. on 
the Constitution, of the  H. Comm, on the Judiciary, 109th Cong, 
a t 251 tbl. 5 (2006). As fu rther appears from the legislative 
history, decisions since 1982 have found num erous and ongoing 
examples of in tentional discrim ination in A labam a a t the sta te  
and local levels. Senate  Hearing, Legislative Options Senate 
Hearing, a t 372.

14



The Court of Appeals emphasized that, in 
examining Section 5’s geographic coverage, the entire 
coverage scheme m ust be considered, which includes 
not only the Section 4(b) coverage formula, but also 
the bailout provisions of Section 4 and the bail-in 
provisions of Section 3, 42 U.S.C. § 1973a. “[W]e
look not ju st a t the section 4(b) formula, but a t the 
sta tu te  as a whole, including its provisions for bail-in 
and bailout.” App. a t 61a. The bailout and bail-in 
provisions of Section 5 address the theoretical 
possibilities of over and under inclusiveness and help 
“ensure Congress’ means are proportionate to [its] 
ends.”9 Boerne, 521 U.S. a t 533. Bailout plays an 
“im portant role in ensuring th a t section 5 covers only 
those jurisdictions with the worst records of racial 
discrimination in voting,” App. a t 62a, by providing 
those jurisdictions with “a clean record on voting 
rights” the means for term inating coverage. Id. a t 
63a. Thus, bailout “helps ‘ensure Congress’ means 
are proportionate to [its] ends,”’ id. a t 62a (quoting 
Boerne, 521 U.S. at 533), and “th a t section 5 is

9 In 1982, Congress a ltered  the bailout form ula so th a t 
jurisdictions down to the county level could bail out 
independently. One of the main purposes of the new bailout 
provision was to provide local jurisdictions w ith an incentive to 
change their voting practices by elim inating stru c tu ra l and 
other harriers to m inority political participation. To be eligible 
for bailout, a jurisdiction m ust show th a t it has not used a 
discrim inatory test or device w ithin the preceding ten years, 
has fully complied with the Voting Rights Act, and has engaged 
in constructive efforts to facilitate equal access to the electoral 
process. 42 U.S.C. § 1973b(a); S. Rep. No. 417, at 43-62 (1982). 
Nw. A ustin  fu rther liberalized bailout by holding th a t “all 
political subdivisions,” and not only those th a t conduct voter 
registration, are en titled  to seek exemption from Section 5. Nw. 
A ustin , 557 U.S. a t  211.

15



‘sufficiently related to the problem it targets,’” id. a t 
64a (quoting Nw. Austin, 557 U.S. a t 203).10 11 Bail-in 
under Section 3(c) continues to address the 
theoretical underinclusiveness of the coverage 
formula. App. a t 65a.11

Although Judge Williams’ dissent differed 
with the m ajority’s conclusions concerning the 
Section 4(b) coverage provisions, he did not dispute 
th a t successful reported Section 2 cases were 
disproportionately concentrated in the covered 
jurisdictions, which was the principal factor upon 
which the majority relied. Instead, Judge W illiams’ 
dissent would have placed greater emphasis on a 
state-by-state comparison, and would not have 
credited other evidence th a t the majority found 
corroborated the Katz study. The Katz study showed 
a clear disproportion of successful, reported Section 2 
decisions in the covered jurisdictions as a whole, 
whereas Judge W illiams’ dissent broke the data into 
state-by-state figures; even those disaggregated data,

10 As of May 9, 2012, as a result of the liberalized bailout 
system, 136 jurisdictions had bailed out after dem onstrating  
th a t they no longer discrim inated in voting. App. 62a. The 
jurisdictions included 30 counties, 79 towns and cities, 21 school 
boards, and six u tility  or sanitary  districts. In addition, the 
Attorney G eneral is actively considering more than  100 
additional jurisdictions for bailout. Id. a t App. 61a-63a.

11 P ursuan t to 42 U.S.C. § 1973a(c), a court th a t has found a 
violation of the Fourteenth  or Fifteenth Am endm ent may retain  
jurisdiction for an  appropriate period of tim e and subject a 
jurisdiction to the preclearance requirem ents of Section 5. Two 
non-covered sta tes, A rkansas and New Mexico, were subjected 
to partial preclearance under the bail-in provision, as well as 
jurisdictions in California, Florida, N ebraska, New Mexico, 
South Dakota, and  the  city of Chattanooga. App. 61a-62a.

16



however, showed th a t four of the five top states 
(using his methodology) are covered by Section 5. 
App. a t 91a-92a.

Judge W illiams’ dissent would not have 
credited, on the “covered jurisdictions” side of the 
discrimination ledger, the 626 objections interposed 
by the A ttorney General from 1982 to 2006, as well 
as other evidence of ongoing discrimination in the 
covered s ta tes  identified by Congress. Judge 
W illiams’ conclusion th a t Section 5 objections do not 
represent probative evidence of discriminatory 
conduct, id. a t 94a, is inconsistent with this Court’s 
holding in Rome, where the Court upheld the 1975 
reauthorization of Section 5 specifically by crediting 
Congress’ conclusion th a t the Attorney General’s 
objections do constitute significant evidence of 
ongoing discrim ination. 446 U.S. a t 181 (“’The recent 
objections entered by the Attorney General . . .  to 
Section 5 submissions clearly bespeak the continuing 
need for this preclearance m echanism .’”) (ellipses in 
original).12 Furtherm ore, while Judge Williams 
declined to consider the substan tia l information 
relating to unpublished Section 2 decisions, his 
dissent fails to show th a t the majority erred by 
treating  this evidence as corroborating the Katz 
study, while still “approach [ing] this data with 
caution.”13 App. a t 54a.

12 For example, Judge W illiams’ analysis ranks Georgia as the 
21st sta te  in Section 2 cases, however, as the majority discussed, 
there is a w ealth  of other inform ation showing th a t voting 
discrim ination rem ains a substantial problem in th a t state. 
App. a t 58a-59a.

13 Shelby County’s com plaint about post-enactm ent evidence 
concerns the M cCrary declaration subm itted  by the United

17



3. The decision of the Court of Appeals was 
entirely consistent with other decisions by this Court, 
and Shelby County’s claim that the “decision below 
cannot be squared w ith any of the Court’s decisions,” 
Petition a t 29, is patently  incorrect. While Shelby 
County acknowledges th a t this Court “has twice 
upheld” the constitutionality of Section 5 in South 
Carolina u. Katzenbach, supra, and City o f Rome u. 
United States, supra, Petition at 3, its  Petition fails 
to cite either Lopez u. Monterey County, 525 U.S. 266, 
282 (1999), which upheld the constitutionality of 
Section 5 as reauthorized in 1982,14 or Georgia v. 
United States, 411 U.S. 526, 535 (1973), in which this 
Court upheld the constitutionality of Section 5 as 
reauthorized in 1970 ( “for the reasons stated at 
length in South Carolina v. Katzenbach . . .  we 
reaffirm that the Act is a permissible exercise of 
congressional power under § 2 of the Fifteenth 
Amendment.”).

