Shelby County v. Holder Brief Amicus Curiae

    No. 12-96

2n®f)e
Supreme Court of tfje Mntteb States!

-------------- 4 --------------

SHELBY COUNTY, ALABAMA,
Petitioner,

v.

ERIC H. HOLDER, JR., ATTORNEY GENERAL, ETAL.,
Respondents.

-------------- 4--------------

On Writ Of Certiorari To The 
United States Court Of Appeals 

For The District Of Columbia Circuit
-------------------4 -------------------

BRIEF OF JOAQUIN AVILA, NEIL BRADLEY, 
JULIUS CHAMBERS, U.W. CLEMON, ARMAND 

DERFNER, JOSE GARZA, FRED GRAY, ROBERT 
MCDUFF, ROLANDO RIOS, ROBERT RUBIN, 

EDWARD STILL, ELLIS TURNAGE, AND 
RONALD WILSON AS AMICI CURIAE 

IN SUPPORT OF RESPONDENTS
----------------4 ----------------

Kieran P. Ringgenberg 
Counsel o f  Record 

Perry M. Grossman 
Maxwell V. Pritt 

Devon T. Hanley Cook 
Shira R. A. Liu 

Will P. Riffelmacher 
Boies, Schiller & Flexner LLP 

1999 Harrison Street, Suite 900 
Oakland, California 94612 

(510) 874-1000- 
kringgenberg@bsfllp. com

Counsel for Amici Curiae

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



1

INTEREST OF AMICI CURIAE............................  1
SUMMARY OF ARGUMENT................................. 2
ARGUMENT..............................................................  5

I. THE DISTINCT AND COMPLEMENTARY 
FUNCTIONS OF LITIGATION AND PRE­
CLEARANCE ARE BOTH NECESSARY 
TO COMBAT PERSISTENT AND WIDE­
SPREAD DISCRIMINATION IN COV­
ERED JURISDICTIONS.............................  5
A. Section 5 Continues To Thwart Dis­

crimination In Covered Jurisdictions 
That Would Evade Section 2 En­
forcement .................................................  8

B. Section 2 Litigation Remains Too Slow
And Resource-Intensive To Police Dis­
crimination In Covered Jurisdictions 
Without Section 5 Preclearance...........  15
1. Section 5 Preclearance Is Neces­

sary Because Case-by-Case En­
forcement Alone Remains Too 
Inefficient to Protect Minority Vot­
ing R ights........................................... 17

2. The High Cost of Section 2 Litiga­
tion Makes Case-by-Case En­
forcement of the Voting Rights Act 
Impracticable and More Burden­
some for Covered Jurisdictions...... 24

TABLE OF CONTENTS
Page



11

3. The Lack of Experienced Voting 
Rights Attorneys Makes Enforce- 

• ment by Section 2 Alone Impracti­
cable..................................................... 28

C. Only Section 5 Preclearance Can Keep 
Up With The Volume Of Discrimina­
tion That Takes Place At The Local 
Level.........................................................  30

II. THE DETERRENT EFFECT OF SECTION
5 CANNOT BE MINIMIZED OR IG­
NORED...........................................................  32
A. Substantial Evidence Supports Con­

gress’ Finding That Section 5 Deters 
Covered Jurisdictions From Enacting 
Discriminatory Practices......................  33

B. Section 5’s Deterrent Effect Is Critical
At The Local Level Where Voters Are 
Most Vulnerable To Discrimination 
And Have The Least Access To The 
Resources To Bring Section 2 Suits....  37

CONCLUSION..........................................................  40

APPENDIX A
Listing of Amici Curiae............................................... A1

TABLE OF CONTENTS -  Continued
Page



Ill

Cases

Beer v. United States, 425 U.S. 130 (1976).................. 5
Bone Shirt v. Hazeltine, No. Civ. 01-3032-KES,

2006 WL 1788307 (D.S.D. June 22, 2006).............29
Chisom v. Roemer, 853 F.2d 1186 (5th Cir.

1988)...........................................................................21
City ofBoerne v. Flores, 521 U.S. 507 (1997)............... 6
City o f Rome v. United States, 446 U.S. 156 

(1980)........................................................................... 17
Dillard v. Baldwin County Bd. o f Educ., 686 

F.Supp. 1459 (M.D. Ala. 1988)...........................12, 13
Dillard u. Chilton County Bd. o f Educ., 699 

F.Supp. 870 (M.D. Ala. 1988).............................12, 13
Dillard v. Chilton County Comm’n, 447 

F.Supp.2d 1273 (M.D. Ala. 2006)............................. 13
Dillard v. City o f Greensboro, 213 F.3d 1347 

(11th Cir. 2000).................................................... 13, 26
Gomillion v. Lightfoot, 364 U.S. 339 (1960).................1
Harper v. City o f Chicago Heights, Nos. 87 C 

5112, 88 C 9800, 2002 WL 31010819 (N.D.
111. Sept. 6, 2002)......................................................26

LULAC v. Perry, 548 U.S. 399 (2006).................. 14, 21
LULAC v. Perry, No. Civ. 2:03-CV-354, 2006 

WL 3069542 (E.D. Tex. Aug. 4, 2006)..................... 14
LULAC v. Perry, No. Civ.. 5:06-cv-010460 (W.D.

Tex. Dec. 5, 2006)

TABLE OF AUTHORITIES
Page

15



IV

Major v. Treen, 700 F.Supp. 1422 (E.D. La
1988)............................................................................26

Mississippi State Chapter Operation PUSH u. 
Mabus, 788 F.Supp. 1406 (N.D. Miss 1992).......... 26

Mississippi State Chapter, Operation PUSH v.
Attain, 674 F.Supp. 1245 (N.D. Miss. 1987)............11

Moore v. Beaufort County, 936 F.2d 159 (4th 
Cir. 1991).................................................................... 3g

Moultrie v. Charleston County, No. Civ. 2:01-cv- 
00562-PMD (D.S.C. Aug. 8, 2005).................... 25, 28

Perkins v. Matthews, 400 U.S. 379 (1971)...........31, 32
Perry v. Perez, 132 S. Ct. 934 (2012)............................. 1
Reynolds v. Sims, 377 U.S. 533 (1964).......................17
Rogers v. Lodge, 458 U.S. 613 (1982).......................... 17
Shelby County v. Holder, 811 F.Supp.2d 424 

(D.D.C. 2011).............................................................. 12
South Carolina v. Katzenbach, 383 U.S. 301 

(1966).................................................................. passim
Symm v. United States, 439 U.S. 1105 (1979)...........23
Tangipahoa Citizens for Better Government v.

Parish o f Tangipahoa, No. Civ. A.03-2710,
2004 WL 1638106 (E.D. La. July 19, 2004)..23, 24

Teague v. Attala County, 92 F.3d 283 (5th Cir.
1996)............................................................................22

Teague v. Attala County, No. Civ. A.191CV209DD,
1995 WL 1945387 (Mar. 1, 1995)............................. 22

TABLE OF AUTHORITIES -  Continued
Page



V

Thornburg v. Gingles, 478 U.S. 30 (1986)................. 18
United States v. Charleston County, No. Civ. 

2:01-cv-00155-PMD (D.S.C. May 24, 2002)............20
United States v. Charleston County, 2003 WL 

23525360 (D.S.C. Aug. 14, 2003).............................21
United States v. Charleston County, 316 

F.Supp.2d 268 (D.S.C. 2003)................................9, 10
Williams v. City o f Dallas, 734 F.Supp. 1317 

(N.D. Tex. 1990).........................................................21
Williams u. McKeithen, No. Civ. A. 05-1180,

2005 WL 2037545 (E.D. La. Aug. 8, 2005)...........19
Young v. Fordice, 520 U.S. 273 (1997)........................12

Statutes and Rules

42 U.S.C. §1973 (Section 2 ).................................passim
42 U.S.C. §1973c (Section 5 ) ...............................passim
Voting Rights Act of 1965, Pub. L. No. 89-100,

79 Stat. 437 (1965), et seq................................passim

Legislative H istory

An Introduction to the Expiring Provisions o f the 
Voting Rights Act and Legal Issues Related to 
Reauthorization: Hearing Before the S. Comm, 
on the Judiciary, 109th Cong. (2006)...............32, 39

TABLE OF AUTHORITIES -  Continued
Page



VI

TABLE OF AUTHORITIES -  Continued
Page

Fannie Lou Hamer, Rosa Parks, And Coretta 
Scott King Voting Rights Act Reauthorization 
And Amendments Act O f2006 (Part I): Hear­
ing Before the Subcomm. on the Constitution 
o f the H. Comm, on the Judiciary, 109th 
Cong. (2006)............................................................... 25

H.R. Rep. No. 91-397 (1970)..................................6
H.R. Rep. No. 94-196 (1975)..................................7
H.R. Rep. No. 109-478 (2006).............................passim

Modern Enforcement o f the Voting Rights Act: 
Hearing Before the S. Comm, on the Judici- 
ary, 109th Cong. (2006).................................... passim

Reauthorizing the Voting Rights Act’s Tempo­
rary Provisions: Policy Perspectives and 
Views from the Field: Hearing Before the 
Subcomm. on the Constitution, Civil Rights, 
and Property Rights o f the H. Comm, on the 
Judiciary, 109th Cong. (2006)................8, 26, 27, 35

Renewing the Temporary Provisions o f the 
Voting Rights Act: Legislative Options After
LULAC v. Perry, 109th Cong. (2006)................13, 38

S. Rep. No. 94-295 (1975)........................................ 9, ig
S. Rep. No. 109-295 (2006).................................passim

The Continuing Need for Section 5 Preclear­
ance: Hearing Before the S. Comm, on the 
Judiciary, 109th Cong. (2006)....................... passim



V ll

To Examine the Impact and Effectiveness o f the 
Voting Rights Act: Hearing Before the 
Subcomm. on the Constitution o f the H.
Comm, on the Judiciary, 109th Cong.
(2005) ............................................... 18, 24, 34, 35, 36

Understanding the Benefits and Costs o f 
Section 5 Pre-clearance: Hearing Before the 
S. Comm, on the Judiciary, 109th Cong.
(2006) .................................................................. 30, 37

Voting Rights Act: An Examination of the Scope 
and Criteria for Coverage Under the Special 
Provisions o f the Act, Hearing Before the 
Subcomm. on the Constitution o f the H.
Comm, on the Judiciary, 109th Cong. (2005).... 10, 20

Voting Rights Act: Evidence o f Continued Need, 
Hearing Before the Subcomm. on the Consti­
tution o f the H. Comm, on the Judiciary,
109th Cong. (2006)...........................................passim

Voting Rights Act: Section 5 o f the Act -  History,
Scope, and Purpose: Hearing Before the 
Subcomm. on the Constitution o f the H. Comm, 
on the Judiciary, 109th Cong. (2005)............ passim

Voting Rights Act: Section 5 -  Preclearance 
Standards: Hearing Before the Subcomm. on 
the Constitution o f the H. Comm, on the Ju­
diciary, 109th Cong. (2005)........................ 16, 33, 35

Voting Rights Act: The Judicial Evolution of 
the Retrogression Standard: Hearing Before 
the Subcomm. on the Constitution o f the H.
Comm, on the Judiciary, 109th Cong. (2005).

TABLE OF AUTHORITIES -  Continued
Page

18



V ll l

TABLE OF AUTHORITIES — Continued
Page

Other A uthorities

Department of Justice, Section 5 Changes by
Type and Year............................................................... g

Ellen Katz & The Voting Rights Initiative,
VRI Database Master List (2006), http:// 
sitemaker.umich.edu/votingrights/files/master 
list.xls (Katz Database).............................................. 28

Federal Judicial Center, “2003-2004 District 
Court Case-Weighting Study” (2005)....................... 19

Louis Brandeis, Other People’s Money (1933).............35
Michael J. Pitts, Let’s Not Call the Whole Thing 

Off Just Yet: A Response to Samuel 
Issacharoff’s Suggestion to Scuttle Section 5 
o f the Voting Rights Act, 84 Neb. L. Rev. 605
(2005)........................................................................30, 38

Nathaniel Persily, The Promise and Pitfalls o f 
the New Voting Rights Act, 117 Yale L. J. 174
(2007).............................................................................. 34

Nina Perales et al., Voting Rights in Texas: 
1982-2006 (June 2006) (Texas Report)... 10, 11, 14, 34

Pamela S. Karlan, Section 5 Squared: Congres­
sional Power To Extend and Amend the Vot­
ing Rights Act, 44 Hous. L. Rev. 1 (2007).............. 38

Peter Hardin, Bailouts from US Voting Laws:
State Localities Win Relief from Having to get 
Federal Clearance for Each Change in Elec­
tion Laws, Rich. Times Dispatch, Mar. 16,
2006 27



1

INTEREST OF AMICI CURIAE1

Amicus curiae are long-serving members of the 
voting rights bar who each bring to bear decades of 
experience litigating hundreds of actions under 
Sections 2 and 5 of the Voting Rights Act of 1965 
(“VRA”). Amici have represented minority voters 
before this Court in cases spanning more than 50 
years from Gomillion v. Lightfoot, 364 U.S. 339 
(1960), through Perry v. Perez, 132 S. Ct. 934 (2012).

Amici have personally and repeatedly witnessed 
the efficient and effective interplay between Section 2 
litigation and the Section 5 preclearance process in 
covered jurisdictions; experienced the burdens that 
Section 2 litigation imposes on minority voters, 
jurisdictions, and courts; and witnessed firsthand the 
strong deterrent effect of Section 5 preclearance. 
Amici provided Congress with extensive evidence of 
their experiences through testimony and reports 
submitted during the hearings on the 2006 reauthori­
zation.

Amici submit this brief to urge the Court to give 
due consideration, as Congress did, to the practical 
consequences of attempting to fill the void left by 
Section 5 with case-by-case-litigation under Section 2,

1 This brief is filed with the consent of all parties. Blanket 
consents are on file with the clerk. No counsel for any party 
authored this brief in whole or in part, nor did any person other 
than amici and their counsel make a monetary contribution to 
the preparation or submission of this brief.



2

including the discrimination it would leave un­
remedied, as well as the burdens it would place on 
courts and litigants — including the covered jurisdic­
tions themselves. Amici have a professional interest 
in the outcome of this case because, if Section 5 were 
struck down, they -  along with the small number of 
colleagues with the experience and expertise neces­
sary to litigate such cases -  would be left to take up 
the task, as best they could, of enforcing the VRA in 
covered jurisdictions through case-by-case litigation. 
Amici submit this brief to support Congress’ finding 
that Section 2 litigation is not yet an adequate substi­
tute for Section 5 preclearance.

----------------♦ ----------------

SUMMARY OF ARGUMENT

Congress enacted Section 5 in 1965 because 
voting suits were “unusually onerous to prepare,” 
“exceedingly slow,” and, even when successful, could 
not stop offending jurisdictions from enacting new 
discriminatory measures. South Carolina v. 
Katzenbach, 383 U.S. 301, 314 (1966). Since then, 
Section 2 litigation and Section 5 preclearance have 
operated effectively as the sword and shield of voting 
rights enforcement. Petitioner’s assertion that case- 
by-case litigation under Section 2 can effectively 
replace Section 5 preclearance ignores the burdens of 
Section 2 litigation and the benefits of Section 5 
preclearance. An extensive legislative record under­
lies Congress’ finding that Section 5 remains neces­
sary.



3

First, Congress considered evidence that Section 
5 performs a distinct, prophylactic function, which 
case-by-case litigation alone could not replace. While 
Section 2 seeks to eradicate existing discriminatory 
election practices, Section 5 preclearance can block 
discriminatory changes to jurisdictions’ voting prac­
tices before they take effect. Section 5 maintains the 
progress achieved through litigation and prevents 
backsliding, by assigning to covered jurisdictions the 
burden of demonstrating that proposed changes have 
no discriminatory purpose or retrogressive effect on 
minority voting rights. Thus, Section 5 “shift[s] the 
advantage of time and inertia” from the perpetrators 
of discrimination to the victims. Katzenbach, 383 U.S. 
at 328.

Second, Congress considered compelling evidence 
that Section 2 litigation is too cumbersome and 
expensive to perform Section 5’s preemptive role in 
preventing new discriminatory changes before they 
take effect. The voting rights bar lacks the numbers 
and resources to address the current volume of poten­
tial Section 2 litigation, let alone to prosecute the vast 
number of Section 2 lawsuits that would be necessary 
to block all the discriminatory changes that would be 
implemented without Section 5. Even when available 
resources permit investigation and filing a complaint, 
the slow pace of Section 2 litigation would leave 
discriminatory voting practices in effect. Challenges 
of timing, the difficulty of showing a reasonable 
likelihood of success before discovery, the need for 
expert analysis, and the natural hesitance of federal



4

courts to interfere with scheduled elections make 
preliminary injunctions especially difficult to obtain 
in Section 2 cases. Candidates elected during the 
pendency of litigation enjoy the benefits of incumben­
cy, even if litigation is ultimately, successful and the 
election declared illegal. Section 2 litigation is also 
unusually expensive, both for plaintiffs and ultimate­
ly for taxpayers who must bear the expense of defend­
ing litigation (including plaintiffs’ attorneys’ fees, 
when litigation is successful). On the other hand, 
Section 2 plaintiffs’ recovery of fees and costs is 
uncertain and often takes years. By comparison, 
Section 5 submissions are quick and inexpensive for 
covered jurisdictions to prepare and much more 
efficient to resolve.

Third, Section 5 preclearance has a deterrent 
effect that Section 2 litigation does not. Petitioner 
asserts that Congress’ conclusion that Section 5 
deters covered jurisdictions from enacting discrimina­
tory practices is based on “supposition and conjec­
ture.” The legislative record disproves this assertion. 
Congress received extensive testimony demonstrating 
the deterrent effect of preclearance, supported by 
numerous examples of discriminatory voting changes 
that covered jurisdictions proposed or considered but 
ultimately discarded due to concerns that the change 
might not be precleared. By contrast, Section 2 is a 
relatively weak deterrent because litigation can only 
dismantle discrimination on a piecemeal basis, leav­
ing challenged practices in effect until minority voters 
are able to find the resources to sue and prevail in 
slow, costly litigation.



5

In sum, the record before Congress supports the 
conclusions that a shift from a comprehensive en­
forcement regime to a purely reactive one, dependent 
entirely on Section 2, would leave new and backslid­
ing discrimination unaddressed; would overburden 
not only the Courts but also the covered jurisdictions 
with expensive litigation; and would unleash discrim­
inatory laws that Section 5 has deterred.

---------------- ♦ ----------------

ARGUMENT

I. THE DISTINCT AND COMPLEMENTARY 
FUNCTIONS OF LITIGATION AND PRE­
CLEARANCE ARE BOTH NECESSARY 
TO COMBAT PERSISTENT AND WIDE­
SPREAD DISCRIMINATION IN COVERED 
JURISDICTIONS.

Congress designed the VRA to provide a compre­
hensive voting rights enforcement scheme that both 
remedies existing discriminatory practices and pre­
serves resulting gains. Beer v. United States, 425 U.S. 
130, 140-41 (1976).