States, which corroborated the evidence from the Katz study of 
published Section 2 decisions, by compiling data  — largely in the 
reauthorization congressional record, App. a t 54a [679 F3d a t 
878] -  which addressed unpublished Section 2 decisions. It 
follows, therefore, th a t this evidence is not post-enactm ent 
evidence as such, since it dealt with litigation tha t both 
occurred belore the 2006 reauthorization and generally was 
before Congress. Accordingly, the limited sense in th is  evidence 
m ight be labeled as “post-enactm ent” provides no basis upon 
which to exclude it.

In Lopez th is Court rejected a claim by the S tate of 
California th a t Ҥ 5 could not w ithstand constitutional scrutiny 
if it were interpreted  to apply to voting m easures enacted by 
S tates th a t have not been designated as historical wrongdoers 
in the voting rights sphere.” Id.

18



Lopez in particular undercuts Shelby County’s 
attem pts to lim it the scope of Section 5 to intentional 
discrimination, reaffirm ing the holding in City of 
Rome th a t [legislation which deters or remedies 
constitutional violations can fall w ithin the sweep of 
Congress’ enforcement power even if in the process it 
prohibits conduct which is not itself unconstitutional 
and intrudes into legislative spheres of autonomy 
previously reserved to the S tates.” 525 U.S. a t 282- 
83. The Court, reaffirm ing its ruling in Katzenbach, 
further held once a jurisdiction has been designated, 
the Act may guard against both discriminatory 
anim us and the potentially harm ful effect of neutral 
laws in' th a t jurisdiction.” Id. a t 283. Cf. Kimel v. 
Fla. Bd. o f Regents, 528 U.S. 62, 81 (2000) 
(“Congress’ power ‘to enforce’ the [Fourteenth] 
Amendment includes the authority  both to remedy 
and to deter violation of rights guaranteed 
thereunder by prohibiting a som ewhat broader swath 
of conduct, including th a t which is not itself 
forbidden by the Amendm ent’s text.”).

In addition, one month before the extension of 
Section 5 in 2006, this Court decided LULAC u. 
Perry, 548 U.S. 399 (2006) (finding th a t a Texas 
congressional redistricting plan violated Section 2 of 
the Voting Rights Act), in which all eight justices 
who addressed the issue agreed th a t states have a 
“compelling sta te  in terest” in complying w ith the 
Section 5 preclearance requirem ent. Id. a t 475 n 12 
485 n.2, 518.

4. Shelby County contends th a t “Section 2 is 
now the ‘appropriate’ prophylactic remedy for any 
pattern  of discrimination documented by Congress in 
2006.” Petition a t 29. But as Congress concluded in

19



extending Section 5 in 2006, the “failure to 
reauthorize the temporary provisions, given the 
record established, would leave minority citizens 
with the inadequate remedy of a Section 2 action.” 
H R. Rep. No. 109-478, a t 57. This conclusion was 
entirely consistent with this Court’s prior decisions,15 
and was based upon extensive contemporary 
evidence th a t reliance upon Section 2 litigation 
would place the burden of proof on the victims of 
discrimination ra ther than  its perpetrators and 
impose a heavy financial burden on minority 
plaintiffs, and th a t Section 2 litigation is heavily 
work-intensive, cannot prevent enactm ent of 
discriminatory voting measures, and allows 
discriminatorily-elected officials to rem ain in office

15 In Katzenbach, the Court stressed th a t “Congress had found 
th a t case-by-case litigation was inadequate to combat 
widespread and persisten t discrim ination in  voting, because of 
the inordinate am ount of time and energy required to overcome 
the obstructionist tactics invariably encountered in these 
lawsuits. 383 U.S. a t 328; see also id. a t 313-15 (explaining 
why case-by-case litigation had “proved ineffective”). City of 
Rome also found that: “Case-by-case adjudication had proved 
too ponderous a m ethod to remedy voting discrim ination.” 446 
U.S. a t 174. Accord, Roerne, 521 U.S. a t 526 (Section 5 was 
“deemed necessary given the ineffectiveness' of the existing 
voting rights laws, and the slow, costly character of case-by-case 
litigation”); Georgia v. United States, 411 U.S. a t 538 n.9 (“[t]he 
very effect of § 5 was to shift the burden of proof with respect to 
racial discrim ination in voting”). The C ourt relied on sim ilar 
findings in Tennessee v. Lane, 541 U.S. a t 511, to sustain  the 
constitutionality of a challenged sta tu te : “Faced with
considerable evidence of the shortcomings of previous legislative 
responses, Congress was justified in concluding tha t this 
difficult and in tractab le  proble[m]’ w arranted  ‘added 
prophylactic m easures in response’” (alteration  in original) 
(quoting Hibbs, 538 U.S. a t 737).

20



for years until litigation is concluded. App. a t 45a- 
46a. See, e.g., 1 Voting Rights Act: Section 5 of the 
Act -  History, Scope, and Purpose: H earing Before 
the Subcomm. on the Constitution, of the H. Comm, 
on the Judiciary, 109th Cong. 92, 97, 101 (2005) 
(testimony of Nina Perales); id. a t 79, 83-84
(testimony of A nita Earls); 1 Voting Rights Act: 
Evidence of Continued Need: Hearing Before the 
Subcomm. on the Constitution, of the H. Comm, on 
the Judiciary, 109th Cong. 97 (2006) (testimony of 
Joe Rogers). A Federal Judicial Center study, for 
example, found th a t voting cases required nearly four 
times more work than  the average district court case 
and ranked as the fifth most work-intensive of the 63 
types of cases analyzed. App. at 45a.

III. The Court o f A ppeals C orrectly R ejected
Shelby C ounty’s A ttem pts to A rbitrarily
D efine A w ay R elevant E vidence
The Court of Appeals considered and correctly 

rejected Shelby County’s efforts to exclude evidence 
plainly relevant to Nw. A ustin’s “two principal 
inquiries.” The County’s argum ents in this regard 
are inconsistent with the Supreme Court’s directives 
in Nw. Austin, and are contrary to the Supreme 
Court’s holding in Katzenbach that, “[i]n identifying 
past evils, Congress obviously may avail itself of 
information from any probative source.” 383 U S at 
330.