Section 5 preclearance was enacted to bolster an 
ineffective enforcement regime that had relied solely 
on slow and costly case-by-case litigation to eradicate 
entrenched discrimination. See H.R. Rep. No. 109-478 
at 66 (2006) (noting that failing to reauthorize Sec­
tion 5 “would reverse the burden of proof and restore 
time consuming litigation as the principal means of



6

assuring the equal right to vote”) (quoting H.R. Rep. 
No. 91-397 (1970)); Katzenbach, 383 U.S. at 314, 327- 
28; City o f Boerne v. Flores, 521 U.S. 507, 526 (1997) 
(noting the necessity of Section 5 due to “the ineffec­
tiveness of the existing voting rights laws and the 
slow, costly character of case-by-case litigation”) 
(internal citations omitted). Section 2 aims to eradi­
cate existing discriminatory voting practices nation­
wide, 42 U.S.C. §1973(a), while Section 5 preserves 
those gains and prevents backsliding by blocking 
jurisdictions with grave records of discrimination from 
enacting new retrogressive or purposefully discrimi­
natory voting changes, id. at §1973c(a). Congress, in 
repeatedly reauthorizing Section 5, and this Court, in 
repeatedly upholding it, have been less concerned 
with instances of gamesmanship than with “the slow, 
costly character of case-by-case litigation.” Flores, 521 
U.S. at 526. Nonetheless, the legislative record shows 
that Section 5 continues to thwart attempts by cov­
ered jurisdictions to evade judgments and consent 
decrees that result from Section 2 litigation, in spite 
of Petitioner’s contrary assertion. See Pet. Br. 25.

While Section 2 litigation is vital to remedy 
existing discriminatory voting practices, it is insuffi­
cient. Voting Rights Act: Section 5 o f the Act -  History, 
Scope, and Purpose: Hearing Before the Subcomm. on 
the Constitution o f the H. Comm, on the Judiciary, 
109th Cong. 92 (2005) (History, Scope, & Purpose)', 
Modern Enforcement o f the Voting Rights Act: Hear­
ing Before the S. Comm, on the Judiciary, 109th



7

Cong. 149 (2006) (Modern Enforcement). Without 
Section 5 preclearance to preserve the gains of Sec­
tion 2 litigation, covered jurisdictions could simply 
adopt different but equally discriminatory voting 
procedures and then defy minority voters “to sustain 
the burden of proving that the new law, too, was 
discriminatory.” H.R. Rep. No. 94-196 (1975) at 57-58; 
see History, Scope, & Purpose 82-83. Even if minority 
voters can muster the resources to sue, these new 
discriminatory practices and procedures can remain 
in effect for years while litigation is pending. History, 
Scope, & Purpose 92, 97, 101; Voting Rights Act: 
Evidence o f Continued Need, Hearing Before the 
Subcomm. on the Constitution o f the H. Comm, on the 
Judiciary, 109th Cong. 97 (2006) (Evidence o f Con­
tinued Need)\ The Continuing Need for Section 5 
Preclearance: Hearing Before the S. Comm, on the 
Judiciary, 109th Cong. 15 (2006) (Continuing Need). 
But Section 5 preclearance “shift[s] the advantage of 
time and inertia” to minority voters by placing a 
limited burden on covered jurisdictions to demon­
strate only that their changes have neither the pur­
pose nor effect of making minority voters worse off. 
Katzenbach, 383 U.S. at 314. Because preclearance 
submissions are, by orders of magnitude, less expen­
sive than litigation, Section 5 spares minority voters 
the burden of prosecuting Section 2 cases and spares 
covered jurisdictions the substantial cost of defending 
such lawsuits. See infra Section I.B.2.

Preclearance also ensures that all proposed 
changes receive meaningful and expeditious review.



8

Reauthorizing the Voting Rights Act’s Temporary 
Provisions: Policy Perspectives and Views from the 
Field: Hearing Before the Subcomm. on the Constitu­
tion, Civil Rights, and Property Rights o f the H. 
Comm, on the Judiciary, 109th Cong. 11-13 (2006) 
(Policy Perspectives). This scrutiny is especially 
important for local-level changes that might other­
wise go unnoticed, but affect matters of daily im­
portance including education, transportation, and 
property taxation. See Evidence o f Continued Need 
1505; Continuing Need 15. Without preclearance, 
minority voters and the voting rights bar lack the 
resources to review more than a tiny fraction of the 
more than 14,000 changes proposed annually by 
covered jurisdictions. Department of Justice, Section 
5 Changes by Type and Year;2 Modern Enforcement 
149; History, Scope, & Purpose 79, 84. The legislative 
record supports Congress’ finding that Section 2 
litigation remains an inadequate substitute for Sec­
tion 5 preclearance. See H.R. Rep. No. 109-478 at 57.

A. Section 5 Continues To Thwart Dis­
crimination In Covered Jurisdictions 
That Would Evade Section 2 Enforce­
ment.

In 1965, Congress was presented with evidence 
that state and local officials attempted to circumvent 
federal court decisions striking down their illegal

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

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


9

voting procedures and practices “by simply adminis­
tering new and novel discriminatory schemes and 
devices.” H.R. Rep. No. 109-478, at 7-8 (2006). In its 
2006 reauthorization, Congress considered evidence 
that Section 5 continues to prevent covered jurisdic­
tions from using novel devices to gut successful voting 
rights litigation. In each recent example discussed 
below, Section 5 enabled minority voters to avoid 
pursuing successive lengthy and costly Section 2 suits 
against a covered jurisdiction’s efforts at circumven­
tion.

In 2004, Section 5 prevented Charleston County, 
South Carolina from making an end-run around a 
federal court’s ruling that an at-large election system 
with a majority-vote requirement discriminated 
against minority voters. H.R. Rep. No. 109-478, at 39- 
40; S. Rep. No. 109-295, at 314 (2006). Before 2004, 
the Charleston County school board used an at-large 
system with no majority requirement. Evidence of 
Continued Need 1946. By contrast, the county council 
was elected under an at-large system with a majority 
vote requirement that made it difficult for members 
of the African-American community to elect their 
candidates of choice. Id.; United States v. Charleston 
County, 316 F.Supp.2d 268, 274, 294 (D.S.C. 2003). 
In 2001, the federal Department of Justice (DOJ) and 
minority voters initiated parallel Section 2 actions 
that finally ended the county council’s discriminatory 
system. Id. at 271-72. Against a backdrop of recent 
and longstanding intentional discrimination against 
black voters in Charleston County, id. at 286 n.23, the



10

court found the council’s at-large system had a dis­
criminatory effect in violation of Section 2, id. at 306. 
A month after the district court held that the county 
council’s method of election violated Section 2, the 
South Carolina General Assembly, “led by the 
Charleston legislative delegation,” enacted a law that 
adopted a de facto majority vote requirement for the 
county school board, “essentially recreating the 
electoral system for county council.” Evidence o f 
Continued Need 1946. The Attorney General objected 
and stopped this attempt at retrenchment before it 
could take effect. Voting Rights Act: An Examination 
o f the Scope and Criteria for Coverage Under the 
Special Provisions o f the Act, Hearing Before the 
Subcomm. on the Constitution o f the H. Comm, on 
the Judiciary, 109th Cong. 80, 85 (2005) {Scope & 
Criteria). As plaintiffs’ counsel testified before the 
House, “[w]e won, and as soon as we won . . . the 
legislature adopted the exact same election system for 
the school board.” Id. at 80.

Section 5 also thwarted the repeated efforts of 
the city of Seguin, Texas to suppress minority turnout 
and dilute minority voting strength. Latino voters 
successfully sued the city for Section 2 violations 
three times between 1978 and 1993 over redistricting 
plans designed to maintain an Anglo city council in 
the majority-minority city. Nina Perales et al., Voting 
Rights in Texas: 1982-2006, 29 (June 2006) {Texas



11

Report).6 When 2000 census figures showed Latinos 
poised to elect a majority of the city council, the 
Attorney General objected to a proposed redistricting 
designed to preserve the Anglo majority. Id. The city 
subsequently corrected its map, “but then closed its 
candidate filing period so that [an] Anglo incumbent 
would run for office unopposed.” Id. Latino voters 
then filed a successful Section 5 suit, the election was 
enjoined, and, after the parties negotiated a new 
election date, the action was settled, “and today, a 
Latino majority serves on the Seguin City Council.” 
Id.

As a third example, Section 5 has also blocked 
attempts in Mississippi to backslide on a statewide 
scale. See, e.g., S. Rep. No. 109-295 at 224. Black 
voters there were able to bring a successful Section 2 
action against the state’s century-old dual registra­
tion system for state and municipal elections, origi­
nally “enacted as part of the ‘Mississippi plan’ to deny 
blacks the right to vote following the Constitutional 
Convention of 1890.” Mississippi State Chapter, 
Operation PUSH v. Allain, 674 F.Supp. 1245, 1251 
(N.D. Miss. 1987); Modern Enforcement 152. The 
district court ruled the dual-registration system 
illegal in 1987 and its judgment was affirmed in 1991, 
prompting the state to adopt a unitary registration 
system for all elections. Modern Enforcement 152. But 3

3 Available at http://www.protectcivilrights.org/pdf/voting/ 
TexasVRA.pdf.

http://www.protectcivilrights.org/pdf/voting/


12

only four years later, Mississippi re-enacted dual­
registration for state and federal elections and 
refused to submit the plan for preclearance until 
ordered to by this Court. Modern Enforcement 16; 
Young v. Fordice, 520 U.S. 273, 275 (1997). “Only 
after the DOJ objected [to the state’s preclearance 
submission for the dual registration plan] did Missis­
sippi return to the unitary registration system it had 
adopted after the Operation PUSH decision.” Modern 
Enforcement 149.

Numerous Alabama localities provide a fourth 
example. In 1986, a federal court found that a de­
fendant class of 183 cities, counties, and school 
boards in Alabama (including Shelby County) violated 
Section 2 by switching from single-member to at-large 
elections and enacting “numbered place” and “anti­
single shot” voting procedures “for the purpose of 
minimizing black voting strength.” Dillard u. Bald­
win County Bd. o f Educ., 686 F.Supp. 1459, 1461 
(M.D. Ala. 1988); see Shelby County v. Holder, 811 
F.Supp.2d 424, 442 (D.D.C. 2011); History, Scope, & 
Purpose 3201. In one spinoff case, the Chilton County 
Commission admitted that its at-large voting system 
violated Section 2 and it entered into a court- 
approved settlement that made temporary changes 
until the Commission proposed and the state legisla­
ture enacted a new set of procedures. History, Scope, 
& Purpose 3202; Dillard u. Chilton County Bd. o f 
Educ., 699 F.Supp. 870, 871 (M.D. Ala. 1988). Over a 
decade later, the temporary system remained and 
an all-white group intervened to ask the court to



13

invalidate the 1988 settlement. Renewing the Tempo­
rary Provisions o f the Voting Rights Act: Legislative 
Options After LULAC v. Perry, 109th Cong. 379-80 
(2006) (Legislative Options)-, see Dillard v. Chilton 
County Comm’n, 447 F.Supp.2d 1273, 1275 (M.D. Ala. 
2006). In 2003, the Chilton County Commission 
adopted a resolution at intervenors’ request urging 
the passage of a local act restoring a voting system 
that the Commissioners, the plaintiffs, and the dis­
trict court had fifteen years earlier all agreed violated 
Section 2. Legislative Options 379-80. However, 
Section 5 and the DOJ’s refusal to preclear the “new” 
system prevented its implementation. Id. at 380. 
Section 5 has prevented other Dillard jurisdictions 
from backsliding (and from circumventing settled 
rules) as well. See Evidence o f Continued Need 452-55 
(discussing post -Dillard objections and further litiga­
tion against City of Foley and Baldwin County); 
Legislative Options 376-77 (discussing post -Dillard 
objections to proposed changes in Camden and Val­
ley). “The preclearance provisions of Section 5 . . . 
were indispensable” to preserving the gains of the 
Dillard litigation on a statewide scale. Legislative 
Options 380; see S. Rep. No. 109-295, at 127.

The legislative record contains numerous other 
examples of Section 5 protecting voters in covered 
jurisdictions from similar evasive maneuvers. See, 
e.g., H.R. Rep. No. 109-478 at 38 (Section 5 objection 
in 1989 blocked redistricting plan adopted in Lancas­
ter, South Carolina after, settlement of Section 2 
claims, which would have added additional city



14

council seats, watering down influence of black voters 
and protecting white incumbents); Texas Report 23 
(after settling Section 2 action by agreeing to imple­
ment single-member districts, Haskell Consolidated 
Independent School District attempted to return to 
at-large elections but was stopped by DOJ objection); 
History, Scope, & Purpose 82-83 (after settling Sec­
tion 2 action by agreeing to at-large elections, City of 
Freeport, Texas drew objection in 2002 for attempting 
to reinstitute at-large election); Evidence o f Contin­
ued Need 1965-66 (Section 5 objection in 1994 blocked 
Barnwell, South Carolina’s attempt to adopt a dis­
criminatory majority-vote requirement that a district 
court had enjoined in 1986, after the city ignored 
Section 5 objection to the city’s 1984 proposal to adopt 
the same majority-vote requirement); Evidence o f 
Continued Need 1619 (“Between 1982 and 2003, 
[eleven Louisiana] parishes were ‘repeat offenders,’ 
and thirteen times the DOJ noted that local authori­
ties were merely resubmitting objected-to proposals 
with cosmetic or no changes”).

The import of Section 5 has been confirmed by 
post-reauthorization experience. After this Court held 
that Texas’ congressional redistricting plan violated 
Section 2, League o f United Latin American Citizens 
(“LULAC”) v. Perry, 548 U.S. 399, 442 (2006), the 
district court redrew the boundaries and ordered 
special elections, with runoff elections required if no 
special election candidate received more than 50% of 
the vote. Civ. 2:03-CV-354, 2006 WL 3069542 (E.D. 
Tex. Aug. 4, 2006). After no candidate in district 23



15

received a majority, the Secretary of State scheduled 
the runoff election for December 12, which was a 
Catholic feast day when many Latino voters would 
attend an after-work mass, but did not submit the 
date for preclearance. Compl. at 2, LULAC v. Perry, 
No. 5:06-cv-010460 (W.D. Tex. Dec. 1, 2006). The 
Texas Secretary of State also failed to preclear a 
drastically shortened early voting period that did not 
include any weekend days. Id. at 2-3. LULAC subse­
quently filed a Section 5 action to enjoin the election 
and compel preclearance. Id. Within four days, the 
government relented and modified early voting dates 
and times. See Order, LULAC v. Perry, No. 5:06-cv- 
010460 (W.D. Tex. Dec. 5, 2006).

If case-by-case litigation were the sole means of 
voting rights enforcement, authorities in covered 
jurisdictions could have used these means of circum­
vention to discriminate against minority voters 
despite not only the presence of Section 2 but also the 
existence of a Section 2 judgment. With effective 
Section 5 enforcement, these persistent attempts at 
discrimination were promptly and effectively thwart­
ed.

B. Section 2 Litigation Remains Too Slow 
And Resource-Intensive To Police Dis­
crimination In Covered Jurisdictions 
Without Section 5 Preclearance.

The House Committee on the Judiciary “k[new] 
from history that case-by-case enforcement alone is



16

not enough to combat the efforts of certain States and 
jurisdictions to discriminate against minority citi­
zens, and f[ound] that Section 2 would be ineffective 
to protect the rights of minority voters.” H.R. Rep. 
No. 109-478, at 57. Section 2 actions have become 
increasingly complex and resource-intensive in recent 
years. Exacerbating those burdens, officials that 
benefit from incumbency due to a jurisdiction’s dis­
criminatory voting practice have an incentive to 
prolong litigation to keep the practice in effect and 
access to taxpayer funds to defend themselves. See 
Voting Rights Act: Section 5 — Preclearance Stan­
dards: Hearing Before the Subcomm. on the Constitu­
tion o f the H. Comm, on the Judiciary, 109th Cong. 
4-5 (2005) (Preclearance Standards). Unfortunately, 
the burdens of Section 2 litigation can prevent minor­
ity voters from pursuing claims altogether. Evidence 
o f Continued Need 1620. And even when a minority 
voter is ready and willing to pursue claims, civil 
rights organizations and the few members of the 
voting rights bar may not have the time or funding to 
take such resource-intensive cases. Modern Enforce­
ment 149; Continuing Need 15.

Congress intended Section 5 to help level the 
playing field. Section 5 compensates for Section 2’s 
shortcomings by shifting the burden to covered juris­
dictions and the federal government to work coopera­
tively and expediently to protect the right of minority 
voters to cast a fair ballot in every election.



17

1. Section 5 Preclearance Is Necessary 
Because Case-by-Case Enforcement 
Alone Remains Too Inefficient to 
Protect Minority Voting Rights.

The “unusually onerous” nature of voting rights 
litigation has always been the key reason for the 
preclearance remedy. Katzenbach, 383 U.S. at 314. 
Ferreting out evidence of discriminatory intent re­
quires rigorous investigation into official decision­
making. See Rogers v. Lodge, 458 U.S. 613, 618 (1982) 
(“[DJetermining the existence of a discriminatory 
purpose demands a sensitive inquiry into such cir­
cumstantial and direct evidence of intent as may be 
available.”) (citation and internal quotation marks 
omitted).

Congress also considered evidence that litigation 
is more onerous today because modern voting dis­
crimination, including vote dilution, is “more subtle 
than the visible methods used in 1965.” H.R. Rep. No. 
109-478, at 6. Although modern discrimination may 
be more subtle, Congress and this Court have each 
long recognized that vote dilution is no less effective 
than its antecedents at denying minorities effective 
political participation. See id.; Reynolds v. Sims, 377 
U.S. 533, 555 (1964) (“[T]he right of suffrage can be 
denied by a debasement or dilution of the weight of a 
citizen’s vote just as effectively as by wholly prohibit­
ing the free exercise of the franchise.”); see also City 
of Rome v. United States, 446 U.S. 156, 181 (1980) 
(“ As registration and voting of -minority citizens 
increases [sic], other measures may be resorted to



18

which would dilute increasing minority voting 
strength’ ”) (quoting S. Rep. No. 94-295, at 15-16 
(1975), 1975 U.S.C.C.A.N 782-785). Therefore, Con­
gress amended the VRA in 1982 to fight vote dilution 
by permitting Section 2 claims to be proven on the 
basis of discriminatory results alone. To Examine the 
Impact and Effectiveness of the Voting Rights Act: 
Hearing Before the Subcomm. on the Constitution of 
the H. Comm, on the Judiciary, 109th Cong. 7 (2005) 
(.Impact and Effectiveness). But proving discriminato­
ry effect requires not only rigorous investigation, but 
expert testimony on numerous factors, including 
geographic compactness; political cohesion; racially- 
polarized voting; the history of discrimination; dis­
crimination-enhancing devices; candidate slating 
processes; the effect of socioeconomic disparities on 
political participation; racial campaign appeals; the 
extent of minority office holding; responsiveness to 
minority needs; and the policy underlying the chal­
lenged practice. See Thornburg v. Gingles, 478 U.S. 
30, 36-38 (1986); Continuing Need 9. “[I]n a typical 
voting rights case, you need probably three experts: a 
demographer, to draw plans; a statistician, to analyze 
voting patterns; and a political scientist or historian, 
to talk about what . . . the present-day impact of race 
is in a jurisdiction.” Voting Rights Act: The Judicial 
Evolution of the Retrogression Standard: Hearing 
Before the Subcomm. on the Constitution o f the H. 
Comm, on the Judiciary, 109th Cong. 69 (2005).

The Federal Judicial Center’s analysis of tens of 
thousands of cases confirms that voting cases are not



19

only among the most time- and resource-intensive, 
but that they have become significantly more so in 
recent years. Federal Judicial Center, “2003-2004 
District Court Case-Weighting Study,” Table 1 (2005) 
(concluding that voting cases consumed the sixth- 
most judicial resources out of sixty-three types of 
cases). The study assigned voting cases a weight of 
3.86 — meaning such cases take nearly four times the 
work of an average case. Id. In comparison, antitrust 
cases were assigned a weight of 3.45. Id. The FJC 
also concluded that voting cases had become much 
more burdensome over time, finding voting case 
weights “increased significantly” from 1993 to 2004. 
Id. at App’x Z, at 4 & attach. 2.