1. With respect to identifying the “current 
needs” for the Section 5 remedy, Shelby County 
sought to prevent a genuine review of the current 
record by insisting th a t only “evidence . . .  of the sort 
present at the tim e of Katzenbach,” App. a t 25a, is

2 1



relevant, and by “urg[ing the D.C. Circuit to 
disregard much of the evidence Congress considered,” 
id. at 26a, which showed th a t covered jurisdictions 
have engaged in repeated acts of intentional vote 
dilution.

The Court of Appeals correctly rejected Shelby 
County’s argum ent that, in 2006, the court (and thus 
Congress) could only take into account the most 
prevalent form of discrimination th a t existed in 1965, 
i.e., interference with the right to register and cast 
ballots. To accept this argum ent necessarily would 
turn  the “current needs” inquiry on its head by 
arbitrarily excluding from consideration other 
current forms of voting discrimination. Indeed, the 
circa-1965 discrimination affecting voter registration 
and ballot access largely has been outlawed by the 
Voting Rights Act, which prohibits use of the 
discriminatory tests and devices th a t many covered 
jurisdictions relied upon prior to the Act’s adoption. 
42 U.S.C. § 1973aa. Shelby County thus seeks to 
cloak its desired foreordained conclusion in the garb 
of a decision rule. Shelby County’s related argum ent 
— that only evidence of widespread “gam esm anship” 
(i.e., the evasion of judicial injunctions by the 
adoption of new discriminatory provisions) can 
justify reauthorization of Section 5 -  is no less 
tendentious, as it would require evidence of conduct 
tha t “section 5 preclearance makes . . . virtually 
impossible.” App. a t 25a.

Similarly, Shelby County demanded th a t the 
Court of Appeals ignore repeated instances of 
intentional and unconstitutional minority vote 
dilution because, according to the County, such 
discrimination is prohibited only by the Fourteenth

22



Amendment, and Section 5 is solely a Fifteenth 
Amendment remedy. However, “Congress expressly 
invoked its au thority  under both the Fourteenth and 
Fifteenth Am endm ents” in-reauthorizing Section 5, 
which was well within its province to do when 
confronted w ith a record of unconstitutional schemes 
to dilute m inority voting strength. Id. a t 27a. 
Shelby County’s argum ent to the contrary is squarely 
contradicted by this Court’s ruling in City o f Rome, 
which sustained the 1975 reauthorization of Section 
5 based on Congress’ finding th a t “’[a]s registration 
and voting of minority citizens increaseQ, other 
m easures may he resorted to which would dilute 
increasing m inority voting strength .’” Id. a t 28a 
(quoting Rome, 446 U.S. at 181). As this Court 
explained in its very first decision construing Section 
5, Allen v. State Bd. of Elections, 393 U.S. 544, 569 
(1969), “[tjhe right to vote can be affected by a 
dilution of voting power as well as by an absolute 
prohibition on casting a ballot.” This Court has never 
held that, in reauthorizing Section 5, Congress may 
not rely on evidence of unconstitutional schemes to 
dilute minority voting power;, nor has this Court 
held th a t vote dilution is not a type of voting 
discrimination addressed by Section 5. See also 
Georgia v. United States, 411 U.S. a t 534 
(redistricting plans “have the potential for diluting 
the value of the Negro vote and are within the 
definitional term s of § 5”).

Shelby County further argues th a t Congress’ 
findings concerning the deterrent effect of Section 5 
m ust be disregarded, At the outset, it would seem 
nonsensical to ignore evidence th a t remedial 
legislation has operated to deter unconstitutional 
conduct in considering whether th a t legislation was

23



properly reauthorized, and, indeed, Shelby County 
does not appear to go th a t far. Instead, Shelby 
County repeats Judge W illiams’ dissenting view th a t 
Section 5’s deterrent effect is speculative and cannot 
serve as a perpetual justification. Petition at 27-28. 
However, Congress cited specific evidence supporting 
its conclusion as to Section 5’s im portant deterrent 
effect. App. 42-43aa, 55a. Congress described 
preclearance as a “vital prophylactic tool,” and tha t 
“the existence of Section 5 deterred covered 
jurisdictions from even attem pting to enact 
discrim inatory voting changes.” H.R. Rep. No. 109- 
478, a t 21. Congress found th a t “[a]s im portant as 
the number of objections th a t have been interposed 
to protect minority voters against discriminatory 
changes is the num ber of voting changes th a t have 
never gone forward as a result of Section 5.” Id. at 
24. Congress concluded based on the abundant 
evidence before it th a t Section 5 had a deterrent 
effect, a finding the Court of Appeals declined to 
“second guess.” App. a t 44a.16 Cf. Northwest Austin, 
557 U.S. a t 205 (noting tha t the District Court in 
th a t case also found th a t “the record ‘demonstratjed] 
th a t section 5 prevents discriminatory voting 
changes’ by ‘quietly but effectively deterring 
discriminatory changes.’”). Moreover, Section 5’s

16 See Eldred v. Ashcroft, 537 U.S. 186, 208 (2003) (courts “are 
not a t liberty to second-guess congressional determ inations and 
policy judgm ents”); Turner Broadcasting System, Inc. u. F.C.C., 
520 U.S. 180, 195 (1997) (“courts m ust accord substantial 
deference to the predictive judgm ents of Congress”); United 
States Dept, of Labor v. Triplett, 494 U.S. 715, 721 (1990) 
(noting “the heavy presum ption of constitutionality to which a 
carefully considered decision of a coequal and representative 
branch of Governm ent’ is en titled”).

24



deterrent effect was just one of m any categories of 
evidence th a t Congress relied upon, so this in no 
sense resembles the “worst case” situation — where 
deterrence is claimed as the sole reason for 
reauthorizing Section 5 -  about which Judge 
Williams’ dissent expressed concern.

2 . The Court of Appeals also correctly 
rejected Shelby County’s efforts to exclude evidence 
relevant to determ ining w hether Section 5’s 
geographic coverage rem ains sufficiently well 
targeted.

Shelby County complains th a t the coverage 
formula “rel[ies] on ‘decades-old data.” App. a t 56a. 
But as the Court of Appeals observed, the issue 
presented is not whether the initial coverage 
determ inations were correct; instead, “[t]he question 
[is] whether [the coverage formula], together with 
bail-in and bailout, continues to identify [for 
coverage] the jurisdictions with the worst problems,” 
id. a t 57a, which necessarily involves a review of 
current data. As discussed above, a review of the 
current data dem onstrates the continued fit between 
Section 5 coverage and contem porary voting 
discrimination in the United States.