In practical terms, Section 2 litigation often 
operates without regard to the urgency of the political 
process, leaving elections to be held under illegal 
conditions as cases crawl through the courts. Contin­
uing Need 15; Evidence o f Continued Need 92. Prelim­
inary injunctions in Section 2 cases are 
extraordinarily difficult to obtain in practice. To 
begin, gathering the evidence necessary to establish 
at the preliminary injunction stage plaintiffs’ likeli­
hood of success on the merits can be an insurmount­
able challenge in the short timeframe before an 
imminent election. See, e.g., Williams v. McKeitlien, 
Civ. A. 05-1180, 2005 WL 2037545, at *3 (E.D. La. 
Aug. 8, 2005) (denying preliminary injunction motion 
filed against a special election qualifying period 
because “Plaintiffs might very well prevail on their 
claims following a trial on the merits but at this time



20

Plaintiffs are relying far too heavily on the results 
obtained in other cases, all of which were determined 
following a full trial on the merits and not on a mo­
tion for a preliminary injunction.”).

Moreover, experience confirms that it asks a 
great deal of a district court judge, with an incom­
plete record and limited time, to intervene to stop or 
alter an upcoming election, even if the plaintiffs’ case 
is meritorious. For example, in one such case the 
district court denied plaintiffs’ request for a prelimi­
nary injunction against a discriminatory at-large 
election system, notwithstanding its a finding that 
plaintiffs were likely to succeed on the merits. United 
States v. Charleston County, 2:01-cv-00155-PMD, at 4 
(D.S.C. May 24, 2002). “[A]ssum[ing] a posture of 
deference to the established electoral scheme,” the 
court expressed its confidence that the county would 
respond promptly if violations were established and 
noted that the cost of staying the scheduled election 
and holding a special election could amount to 
$100,000. Id. After trial, the court found a violation, 
but the county did not rush to a remedy; instead 
attempting to delay elections for the new majority- 
minority districts, fighting the suit for another two 
years, and spending $2 million of public funds -  or 
the cost of 20 special elections — to do so. Scope & 
Criteria 84-85. However, the district court rejected 
the county’s proposed election schedule, noting that 
it “would have the effect of postponing a full and 
complete remedy nearly six years from the filing of



21

this lawsuit.” Charleston County, 2003 WL 23525360, 
at *3 (D.S.C. Aug. 14, 2003)

Indeed, in the Fifth Circuit, which contains three 
of the states that have drawn the most objections, 
precedent dictates that “district courts should not 
enjoin state or municipal elections if there is ‘other 
corrective relief [that] will be available at a later date 
in the ordinary course of litigation,’ ” such as a special 
election. Williams v. City o f Dallas, 734 F.Supp. 1317, 
1367 (N.D. Tex. 1990) (finding liability and ordering 
special election after having denied preliminary 
injunction) (quoting Chisom v. Roemer, 853 F.2d 1186 
(5th Cir. 1988)). But that leaves the results of a 
discriminatory election in place while the case is 
litigated and allows its effects to linger afterwards. As 
Congress heard, a candidate elected under discrimi­
natory conditions still “enjoys an advantage” as the 
incumbent entering a special election. Evidence of 
Continued Need 97.

Courts’ reluctance to grant preliminary injunc­
tions in voting cases has resulted in numerous illegal 
elections. Minority voters in Texas initiated a Section 
2 action challenging the state’s congressional redis­
tricting plan in 2003 and prevailed in 2006, but the 
2004 congressional elections were held using a map 
that this Court recognized “bears the mark of inten­
tional discrimination [against Latino voters] that 
could give rise to an equal protection violation,” 
LULAC, 548 U.S. at 440. In Attala County, Mississip­
pi, black voters were denied a preliminary injunction 
and endured elections under a discriminatory map



22

over five years of litigation before the Fifth Circuit 
rendered judgment in their favor, noting that the 
county’s evidence had failed to “explain why blacks 
alone [had] been essentially shut out of the political 
processes in the county.” Teague v. Attala County, 
92 F.3d 283, 294-295 (5th Cir. 1996) (emphasis 
in original); see Teague v. Attala County, Civ. 
A.191CV209DD, 1995 WL 1945387 (Mar. 1, 1995) 
(order denying preliminary injunction). In Cordele, 
Georgia in 1987, black voters were denied a prelimi­
nary injunction notwithstanding significant evidence 
of discriminatory effect and expert historical evidence 
that the city commission’s at-large system was insti­
tuted with discriminatory intent. Evidence o f Con­
tinued Need 674-75. Elections continued during the 
two-year litigation, which ended in a consent decree 
instituting four-single member-districts -  two of 
which were majority-black -  in place of the at-large 
system that had elected only one African-American 
commissioner in history. Id. Cordele’s example 
demonstrates that the theoretical availability of 
preliminary relief is, in many cases, fool’s gold.

The two years from complaint to resolution in 
Cordele was quick for a Section 2 suit. Because “2 to 5 
years is a rough average,” multiple illegal elections 
could occur during the pendency of ultimately suc­
cessful Section 2 litigation. History, Scope, & Purpose 
101. Moreover, a challenged practice may remain in 
effect for several election cycles before generating 
“the evidence [necessary] to persuade the court that 
the challenged election mechanism is dilutive.” Id.



23

By contrast, Section 5 enables prompt responses 
when time is of the essence. For example, in Symm v. 
United States, 439 U.S. 1105 (1979), this Court up­
held that the students at historically-black Prairie 
View A&M University had the right to register and 
vote in Waller County. S. Rep. No. 109-295, at 334. In 
2004, the white district attorney threatened Prairie 
View students with prosecution for illegal voting if 
they voted in an election in which a fellow student 
was running for a seat on the county commissioner’s 
court. Id. The district attorney backed down after the 
students sued; however, at the last minute, the coun­
ty governing body reduced the availability of early 
voting at the polling place near Prairie View A&M -  
an important change because the primary election 
was scheduled during the students’ spring break. Id. 
The NAACP filed a Section 5 enforcement action to 
enjoin the county from implementing this change 
without preclearance, and county officials abandoned 
the change. Id.

When Section 2 operates in concert with Section 
5, covered jurisdictions can work with the federal 
government and minority voters to implement new, 
non-discriminatory practices in a timely manner. For 
example, in September 2003, minority voters in 
Tangipahoa Parish, Louisiana brought a Section 2 
suit challenging that year’s redistricting plan for 
failing to reflect black voting strength. See Tangipa­
hoa Citizens for Better Government v. Parish of 
Tangipahoa, No. Civ. A.03-2710, 2004 WL 1638106, at 
*1 (E.D. La. July 19, 2004). By November 2003, the



24

parish had submitted and been denied preclearance 
for both its original and a revised map. Id. Upon 
receiving two objection letters, the parish designed an 
amended plan to address the Attorney General’s 
concerns and held three public hearings on the new 
plan. Id. The amended plan was precleared in Janu­
ary 2004. Id. The parish held special elections under 
the precleared plan in March, a mere seven months 
after plaintiffs’ filed their Section 2 complaint, and 
the plaintiffs’ did not oppose defendants’ motion to 
dismiss the Section 2 action as moot. Id. at *1-2. 
Section 5 prevented the implementation of the objec­
tionable plan and timely protected against the conse­
quences of an illegal election.

2. The High Cost of Section 2 Litiga­
tion Makes Case-by-Case Enforce­
ment of the Voting Rights Act 
Impracticable and More Burden­
some for Covered Jurisdictions.

Congress considered evidence that neither minor­
ity voters nor the “very small” voting rights bar can 
afford the “huge amounts of resources” necessary to 
prosecute the volume of additional Section 2 cases 
that would arise in the absence of Section 5 preclear­
ance. Continuing Need 15. Section 2 cases regularly 
require minority voters and their lawyers to risk six- 
and seven-figure expenditures for expert witness 
fees and deposition costs for claims that promise no 
damage awards. Impact and Effectiveness 42. These 
costs have only grown as the complexity of Section 2



25

litigation has increased. Testifying before the House, 
former DOJ voting section chief J. Gerald Hebert 
“estimate[d] that the cost . . .  to bring a vote dilution 
case through trial and appeal, runs close to a half a 
million dollars.” Fannie Lou Hamer, Rosa Parks, And 
Coretta Scott King Voting Rights Act Reauthorization 
And Amendments Act O f 2006 (Part I): Hearing 
Before the Subcomm. on the Constitution o f the H. 
Comm, on the Judiciary, 109th Cong. 65 (2006). Mr. 
Hebert’s estimate is a conservative one -  especially 
considering that taxpayers are not only responsible 
for the costs of defending jurisdictions in Section 2 
litigation, but for paying fee awards to plaintiffs as 
well. In Charleston County, the court awarded Plain­
tiffs’ counsel $712,027.71 in fees and costs after four 
and half years of litigation, inclusive of nearly 1800 
hours from three attorneys — but exclusive of the fees 
and costs accrued by DOJ attorneys prosecuting the 
parallel action for the United States. See Order at 11, 
Moultrie v. Charleston County, No. 2:01-cv-00562- 
PMD (D.S.C. Aug. 8, 2005). The cost of the county’s 
defense, which relied on more than double the num­
ber of attorneys, id. at 10, was upwards of $2 million. 
Scope & Criteria 85.

In a recent successful challenge to the State of 
Texas’ redistricting plans, plaintiffs expended fees 
and costs in the amount of $2,096,397.36 -  inclusive 
of fees for 4461.38 hours for eight attorneys and a 
paralegal; expert witness fees of $186,966.47; and



26

out-of-pocket costs of $101,614.39.4 * & If the state’s costs 
of defending the suit approach plaintiffs’, Texas 
taxpayers may be on the hook for more than $4 
million.0

By comparison, preclearance submissions are- a 
bargain. Policy Perspectives 313. 'To submit the

4 Plaintiffs’ Mot. for Interim Attorneys’ Fees and Costs at 
18-21, Perez v. State of Texas, No. 11-CA-360-OLG-JES-XR (W.D. 
Tex. June 19, 2012).

Attorney fee awards for Section 2 litigation are not 
windfalls. Continuing Need 15 (“And let me tell you, from having 
litigated the cases and having litigated the attorneys’ fees issues 
after the cases, this is not a way of getting rich. It is not even a 
way of making a living.”). More accurately they represent long 
overdue pay for years of work and reimbursement for dearly 
paid expert witness fees and costs. See, e.g., Mississippi State 
Chapter Operation PUSH v. Mahus, 788 F.Supp. 1406, 1407, 
1414, 1423-24 (N.D. Miss 1992) (prevailing party recovered 
$145,149 in fees and $23,728 in costs more than seven years 
after litigation initiated, reduced from requests for $933,633 in 
fees and $92,264 in costs); Major v. Treen, 700 F.Supp. 1422, 
1453 (E.D. La. 1988) (prevailing party recovered $335,864 and 
$28,288 in costs five years after a favorable judgment); Harper v. 
City of Chicago Heights, Nos. 87 C 5112, 88 C 9800, 2002 WL 
31010819, at *3 (N.D. 111. Sept. 6, 2002) (awarding $385,661.84 
in fees after a decade of litigation). Plaintiffs and counsel who 
bring claims risk partial or total non-recovery, see History, Scope,
& Purpose 92 (“although there is some attorney fees involved, 
you can never get back the money you put into Section 2 cases”); 
see, e.g., Dillard v. City of Greensboro, 213 F.3d 1347, 1354 (11th 
Cir. 2000) (reducing fee award for “700 hours of lawyer time for 
nearly ten years of litigation” to $61,969, less than a quarter of 
the $253,530 plaintiff’s counsel requested, because even though 
plaintiffs prevailed, the district court did not agree entirely with 
their proposed plan), and also risk the possibility that costs may 
be assessed against them, even where plaintiff’s case has merit.



27

paperwork for a major election-law change can cost a 
local government $1,000 to more than $5,000, and for 
a minor one, $500 to $1,000. . . Peter Hardin, 
Bailouts from US Voting Laws: State Localities Win 
Relief from Having to Get Federal Clearance for Each 
Change in Election Laws, Rich. Times Dispatch, Mar. 
16, 2006, at B-l; see Evidence o f Continued Need 2683 
(estimating average cost of submissions at $500). 
Moreover, many covered jurisdictions understand 
preclearance to be an efficient, cost-effective, and 
cooperative process that offers insurance against 
costly litigation. See Policy Perspectives 13, 312-14 
(testimony of Donald Wright, Gen. Counsel, North 
Carolina State Board of Elections); see generally Brief 
for New York, et al., as Amici Curiae in Support of 
Respondent.

Indeed, while Petitioners make much of the 
“federalism costs” of Section 5, they fail to consider 
the costs to covered jurisdictions of the alternative: 
case-by-case litigation of Section 2 claims. There can 
be no serious dispute that the Section 5 preclearance 
process is a far more efficient and less costly way to 
resolve potential disputes than full-scale litigation in 
federal courts. The fees and costs incurred by covered 
jurisdictions in one significant litigation would pay 
for several hundred, if not more than a thousand, 
preclearance applications.



28

3. The Lack of Experienced Voting 
Rights Attorneys Makes Enforce­
ment by Section 2 Alone Impracti­
cable.

Congress considered evidence that there is only 
“a very small bar of people who do Section 2 litigation 
and who have the expertise to do it.” Continuing Need 
15. The costs and risks described above make Section 
2 litigation generally “undesirable.” Order at 11, 
Moultrie, No. 2:01-ev-00562-PMD (noting that voting 
rights cases are generally undesirable due to their 
controversial nature and risk of non-recovery). As few 
attorneys make themselves available for these cases, 
minority voters are often left without anyone to bring 
their claims. The unavailability of experienced voting 
rights attorneys and of sufficient financial resources 
is even more acute for minority voters in rural com­
munities and for claims against local governments. 
History, Scope, & Purpose 84 (“Voters in these com­
munities do not have access to the means to bring 
[Section 2] litigation”); Continuing Need 15 (“When 
you get down to the local level, the national organiza­
tions often are not involved, they are not aware of 
what is going on.”); Evidence of Continued Need 1620 
(noting local communities’ “limited access to the 
expertise and resources of the handful of organiza­
tions and attorneys with VRA experience”). For 
example, since 1995 only two attorneys in Mississip­
pi, Ellis Turnage and Robert McDuff, have brought 
Section 2 cases resulting in reported decisions. 
See Ellen Katz & The Voting Rights Initiative, VRI



29

Database Master List (2006), http://sitemaker.mmch. 
edu/votingrights/files/masterlist.xls (Katz Database). 
“The legal resources did not exist in Mississippi in the 
past forty years to bring a lawsuit in lieu of every one 
of the 169 objections that have been issued, and they 
will not exist in the future.” Modern Enforcement 149.

Indeed, many Section 2 cases would not be possi­
ble without the assistance of a small group of nation­
al civil rights law firms. In South Dakota, Native 
American voters have had difficulty finding members 
of the local bar who are willing to represent them in 
Section 2 actions without the resources and expertise 
of the ACLU. See Bone Shirt v. Hazeltine, Civ. 01- 
3032-KES, 2006 WL 1788307, at *3 (D.S.D. June 22, 
2006). Resources of these organizations are limited, 
however, and the scope of their work is national. 
Continuing Need 15; Evidence of Continued Need 
1620. In fact, two of the major firms, the NAACP 
Legal Defense and Education Fund and the Lawyers’ 
Committee for Civil Rights Under Law have only four 
and five lawyers, respectively, dedicated to their 
respective voting rights practices.6 The voting rights 
bar and minority plaintiffs are simply not equipped 
with the money or personnel to take on significantly 
more Section 2 litigation. Continuing Need 15. Con­
gress accordingly recognized that “Section 2 would be 
ineffective to protect the rights of minority voters,

6 See "Our Staff,” http://www.naacpldf.org/staff; “About us,” 
http://www.lawyerscommittee.org/about?id=0002.

http://sitemaker.mmch
http://www.naacpldf.org/staff
http://www.lawyerscommittee.org/about?id=0002


30

especially in light of the increased activity under 
Section!] 5 . . . over the last 25 years.” H.R. Rep. No. 
109-478 at 57.

C. Only Section 5 Preclearance Can Keep 
Up With The Volume Of Discrimination 
That Takes Place At The Local Level.

Section 5 preclearance continues to be necessary 
because most illegal practices occur at the local level, 
where they receive the least scrutiny -  and where 
national organizations focused on “impact” litigation 
are least likely to offer assistance. Indeed, local 
governments have drawn the overwhelming majority 
of Section 5 objections. See Michael J. Pitts, Let’s Not 
Call the Whole Thing Off Just Yet: A Response to 
Samuel Issacharoff’s Suggestion to Scuttle Section 5 
o f the Voting Rights Act, 84 N eb. L. Rev. 605, 612-13 
(2005) (observing that 37 of 40 Section 5 objections 
from 2000 to 2005 pertained to local voting changes); 
see also Evidence o f Continued Need 1505 (“[I]t is 
important to note first that the great majority of 
Section 5 objections have affected local govern­
ments.”). Congress considered evidence that the 
continued need for Section 5 is most evident on the 
local level, where proposed changes receive the least 
scrutiny and Section 2 litigation is rarely a practical 
option. See Understanding the Benefits and Costs of 
Section 5 Pre-clearance: Hearing Before the S. Comm, 
on the Judiciary, 109th Cong. 11-12 (2006) (.Benefits 
and Costs).



31

Section 5 preclearance has brought to light and 
corrected acts of voting discrimination that would 
have otherwise gone unnoticed and unchallenged. 
Evidence o f Continued Need 1623-24 (listing instanc­
es in which minority voters learned of discriminatory 
changes due only to Section 5). Moved polling places 
present the most obvious example. In 1994, the St. 
Landry Parish Police Jury moved a polling place from 
a black neighborhood to a location preferred by white 
voters, after a white alderman told the police jury 
that whites were uncomfortable walking into a black 
neighborhood to vote. Evidence o f Continued Need 
1623. The police jury moved the polling place 
“[wjithout holding a public hearing, seeking any 
further public input, or advertising the change in any 
way.” Id. The move did not receive scrutiny until DOJ 
officials reviewed the preclearance submission and 
subsequently informed leaders in the black communi­
ty, who “expressed vehement opposition” because the 
new polling place “had been the site of historical 
racial discrimination and many African-American 
citizens did not feel welcome there.” Id. The Attorney 
General objected to the change. Id.

“In situations such as this, Section 2 litigation, 
which is very expensive, complex, and time con sum - 
ing, is no substitute for Section 5 preclearance.” Id. 
Moreover, in the case of a moved polling place, pre­
ventative litigation could be impossible because 
voters may not even notice a polling place has moved 
until “[t]he abstract right to vote . . . becomes a 
reality at the polling place on election day.” Perkins v.



32

Matthews, 400 U.S. 379, 387 (1971). The scale of 
review necessary to ensure that such changes are not 
discriminatory is enormous. Between 2000 and 2009, 
the DOJ reviewed 31,522 changes to polling places.' 
In fact, between 2000 and 2009, DOJ records show 
that covered jurisdictions submitted 170,223 pro­
posed changes, the overwhelming majority of them 
local. Id. There can be no doubt that absent preclear­
ance, no more than a tiny fraction of these proposed 
changes would receive any review at all. Only Section 
5 preclearance can make manageable the otherwise 
unmanageable task of spotting and investigating 
discrimination in covered jurisdictions.