The Court of Appeals also correctly rejected 
Shelby County’s argum ent th a t evidence of vote 
dilution is irrelevant to the geographic coverage 
question. Shelby County contends th a t there is a 
statutory bar to considering evidence of vote dilution 
in evaluating the s ta tu te ’s geographic coverage 
because the Section 4(b) coverage formula relies on 
factors related to ballot access. But, as the Court of 
Appeals explained, this contention “rests on a 
m isunderstanding of the coverage form ula.” Id. a t

25



56a. Congress relied on ballot access factors to make 
the initial coverage determ inations not because th a t 
was “all it sought to target, but because [these 
factors] served as accurate proxies for pernicious 
racial discrimination in voting.” Id. a t 57a.

IV. Post-E n actm en t E vidence C orroborates
the Court o f A ppeals
This Court is not foreclosed from considering 

post-enactm ent evidence th a t bears directly upon the 
constitutionality of congressional legislation. The 
Court of Appeals appropriately recognized th a t a 
court may consider relevant and probative “post­
enactm ent evidence.” App. a t 54a (citing Tennessee 
v. Lane, 541 U .S.at 524-25 nn. 6-9 & 13).

Shelby County appears to be of two minds on 
this issue. On one hand, it asserts th a t its challenge 
“is based on the 2006 legislative record and no other 
evidence is constitutionally cognizable.” Petition at 
22. On the other hand, the County repeatedly relies 
in its Petition upon post-enactm ent evidence, 
referring to Section 5 objections and litigation 
regarding photo identification requirem ents in South 
Carolina and Texas, and litigation regarding changes 
to Florida’s early voting law; the County claims tha t 
this post-enactm ent evidence shows improper 
enforcement of Section 5 by the Attorney G eneral.17

1' Shelby County also faults Congress for not conducting 
hearings or proposing bills following the decision in Nw. 
Austin. Petition a t 21. But Congress conducted extensive 
hearings in 2005 and 2006 to consider the need for continuation 
of Section 5. I t  held 21 hearings, heard from more than 90 
witnesses, and compiled a massive record of more than  15,000 
pages of evidence, including testim ony on the burdens of 
Section 5. See H R. Rep. No. 109-478, a t 5 (2006); S. Rep. No.

26



Since Shelby County filed its Petition, however, the 
D istrict Court for the District of Columbia has issued 
rulings in the Texas and Florida cases, as well as in 
another Section 5 declaratory judgm ent action 
brought by Texas, th a t put Shelby County’s 
argum ents in a ra ther different light.

Shelby County claims th a t Florida was “forced 
into preclearance litigation” to prove th a t reducing 
early voting is not discriminatory, when other states 
“have no early voting a t all.” Petition a t 20. On 
August 16, 2012, however, the three-judge court in 
Florida v. United States denied Section 5 
preclearance to Florida’s early voting changes, 
finding th a t they would likely result in retrogression 
w ithin Florida’s five covered counties. Florida v. 
United States, no. 1:1 l-cv-01428, 2012 U.S. Dist. 
LEXIS 115647 (D.D.C. August 16, 2012). Contrary 
to Shelby County’s claim that the D epartm ent of 
Justice somehow forced Florida to file suit, the State 
in fact withdrew its early voting changes from 
adm inistrative review and filed suit before the 
Attorney General had rendered a decision. Id. at 
*18. Moreover, following the denial of preclearance 
by the district court, the Attorney General precleared 
new non-retrogressive early voting hours for the five

109-295, a t 2-4 (2006). At the conclusion of its deliberations 
Congress, by a vote of 390 to 33 in the House and by a 
unanim ous vote in the Senate, 90 to 0, am ended and extended 
Section 5 for an additional 25 years. 152 Cong. Rec. S8012 
(daily ed. Ju ly  20, 2006); 152 Cong. Rec. H5143-5207 (daily ed. 
Ju ly  13, 2006). Given its careful consideration of the continue 
need for Section 5, Congress cannot be faulted for not 
conducting additional subsequent hearings.

27



covered counties, thus completely refuting Shelby 
County’s suggestion of D epartm ent of Justice 
intransigence. ECF docket no. 161.

On August 30, 2012, the three-judge court in 
Texas v. Holder, no. l:12-cv-00128, 2012 U.S. Dist. 
LEXIS 127119 (D.D.C.), denied Section 5
preclearance on retrogression grounds to a 
requirem ent th a t voters present certain limited 
forms of government-issued photo identification in 
order to cast a ballot at the polls, which the Texas 
legislature had added to the s ta te ’s existing voter 
identification law .18 The three-judge court’s 
unanimous decision refutes Shelby County’s 
suggestion th a t the Attorney G eneral’s earlier 
decision denying adm inistrative Section 5 
preclearance was an abuse of discretion.

Two days earlier, on August 28, 2012, the 
three-judge court in Texas v. United States, no. 1:11- 
cv-1303, 2012 U.S. Dist. LEXIS 121685 (D.D.C.), 
denied Section 5 preclearance to three statewide 
redistricting plans. The court found th a t the

18 Although it did not make conclusions as to discrim inatory 
purpose in light of its retrogression determ ination, the court 
noted that: “Ignoring warnings th a t SB 14, as w ritten, would 
disenfranchise m inorities and the poor, the legislature tabled or 
defeated am endm ents th a t would have: waived all fees for 
indigent persons who needed the underlying documents to 
obtain an EIC [Election Identification Certificate]; reim bursed 
impoverished Texans for ElC-related travel costs; expanded the 
range of identifications acceptable under SB 14 by allowing 
voters to present studen t or Medicare ID cards at the polls; 
required [D epartm ent of Public Safety] offices to rem ain open in 
the evening and on weekends; and allowed indigent persons to 
cast provisional ballots w ithout photo ID .” 2012 U.S. Dist. 
LEXIS a t *96-97 (record citations omitted).

28



congressional redistricting plan both had a 
retrogressive effect, id. a t *53, and a racially 
discrim inatory purpose. Id. a t *71.19 The state  
senate plan was denied preclearance because the 
court found th a t it was motivated in part by a 
racially discrim inatory purpose. Id. a t *92. And the 
court denied preclearance to the s ta te  house plan on 
retrogression grounds, id. a t *94; in addition, while it 
did not make a “purpose” determ ination on this plan, 
the court noted that, “a t a minimum, the full record 
strongly suggests th a t the retrogressive effect we 
have found may not have been accidental.” Id. a t 
*131. Texas did not make an adm inistrative Section 
5 submission of any of these plans before it filed suit. 
Id. a t *5.