II. THE DETERRENT EFFECT OF SECTION 
5 CANNOT BE MINIMIZED OR IGNORED.

“[T]he existence of Section 5 itself functions as a 
deterrent to both retrogression and broader forms of 
voting discrimination in the covered jurisdictions.” An 
Introduction to the Expiring Provisions o f the Voting 
Rights Act and Legal Issues Related to Reauthoriza­
tion: Hearing Before the S. Comm, on the Judiciary, 
109th Cong. 160 (2006) (Introduction to the Expiring 
Provisions); see Modern Enforcement 8, 25. In addi­
tion to giving minority voters the burden of proof and 
expense, Section 2 litigation can only confront dis­
crimination on a piecemeal basis and only after the

7 Department of Justice, Section 5 Changes by Type and 
Year, http://www.justice.gov/crt/about/vot/sec_5/changes.php.

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


33

challenged practice has taken effect. Preclearance 
Standards 4-5. By shifting those burdens to covered 
jurisdictions and ensuring all proposed changes 
receive careful review before they take effect, Section 
5 performs a deterrence function that Section 2 
cannot.

Petitioner dismisses Congress’ finding that 
Section 5 deters covered jurisdictions from enacting 
discriminatory laws as “supposition and conjecture” 
that cannot justify its reauthorization. (Pet. Br. 39 
(quotation marks omitted).) Petitioner is wrong: 
Congress’ finding is based on substantial evidence in 
the legislative record, including proposed voting 
changes withdrawn in response to “more information 
request” letters (“MIRs”) issued by the DOJ and 
statements of witnesses testifying to Section 5’s 
deterrent effect at both the state and local level.

A. Substantial Evidence Supports Con­
gress’ Finding That Section 5 Deters 
Covered Jurisdictions From Enacting 
Discriminatory Practices.

Congress considered ample evidence that pre­
clearance has deterred numerous VRA violations not 
only through objection letters, but also MIRs and the 
submission process itself. Petitioner’s focus on the 
number of objections “underestimates the critical role 
that the DOJ [plays] in directing jurisdictions to 
comply” with the VRA by issuing MIRs to evaluate 
the potential retrogressive effect of proposed changes.



34

Evidence o f Continued Need 2541; Impact and Effec­
tiveness 64-65 (MIRs deterred 605% more changes 
than objections between 1999 and 2005, and recent 
trends in the number of objections and MIRs “sug- 
gest[ ] that MIRs are providing Section 5 with strong 
deterrent effect that is lost by examining only objec­
tions”). An MIR “represents a DOJ signal that the 
voting change might be found retrogressive (and 
denied preclearance) unless the jurisdiction allays the 
DOJ’s concerns.” Nathaniel Persily, The Promise and 
Pitfalls o f the New Voting Rights Act, 117 Yale L. J. 
174, 200 (2007). Further, a jurisdiction’s decision to 
withdraw a proposed change in response to an MIR 
“is frequently a tacit admission of one or more pro­
posed discriminatory changes,” Evidence o f Continued 
Need 178. For example, withdrawals in Texas, “in- 
clude[d] at least fifty-four instances in which the 
State eliminated discriminatory voting changes after 
it became evident they would not be precleared by the 
DOJ.” Texas Report 3; see, e.g., Evidence of Continu­
ing Need 1625 (concluding that “the DOJ has de­
terred and/or effectively blocked additional dis­
criminatory voting changes in Louisiana” by issuing 
MIRs and that, “but for the prophylactic scrutiny of 
the Section 5 preclearance process, white officials 
would have successfully shut African-American 
citizens out of decisions with substantial impact on 
voters”).

Section 2 litigation has no effective counterpart 
to MIRs. Section 2 places no obligations on jurisdic­
tions until after a proposed change has taken effect



35

and a complaint has been filed. While jurisdictions 
have to comply with DOJ requests to receive pre­
clearance, Section 2 litigation rewards recalcitrance 
by leaving in place a discriminatory practice until 
minority voters can spot a violation and gather 
enough evidence to convince a court to enjoin it. 
Policy Perspectives 314; Preclearance Standards 4-5. 
Far from an effective deterrent, an enforcement 
scheme relying solely on Section 2 “would essentially 
create a perverse incentive to pass illegal plans with 
no immediate recourse.” Preclearance Standards 4-5.

Moreover, without preclearance, most discrimina­
tory changes would go unreviewed and thus unchal­
lenged. The number of changes submitted for 
preclearance has increased from roughly 35,000 
between 1965 and 1981 to 387,673 between 1982 and 
July 2005. Evidence o f Continued Need 2540. Section 
5 dramatically increases the likelihood that discrimi­
natory changes will be caught by sending each sub­
mission to a department that “has built a tradition of 
excellence and meticulousness in its Section 5 review 
process,” which makes covered jurisdictions “think 
long and hard before passing laws with discriminato­
ry impact or purpose.” Impact and Effectiveness 66 
(statement of Joseph Rich, former chief, DOJ Voting 
Section). As a result, the submission process itself 
acts as a deterrent, ensuring that all proposed chang­
es receive meaningful review, Modern Enforcement 8, 
and exposure to public scrutiny -  “the best of disin­
fectants . . . the most efficient policemen.” Louis 
Brandeis, Other People’s Money 62 (1933). If Section



36

2 litigation were the only available remedy, minority 
voters would bear sole responsibility for costly fact­
gathering on thousands of proposed changes annually 
to determine their impact. Impact and Effectiveness 
42.

Section 2 casts a lesser deterrent shadow than 
other private rights of action because, as discussed 
above, the costs of Section 2 litigation are great; the 
number of practitioners available to pursue claims is 
miniscule; and the number of voting changes makes it 
unlikely that any one change will be challenged. 
Without preclearance, offending jurisdictions are 
more likely to discriminate, knowing that they are 
less likely to get caught and any discriminatory 
changes will remain in effect until voters successfully 
prosecute a Section 2 suit, which may take years. See 
id. at 43-44.

But even with the submission process and MIRs, 
DOJ objected to nearly three times the number of 
changes since the 1982 reauthorization (2,282 from 
1982 through mid-2005) than between 1965 and 1981 
(815 from 1965 to 1981). Congress likewise found that 
the absolute number of objections had not declined 
since the 1982 reauthorization. Evidence o f Continued 
Need 172; see H.R. Rep. No. 109-478, at 21. Each 
objection represents a violation that may affect as few 
as several hundred voters to as many as several 
hundred thousand. Continuing Need 58-59 (“Section 5 
objections have functioned to aid small as well as 
"large scale elections, shielding as few as 208 and as 
many as 215,406 voters with a single objection.”).



37

Based on such evidence, not “supposition and 
conjecture,” Congress reasonably found that “[Section 
5’s] strength lies not only in the number of discrimi­
natory voting changes it has thwarted, but . . . also 
[in] the submissions that have been withdrawn from 
consideration [and in] the submissions that have been 
altered by jurisdictions in order to comply with the 
[VRA].” H.R. Rep. No. 109-478, at 36.

B. Section 5’s Deterrent Effect Is Critical 
At The Local Level Where Voters Are 
Most Vulnerable To Discrimination And 
Have The Least Access To The Re­
sources To Bring Section 2 Suits.

Section 5’s deterrent effect is most pronounced at 
the local level. Benefits and Costs 11-12. Although 
Petitioner largely ignores state and local voting 
dynamics, Section 5 represents perhaps the only line 
of defense minority voters have against local-level 
discrimination that escapes the scrutiny of the media 
and would otherwise require prohibitively expensive 
Section 2 litigation to challenge. Continuing Need 15; 
Evidence o f Continued Need 1618-20.

Further examples of Section 5’s deterrent effect 
on proposed local-level changes are found throughout 
the covered jurisdictions. In 2002, local officials in 
Fredericksburg, Virginia scrapped a proposal to 
eliminate the sole majority-black district after the 
city attorney explained the proposal would violate the 
VRA. Evidence o f Continuing Need 362. Section 5’s



38

deterrent effect is visible throughout covered jurisdic­
tions. See, e.g., id. at 1729 (noting withdrawal of 
submission to modify election system put in place 
after Section 2 litigation in Moore v. Beaufort County, 
936 F.2d 159 (4th Cir. 1991)); Legislative Options 111 
(noting Monterey County, California’s withdrawal of 
proposed polling place reductions after DOJ voiced 
concerns over long travel distances from minority 
neighborhoods to proposed sites); see also Pitts, 
supra, 84 N eb. L. Rev. 605, at 613-14 (“Having looked 
at literally hundreds of redistrictings submitted to 
the Attorney General, I can attest to the fact that the 
documents provided by local officials -  whether they 
be meeting minutes or descriptions of redistricting 
criteria -  amply demonstrate that local officials and 
their demographers are acutely cognizant of the 
standards for approval and typically try to steer very 
clear of anything that would raise concerns with the 
Attorney General.”).

Section 5 also provides an important incentive for 
officials to include minority voters and their repre­
sentatives in contemplated changes that may have an 
impact on minority voting strength. See History, 
Scope, & Purpose 3200-01; Pamela S. Karlan, Section 
5 Squared: Congressional Power To Extend and 
Amend the Voting Rights Act, 44 Hous. L. Rev. 1, 24 
(2007) (noting that Section 5 “increases the minority 
community’s . . . leverage in demanding accommoda­
tion of minority, concerns”). For example, when the 
city of Rocky Mount, North Carolina annexed pre­
dominantly white neighborhoods nearby but refused



39

to annex the traditionally African-American commu­
nity of Battleboro, Battleboro residents used the 
prospect of a Section 5 objection to preempt this 
discriminatory policy and gain the benefits of munici­
pal services and the ability to vote in local elections. 
See History, Scope, & Purpose 85.