19 The court found retrogression in several districts including 
District 23, an  earlier version of which th is Court found to 
violate Section 2 of the Voting Rights Act in 2006: “W est
Texas’s CD 23 has a complicated history under the VRA. In 
2006, the Suprem e Court held th a t CD 23, as then constituted, 
violated section 2. See LU LAC v. Perry, 548 U.S. 399, 425-42 
(2006). In response, the U.S. D istrict C ourt for the Eastern  
D istrict of Texas redrew  its boundaries in 2006 to be an 
‘opportunity d istric t,’ or one in which Hispanic voters would 
have an  opportunity  to elect the ir preferred candidates, as 
required by section 2. We now find th a t the Hispanic voters in 
CD 23 turned  th a t opportunity into a dem onstrated ability to 
elect, bu t th a t the 2010 redistricting  took th a t ability away.” 
2012 U.S. Dist. LEXIS 121685 a t *55 (record citations omitted).

29



V. The C on stitu tion ality  o f  th e 2006
A m endm ents is Not Properly B efore the
Court

The constitutionality of Congress’ 2006 
am endm ents to the Section 5 preclearance standards 
is not properly presented for review by this Court.

In the Court of Appeals, “Shelby County 
neither challenge[d] the constitutionality of the 2006 
am endm ents or even arguefd] tha t they increase 
section 5's burdens.” App. a t 66a. See also id. a t 76a 
(“Shelby did not argue th a t either of these 
am endm ents is unconstitutional”) (Williams, J., 
dissenting). The Court of Appeals properly declined 
to consider these issues since they were “entirely 
unbriefed, and as we have repeatedly made clear, 
‘appellate courts do not sit as self-directed boards of 
legal inquiry and research, but essentially as arbiters 
of legal questions presented and argued by the 
parties before them .’” Id. at 66a-67a (quoting 
Carducci v. Regan, 714 F.2d 171, 177 (D.C. Cir. 
1983)). Since Shelby County neither challenged in 
the lower courts the constitutionality of the 2006 
amendm ents, nor argued th a t they increase Section 
5's burdens, the County has waived any such 
argum ents.20

20 See Youakim v. M iller, 425 U.S. 231, 234 (1976) (“Ordinarily, 
th is Court does not decide questions not raised or resolved in 
the lower court.”); Singleton v. Wulff, 428 U.S. 106, 120 (1976) 
(“It is the general rule, of course, th a t a federal appellate court 
does not consider an  issue not pressed upon below.”); Spietsm a  
v. Mercury Marine, 537 U.S. 51, 56 n.4 (2002) (deeming 
argum ent as to application of federal m aritim e law waived 
because it was not raised below).

30



In addition, as the Court of Appeals correctly 
observed, the 2006 am endm ents “are implicated only 
in a subset of cases,” id. a t 67a, and thus are best 
addressed in the context of a preclearance dispute 
th a t substantively presents the question of the 
am endm ents’ nature  and scope. Accordingly, since 
the instan t case presents no such preclearance 
dispute, this is an independent reason for not 
addressing the 2006 am endm ents in this litigation.21

Shelby County contends, in its S tatem ent of 
the Case, th a t the 2006 am endm ents “increased the 
already significant federalism burden preclearance 
imposes of covered jurisdictions.” Petition a t 10. 
Nonetheless, the County’s Petition does not appear to 
assert tha t the constitutionality of the 2006 
reauthorization is affected by the 2006 am endm ents 
to the Section 5 preclearance standards. The 
Petition does not assert th a t the D.C. Circuit erred 
when it concluded tha t these am endm ents may not 
properly be considered in this case. Nor does Shelby

21 For these reasons, the m ajority did not address, on the 
m erits. Judge W illiam s’ assertion th a t the  am endm ents have 
created new burdens on covered jurisdictions. Judge W illiams’ 
dissent incorrectly describes the history of Section 5 and is 
contrary to Congress’ findings, as the am endm ents, in fact, 
merely restored the longstanding in terp re ta tions and 
applications of Section 5 which had been abrogated by Georgia 
v. Ashcroft, 539 U.S. 461 (2003), and Reno v. Bossier Parish  
School Board , 528 U.S. 320 (2000) (Bossier IP). As Congress 
stated: “The effectiveness of the Voting R ights Act of 1965 has 
been significantly weakened by the U nited S tates Suprem e 
Court decisions in Reno u. Bossier Parish I I  and Georgia u. 
Ashcroft, which have misconstrued Congress’ original in ten t in 
enacting the Voting Rights Act of 1965 and narrowed the 
protections afforded by section 5 of such Act.” 120 S tat. 577, 
sec. 2(b)(6); H.R. Rep. No. 109-478, a t 2 (2006).

3 1



County ask this Court to review either of the 
alternative legal determ inations made by the D.C. 
Circuit in this regard -  tha t Shelby County’s failure 
to brief the “preclearance am endm ents” issue below 
precluded consideration of this issue, and th a t Shelby 
County s facial challenge fails to present the 
requisite concrete circumstances in which the 
judiciary may appropriately consider the nature  and 
scope of the am endm ents.

For these reasons, any grant of certiorari in 
this appeal should preclude consideration of a facial 
challenge to the 2006 amendm ents.

VI. The Q uestion  P resented  is Incorrect
Finally, should certiorari be granted, the 

correct question before the Court would be w hether 
Congress acted within its authority under both the 
Fourteenth and Fifteenth Amendments when it 
reauthorized Section 5 and Section 4(b) in 2006. 
Thus, if certiorari is granted, the Court should reject 
Shelby County’s proposed “question presented” 
because it ignores the explicit congressional 
invocation of enforcement authority under the 
Fourteenth Amendment. Intervenors have
subm itted the correct “question presented” for 
consideration by the Court.

As discussed above, Congress specifically 
relied upon its enforcement authority under both the 
Fourteenth and Fifteenth Amendments when it 
reauthorized Section 5 in 2006. H.R. Rep. No. 109- 
478, a t 90 (“[T]he Committee finds the authority for 
this legislation under amend. XIV, § 5 and amend. 
XV, § 2); id. a t 53 n. 136 (stating th a t the 
reauthorization is based on both Amendments).

3 2



Congress’ Fourteenth Amendment authority, 
therefore, would be integral to the question before 
the Court.

Shelby County has provided no substantial 
reason to disregard Congress’ stated  reliance upon 
both the Fourteenth and Fifteenth Amendments. 
Shelby County does not -  and could not -  contend 
th a t the Fourteenth Amendment fails to reach racial 
discrimination in voting, nor does Shelby County 
identify any lim itation in th a t Am endm ent’s 
enforcement clause th a t would preclude Congress 
from enacting rem edial legislation to prevent and 
deter such discrimination. It is well established th a t 
the Equal Protection Clause of the Fourteenth 
Amendment prohibits racial discrimination in voting 
by state  and local governments. E.g., Hunter v. 
Underwood, 471 U.S. 222 (1985); Rogers v. Lodge, 
458 U.S. 613 (1982); White v. Regester, 412 U.S. 755 
(1973). See also LULAC v. Perry, 548 U.S. a t 440 
(Texas’ congressional redistricting plan “bears the 
m ark of intentional discrimination th a t could give 
rise to an equal protection violation.”). And the 
enforcement clauses of the Fourteenth and Fifteenth 
Amendments grant Congress “parallel power,” 
Boerne, 521 U.S. a t 518, and, in fact, use “virtually 
identical” language. Garrett, 531 U.S. a t 373. 
Accordingly, it was entirely proper for Congress to 
rely on both Amendments when it acted to 
reauthorize Section 5 and Section 4(b) in 2006.

Shelby County observes th a t this Court’s prior 
decisions upholding the constitutionality of Section 5 
relied exclusively on the Fifteenth Amendment. 
Petition a t 26 (citing Katzenbach, 383 U.S. a t 308-10; 
Rome, 446 U.S. a t 180-82). See also Lopez u.

3 3



Monterey County, 525 U.S. a t 283-84. While true, 
this also says very little since these cases included no 
discussion of the Fourteenth Amendment, and thus 
included no ruling on w hether Congress may rely on 
both Amendments in enacting remedies for racial 
discrimination in voting. Instead, it merely seems 
th a t the Supreme Court’s past focus on the Fifteenth 
Amendment was a function of jurisprudential 
historical development, and carried no substantive 
significance.22

22 In 1966, when the Court in Katzenbach first addressed the 
constitutionality of the Voting Rights Act, constitutional rulings 
regarding discrim ination in voting generally relied on the 
Fifteenth Am endment. E.g., Louisiana v. United States, 380 
U.S. 145, 153 (1965); Gomillion u. Lightfoot, 364 U.S. 339, 346 
(1960); Sm ith  v. A llwright, 321 U.S. 649, 666 (1944). However, 
beginning in the 1970s, the Suprem e Court built upon its one- 
person, one-vote rulings under the Fourteenth Amendment to 
hold th a t a different form of vote dilution -  one th a t denies 
minority voters the opportunity to elect candidates of choice -  
also violates the Fourteenth Am endm ent. See White v. 
Regester, supra. Thus, constitutional law as applied to 
discrimination in voting has progressed to including the 
prohibitions in both the Fourteenth and F ifteenth  Amendments.

3 4



CONCLUSION
The petition for a w rit of certiorari should be 

denied.

Respectfully Submitted,

Jon M. Greenbaum 
Counsel o f Record 

Robert A. Kengle 
Marcia Johnson-Bianco 
M ark A. Posner 
Lawyers’ Committee for 

Civil Rights U nder Law 
1401 New York Avenue, 

NW, Suite 400 
W ashington, DC 20005 
(202) 662-8325 

jgreenbaum@lawyerscomm 
ittee.org

John M. Nonna 
Patton Boggs LLP 
1185 Avenue of the 

Americas, 30th Floor 
New York, NY 10036 
(646) 557-5172

Counsel for Bobby Lee 
Harris

3 5



Debo P. Adegbile 
Acting Director Counsel 
Elise C. Boddie 
Ryan P. Haygood 
Dale E. Ho
NAACP Legal Defense 

& Educational Fund, 
Inc.

99 Hudson Street,
16th Floor

New York, NY 10013 
(212) 965-2200

Counsel for Earl 
Cunningham, Harry 
Jones, Albert Jones, 
Ernest Montgomery, 
Anthony Vines and  
William Walker

Kim Keenan 
Victor L. Goode 
NAACP
4805 Mt. Hope Drive 
Baltimore, MD 21215- 

3297
(410) 580-5120
Counsel for The 

Alabama State 
Conference of the 
National Association 
for the Advancement 
of Colored People, Inc.

Laughlin McDonald 
Nancy G. Abudu 
American Civil 

Liberties Union 
Foundation 

230 Peachtree Street, 
NW, Suite 1440 

Atlanta, GA 30303-1227 
(404) 523-2721

Steven R. Shapiro 
American Civil 

Liberties Union 
Foundation 

125 Broad S treet 
New York, NY 10004 
(212) 549-2500

David I. Schoen 
2800 Zelda Road, Suite 

100-6
Montgomery, AL 36106 
(334) 395-6611
Counsel for Bobby 

Pierson, Willie 
Goldsmith, Sr., Mary 
Paxton-Lee, Kenneth 
Dukes, and The 
Alabama State 
Conference of the 
National Association 
for the Advancement 
of Colored People, Inc.

Dated: September 24, 2012

3 6





£ S



No. 12-96

In the

Supreme (Eourt of tljE United States

SHELBY COUNTY, ALABAMA,

Petitioner,

v.

ERIC H. HOLDER, JR., ATTORNEY GENERAL, et al.

Respondents.

O n P etition for a W rit of C ertiorari to the 
U nited  S tates C ourt of A ppea ls  

for the D istrict of C olumbia C ircuit

REPLY BRIEF

Bert W. Rein 
Counsel o f Record 

William S. Consovoy 
Thomas R. McCarthy 
Brendan J. Morrissey 
W iley Rein LLP 

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

Attorneys fo r  Petitioner

October 9, 2012

0
C O U N S E L  P R E S S  

(800) 274-3321 • (800) 359-6859

244189

mailto:brein@wileyrein.com


TABLE OF CONTENTS

Page
TABLE OF C O N TEN TS........................................  i

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

REPLY BRIEF FOR PE TIT IO N ER ....................  l

CONCLUSION.......................................................... 8

I



TABLE OF CITED AUTHORITIES

ii

Page
CASES

City o f Rome v. Unites States,
446 U.S. 156 (1980)................................................  7

Georgia, v. Ashcroft,
539 U.S. 461 (2003)................................................  2

Georgia v. United States,
411 U.S. 526 (1973)................................................  7

Lopez v. Monterey Cnty.,
525 U.S. 266 (1999)................................................  7

Nw. Austin  Mun. Util. Dist. No. One v. Holder,
557 U.S. 193 (2009).......................................... .1 ,3 ,4 , 7

Reno v. Bossier Parish School Board,
528 U.S. 320 (2000)................................................  2

South Carolina v. Katzenbach,
383 U.S. 301 (1966)................................................  4 ,7

Yee v. City o f Escondido,
503 U.S. 519 (1992)................................................  2



in

Cited Authorities

Page
STATUTES

42 U.S.C. § 1973b.......................................................  5

DOCKETED CASES

City of Pinson v. Holder,
12-cv-255 (D.D.C. Apr. 20, 2012).......................... 6

City of Sandy Springs v. Holder,
No. 10-cv-1502 (D.D.C. Oct 26, 2010).................. 6

N ix v. Holder,
No. 12-81 (S. Ct.) 1



1

Respondent Holder (“Respondent”) concedes that 
Petitioner Shelby County (“Petitioner”) has presented 
what “is certainly an important question of federal law.” 
Brief for the Respondents in Opposition (“BIO”) at 15; see 
also N ix v. Holder, No. 12-81, Brief for the Respondents 
in Opposition (“Nix BIO”) at 27 (“[T]he constitutionality 
of Section 5 is an important federal question.”). Effectively 
conceding that certiorari is appropriate, see Nix BIO at 
27 (acknowledging that the Court “may ... be inclined 
to g ran t c e r tio ra r i” in th is case), Respondent and 
Respondents-Intervenors principally use their briefs in 
opposition to preview their merits arguments.

It would serve no purpose for Petitioner to further 
burden the certio rari record with the many reasons 
why the m ajority decision below and R espondents’ 
arguments fail to respond adequately to the concerns 
expressed by this Court in Northwest A ustin  Municipal 
Utility District No. One v. Holder, 557 U.S. 193 (2009) 
(“Northwest A u s tin ’'). The petition, Justice Thomas’s 
opinion in Northwest Austin, and Senior Judge Williams’s 
dissent dem onstrate why the majority opinion below 
should not be the final word on whether this “unusual” 
statute, BIO at 30, “is justified by current needs,” Nw. 
Austin, 557 U.S. at 203. Given its substantial federalism 
costs and enormous practical burdens on States and other 
covered jurisdictions, there are grave doubts about the 
constitutionality of preclearance under any applicable 
standard, see Brief of the National Black Chamber of 
Commerce as Amicus Curiae in Support of Petitioner, No. 
12-96 (filed Aug. 23, 2012) at 23-28. Moreover, the amicus 
briefs filed by several covered States on their own behalf 
and their pursuit of constitutional challenges in on-going

REPLY BRIEF FOR PETITIONER



2

preclearance litigation reinforce both the importance 
and inevitability of having the question presented by 
Petitioner “settled by this Court” in accordance with 
Rule 10(c). See Brief of Arizona, Alabama, Georgia, South 
Carolina, South Dakota, and Texas as Amici Curiae in 
Support of Petitioner (“Covered States Amicus Brief”) 
at 3 (“If this Court denies certiorari now, it will only 
delay the inevitable—the increasing costs associated with 
preclearance under the VRA, the statu te’s decreasing 
benefits, and the ever-increasing number of appeals that 
Covered Jurisdictions will be forced to file before Section 
5’s inevitable dem ise”).

Respondent does not contest th a t this case is an 
appropriate vehicle for definitively resolving the facial 
constitutionality of Section 5 and Section 4(b). Compare 
Nix BIO at 15-27. Nor could he. As previously explained, 
there is no justiciability problem, and the decision below 
comprehensively addressed Petitioner’s claims. See Pet. 
22. In addition, as Respondent acknowledges, all of the 
relevant issues are squarely before the Court, including 
Petitioner’s argum ent that the federalism  burden of 

•Section 5 has been exacerbated by the provisions of the 
2006 amendments to Section 5 of the Voting Rights Act 
that overruled Reno v. Bossier Parish School Board, 
528 U.S. 320 (2000) (“Bossier Parish IP ’), and Georgia v. 
Ashcroft, 539 U.S. 461 (2003). See Nix BIO 28 (“[Tjhere 
is no apparent obstacle to this Court’s consideration” of 
the impact of the revisions to the “substantive standard 
when assessing the constitutionality  of Section 5’s 
reauthorization” in th is case.) (citing Yee v. City o f 
Escondido, 503 U.S. 519, 534-35 (1992)); Br. of Former 
Departm ent of Justice Officials as Amicus Curiae in 
Support of Petitioner at 14 (“Congress’ abrogation of 
Georgia and Bossier Parish II is properly before the



3

Court, and only underscores the unconstitutionality of 
Section 5.”)- Petitioner is prepared to fully brief ail of 
these issues on the merits.

With little to say after having effectively conceded 
that the Petition meets this Court’s criteria for a grant of 
certiorari, Respondent creates and then attacks a straw 
man. He claims that “Petitioner urges this Court to grant 
the petition ... in order to review particular (sometimes 
hypothetical) applications of Section 5,” BIO at 31, such as 
preclearance denials of voter ID requirements and early 
voting changes. He then urges the Court to consider those 
issues in as-applied challenges to Section 5 rather than in 
the present facial challenge. BIO at 32. But Petitioner does 
not seek the resolution of those particular applications 
of Section 5 here. Rather, Petitioner referenced those 
particular applications of Section 5 solely to highlight how 
DOJ’s response to Northwest A ustin  has exacerbated 
the problematic aspects of the preclearance regime. 
They illustrate the practical effect of Section 5’s severe 
federalism burdens, as well as the disparate treatm ent 
of covered and non-covered States under the statu te’s 
selective and outdated coverage formula. In short, these 
applications underscore the need for prompt review by 
this Court.

Respondent’s only argum ent, then, for deferring 
resolution of the facial constitutionality of Section 5 and 
Section 4(b) is to await “a more fulsome record on bailouts 
. . . i n  the wake of Northwest A u stin .” BIO at 33. But 
that argument has no merit for several reasons. First, 
Northwest A ustin ’s interpretation of bailout eligibility 
did not expand bailout availability for the covered States 
or sub-jurisdictions responsible for voter registration



4

whose bleak bailout prospects are well documented by 
amici covered States. See Covered States Amicus Brief 
at 26-27. As those States explained, even if a State or 
political subdivision has had a perfect record of compliance 
since 1965, each failure by a governmental unit within its 
geographic boundaries resets the ten-year clock on that 
jurisdiction’s ability to bailout. Id. at 27. Accordingly, 
any impact of increased bailout eligibility is limited to 
smaller sub-jurisdictions so numerous that envisioning 
the withering away of the preclearance obligation through 
statutory bailout is a “mirage.” Nw. A ustin , 557 U.S. at 
215 (Thomas, J., concurring in the judgment in p art and 
dissenting in part). Indeed, even crediting Respondent’s 
bailout statistics, which are inflated by post-enactment 
evidence, see Pet. at 34-35 & n.5, only a tiny percentage 
(approximately 1.5%) of the more than 12,000 covered 
jurisdictions have bailed out of coverage since 1984. See 
BIO at 24 n.6 (“[BJailout has been granted in 36 cases 
(reaching a total of 190 jurisdictions).”)

Second, bailout is not responsive to Shelby County’s 
challenge to Section 4(b) either in “theory” or in “practice,” 
South Carolina v. Katzenbach, 383 U.S. 301, 330 (1966), 
and cannot save the ill-fitting coverage formula. Unlike 
in 1965, the current problems with the coverage formula 
are so pronounced tha t tinkering at the m argins will 
not render it constitutional. App. 99a-101a (Williams, J„ 
dissenting). As the Court has explained, “a departure from 
the fundamental principle of equal sovereignty requires 
a showing that a statu te’s disparate geographic coverage 
is sufficiently related to the problem that it targets.” Nw. 
Austin, 557 U.S. at 203. Because Congress refused to 
examine that issue, this Court’s review is needed.



5

Bailout is neither responsive to over-inclusiveness nor 
a complete remedy. As originally enacted in 1964, bailout 
was intended to address the inadvertent overreach of 
the coverage formula as to jurisdictions that “should not 
have been covered in the first place.” BIO at 4. But after 
the 1982 amendments to the VRA, that is no longer the 
case. Under the current statute, a covered jurisdiction 
cannot secure bailout by demonstrating that it should not 
have been subject to preclearance in the first place. Nor 
are the bailout criteria purely objective. Rather, covered 
jurisdictions also must prove to the satisfaction of the 
DOJ and the federal district court in Washington, D.C. 
that they:

(i) have elim inated voting procedures and 
methods of election which inhibit or dilute equal 
access to the electoral process; (ii) have engaged 
in constructive efforts to eliminate intimidation 
and harassment of persons exercising rights 
protected [under the Act]; and (iii) have engaged 
in other constructive efforts, such as expanded 
opportunity for convenient registration and 
voting for every person of voting age and the 
appointment of minority persons as election 
officials throughout the jurisdiction and at all 
stages of the election and registration process.

42 U.S.C. § 1973b(a)(l)(F)(i)-(iii).

Moreover, even if a covered jurisdiction can satisfy 
these highly subjective criteria, it remains subject to 
Section 5’s clawback provision, id. § 1973b(a)(5), which 
essentially requires a jurisdiction to continue to satisfy the 
statutory criteria for bailout for a ten-year period before



6

that jurisdiction is fully removed from coverage. Thus, 
bailout does not afford a jurisdiction “a change in its status 
from covered to non-covered.” BIO at 24. And it certainly 
does not exonerate jurisdictions that should have never 
been covered in the first place. Rather, it basically turns 
covered jurisdictions into parolees that may ultimately be 
liberated from coverage only if they continue to comply 
with the statu tory  criteria for an additional ten-year 
period of supervised release.

D O J’s implementation of the bailout mechanism 
illustrates the point. For example, DOJ required Pinson, 
Alabama, as a condition of bailout, to take “certain  
additional constructive measures” including the formation 
of a “citizens’ advisory group that is representative of the 
City’s diversity” to make election recommendations to the 
City and a reporting requirement to the United States 
within !)0 days after any municipal election administered 
by the City tha t details the “steps taken to increase 
opportunities for recruitm ent and participation of a 
diverse group of poll officials as well as the total number 
of persons by race who served as election officials in the 
election.” City o f Pinson v. Holder, 12-cv-255 (D.D.C. 
Apr. 20, 2012) (Doc. 11) (1111 47-50); see also City o f Sandy  
Springs v. Holder, No. 10-cv-1502 (D.D.C. Oct 26, 2010) 
(Doc. 8 )  ( M l  44-51) (imposing similar “administration and 
reports requirements” as a condition to bailout). If DOJ 
viewed bailout as an acknowledgement of the formula’s 
over-inclusiveness, it would not require a jurisdiction to 
agree to onerous conditions to secure bailout (even beyond 
the onerous statutory criteria themselves).

In short, there is no nexus between bailout under the 
current version of the VRA and the over-inclusiveness of



7

Section 4(b)’s coverage formula. It is, at most, a “modest 
palliative” that can in no way solve the massive problems 
with the current coverage formula. App. 101a (Williams, 
J., dissenting). The post-1982 bailout has not had, and 
cannot be expected in the foreseeable future to have, any 
significant impact on the actual coverage triggered by 
the Section 4(b) formula. Waiting for confirmation that 
bailout will not redress the constitutional injury being 
suffered by covered States thus will only make matters 
worse. Pet. 34-35.

*  * *

As Respondent repeatedly emphasizes, it was this 
Court that spoke definitively to the constitutionality of 
the VRA’s 1965 enactment in Katzenbach, 383 U.S. 301, 
and after each subsequent reauthorization of the statute 
as measured against the applicable Congressional record. 
BIO at 5 (citing Georgia v United States, 411 U.S. 526 
(1973); City o f Rome v. Unites States, 446 U.S. 156 (1980); 
Lopez v. Monterey Cnty., 525 U.S. 266 (1999)). Principles 
of constitutional avoidance foreclosed prompt review of the 
2006 reauthorization in Northwest A ustin  and sensibly 
afforded Congress the opportunity to address the “serious 
constitutional questions” the Court raised in that decision. 
557 U.S. at 204. But given Congress’ failure to respond, 
covered States “likely will be forced to continue to operate 
under the unconstitutional burdens of Sections 4 and 5 of 
the VRA unless and until this Court removes them. The 
Court should do so now.” Covered States Amicus Brief 
at 27.



8

CONCLUSION

The petition for writ of certiorari should be granted.

Respectfully submitted,

B ert W. R ein 
Counsel of Record 

W illiam S. Consovoy 
T homas R. McCarthy 
B rendan J. Morrissey 
W iley R ein LLP 

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

Attorneys for Petitioner

October 9, 2012

mailto:brein@wileyrein.com






(ORDER LIST: 568 U.S.)

FRIDAY, NOVEMBER 9, 2012 

CERTIORARI GRANTED

12-62 PEUGH, MARVIN V. UNITED STATES

The petition for a writ of certiorari is granted.

12-96 SHELBY COUNTY, AL V. HOLDER, ATT'Y GEN., ET AL.

The petition for a writ of certiorari is granted limited to 

the following question: Whether Congress’ decision in 2006 to

reauthorize Section 5 of the Voting Rights Act under the 

pre-existing coverage formula of Section 4(b) of the Voting 

Rights Act exceeded its authority under the Fourteenth and 

Fifteenth Amendments and thus violated the Tenth Amendment and 

Article IV of the United States Constitution.

12-133 AMERICAN EXPRESS COMPANY, ET AL. V. ITALIAN COLORS RESTAURANT

The petition for a writ of certiorari is granted. Justice 

Sotomayor took no part in the consideration or decision of this 

peti ti on.

12-207 MARYLAND V. KING, ALONZO J.

The petition for a writ of certiorari is granted.