Additionally, Congress heard extensive testimony 
confirming that Section 5 operates “under the radar 
screen [in ways] that may not appear easily in statis­
tics.” Introduction to Expiring Provisions 17 (testimo­
ny of Theodore Shaw); Impact and Effectiveness 66 
(statement of Joseph Rich) (referring to “careful 
consideration of [the] discriminatory impact of a 
voting change during the legislative process, and 
minority elected officials reminding white officials of 
the need for [DOJ] review of laws under considera­
tion”); Continuing Need 31 (“consultant who has had 
a role in drawing maps and the process,” testified 
that “section 5 looms seriously over political cartog­
raphers and decision makers when it comes to 
plans.”). Accordingly, Congress reasonably found, on 
evidence of the sort discussed herein and throughout 
the 15,000-page legislative record -  that “the exist­
ence of Section 5 deterred covered jurisdictions from 
even attempting to enact discriminatory voting 
changes.” H.R. Rep. No. 109-478, at 24; see id. (con­
cluding that “the number of voting changes that have 
never gone forward as a result of Section 5” is “[a]s 
important as the number of objections that have been 
interposed to protect minority voters against discrim­
inatory changes”). Section 5 “ensures that such voting



40

changes do not discriminate against minority voters, 
and has been an effective shield against new efforts 
employed by covered jurisdictions”; and Section 5 is a 
“vital prophylactic tool[].” H.R. Rep. No. 109-478, at 
21 (internal footnote omitted).

-------------- 4 --------------

CONCLUSION

For the foregoing reasons, the judgment of the 
court below should be affirmed.

Respectfully submitted,
Kieran R  R inggenberg 

Counsel o f Record 
Perry M. Grossman 

M axwell V. Pritt
Devon T. Hanley Cook 

Shira R. A. L iu 
W ill P. R iffelmacher 

Boies, Schiller & F lexner LLP 
1999 Harrison Street, Suite 900 

Oakland, California 94612 
(510) 874-1000 

kringgenberg@b sfllp. com
Counsel for Amici Curiae



A1

APPENDIX A
Listing of Amici Curiae

Joaquin Avila is Executive Director of the National 
Voting Rights Advocacy Institute and Distinguished 
Practitioner in Residence at the Seattle University, 
School of Law, and a former President-General Coun­
sel of MALDEF. Professor Avila has 39 years of expe­
rience prosecuting actions under the VRA, including 
Lopez v. Monterey County, 519 U.S. 9 (1996).

Neil Bradley is an attorney in Atlanta, Georgia and a 
former Associate Director of the ACLU Voting Rights 
Project. Mr. Bradley has 41 years of experience prose­
cuting actions under the VRA, including Lucas v. 
Townsend, 486 U.S. 1301 (1988).

Julius Chambers is an attorney in Charlotte, North 
Carolina and a former director-counsel of the NAACP 
Legal Defense Fund. He has argued numerous cases 
before this Court, including Thornburg v. Gingles, 
478 U.S. 30 (1986).

U.W. Clemon is an attorney in Birmingham, Alabama 
and a former member of the Alabama State Senate. 
Mr. Clemon was Chief Judge of the United States 
District Court for the Northern District of Alabama 
for 29 years before his retirement in 2009.

Armand Derfner is an attorney in Charleston, South 
Carolina. Mr. Derfner has nearly 50 years of experi­
ence prosecuting actions under the VRA, including 
Allen v. State Board o f Elections, 393 U.S. 544 (1969), 
and United States v. Charleston County, 316 F. Supp.



A2

2d 268, 272 (D.S.C. 2003), aff’d 365 F.3d 341 (4th Cir. 
2004), cert, denied, 543 U.S. 999 (2004).

Jose Garza is an attorney in San Antonio, Texas and 
former Program Director for MALDEF. He has been 
prosecuting actions under the VRA for 30 years, 
including Perez v. Perry, 132 S. Ct. 934 (2012).

Fred Gray is an attorney in Tuskegee, Alabama. Mr. 
Gray has been prosecuting civil rights and voting 
rights cases since before the enactment of the VRA, 
including Gomillion v. Lightfoot, 364 U.S. 339 (1960).

Robert McDuff is an attorney in Jackson, Mississippi. 
Mr. McDuff has nearly 30 years of experience prose­
cuting actions under the VRA, and has argued sever­
al cases before this Court, including Clark v. Roemer, 
500 U.S. 646 (1991).

Rolando Rios is an attorney in San Antonio, Texas 
and former General Counsel for the Southwest Voter 
Registration and Education Project. Mr. Rios has 35 
years of experience prosecuting actions under the 
VRA, including LULAC v. Perry, 126 S. Ct. 2594 
(2006).

Robert Rubin is an attorney in San Francisco, Cali­
fornia and the former Legal Director of the Lawyers’ 
Committee for Civil Rights Under Law of the San 
Francisco Bay Area. Mr. Rubin has more than 20 
years of experience prosecuting actions under the 
VRA, including Lopez v. Monterey County, 525 U.S. 
266 (1999).



A3

Edward Still is an attorney in Birmingham, Alabama. 
Mr. Still has over 40 years of experience prosecuting 
actions under the VRA, including City o f Mobile v. 
Bolden, 446 U.S. 55 (1980), and Dillard v. Chilton 
County Comm’n, 447 F. Supp. 2d 1273 (M.D. Ala. 
2006).

Ellis Turnage is an attorney in Cleveland, Mississip­
pi. Mr. Turnage has 30 years of experience prosecut­
ing actions under the VRA, including Teague v. Attala 
County, 92 F.3d 283 (5th Cir. 1996) and Citizens for 
Good Gov’t v. City o f Quitman, 148 F.3d 472 (5th Cir. 
1998).

Ronald Wilson is an attorney in New Orleans, Louisi­
ana. Mr. Wilson has nearly 30 years of experience 
prosecuting actions under the VRA, including Chisom 
v. Roemer, 111 S. Ct. 2334 (1991) and Tangipahoa 
Citizens for Better Government v. Parish o f Tangipa­
hoa, No. Civ.A.03-2710, 2004 WL 1638106 (E.D. La. 
July 19, 2004).





23 11 Douglas Street 
Omaha, Nebraska 68102-1214

E-Mail Address: 
cpc@cocklelaw .com

1-800-225-6964 
(402) 342-2831 

Fax: (402) 342-4850

(Ocklh Printinĝ .
Law Brief Specialists 

Since 1923

No. 12-96

Web Site
www.cocklelaw.com

SHELBY C O U N T Y, A L A B A M A ,
Petitioner,

v.
ERIC H. HOLDER, JR., A T TO R N E Y GENERAL, ET AL ., 

Respondents.

AFFIDAVIT OF SERVICE

I, Patricia Billotte, o f  lawful age, being duly sworn, upon my oath state that I did, on the 1st day o f  February, 2013, send out 
from Omaha, NE 5 package(s) containing 3 copies o f  the BRIEF OF JOAQUIN A V IL A , NEIL BR AD LEY, JULIUS 
CH AM BERS, U .W . CLEM O N , A R M A N D  DERFNER, JOSE G A R Z A , FRED G R A Y , ROBERT M CD UFF, ROLANDO  
RIOS, ROBERT RUBIN, E D W AR D  STILL, ELLIS TURN AGE, A N D  RONALD W ILSON AS AM ICI CURIAE IN 
SUPPORT OF RESPONDENTS in the above entitled case. All parties required to be served have been served by third-party 
commercial carrier for delivery within 3 calendar days. Packages were plainly addressed to the following:

SEE ATTACH ED

To be filed for:
KIERAN P. RINGGENBERG
Counsel o f  Record
PERRY M. G R O SSM A N
M A X W E L L  V . PRITT
DEVON T. H A N LE Y  COOK
SH1RA R. A. LIU
W ILL P. RIFFELMACHER
BOIES, SCHILLER & FLEXNER LLP
1999 Harrison Street, Suite 900
Oakland, California 94612
(51 0 )8 7 4 -1 0 0 0
kringgenberg@bsnip.com

Counsel for Amici Curiae

Subscribed and sworn to before me this 1 st day o f  February, 2 0 13.
I am duly authorized under the laws o f  the State o f  Nebraska to administer oaths.

• ~  -■  ^  ^  ^

' ANDREW COCKLE
< General Notary
i State of Nebraska
( My Commission Expires Apr 9,2014

w w *  w w
I ------------------------------- ----------

Notary Public Affiant
Ll

27563

mailto:cpc@cocklelaw.com
http://www.cocklelaw.com
mailto:kringgenberg@bsnip.com


Attorneys for Petitioner:

Bert W. Rein 
Counsel o f Record 
Wiley Rein LLP 
1776 K Street, N.W.
Washington, DC 20006
(202) 719-7000
brein@wileyrein.com
Party name: Shelby County, Alabama

Attorneys for Respondents:

Debo P. Adegbile 
Counsel o f Record
NAACP Legal Defense & Educational Fund, Inc.
99 Hudson Street, 16th Floor 
New York, NY 10013 
(212) 965-2249 
dadegbile@naacpldf.org
Party name: respondent-Intervenors Earl Cunningham, et al.

Jon M. Greenbaum 
Counsel of Record
Lawyers' Committee for Civil Rights Under Law 
1401 New York Avenue, NW 
Suite 400
Washington, DC 20005 
(202) 662-8315
jgreenbaum@lawyerscommiltee.org
Party name: Respondent-Intervenor Bobby Lee Harris

Laughlin McDonald 
Counsel of Record
American Civil Liberties Union Foundation
230 Peachtree Street NW
Atlanta, GA 30303-1504
(404)523-2721
lmcdonald@adu.org
Party name: Respondent-Intervenors Bobby Pierson, et al.

mailto:brein@wileyrein.com
mailto:dadegbile@naacpldf.org
mailto:jgreenbaum@lawyerscommiltee.org
mailto:lmcdonald@adu.org


Donald 13. Verrilli Jr.
Counsel o f Record 
Solicitor General
United States Department o f Justice 
Rm. 5614
950 Pennsylvania Avenue, N.W.
Washington, DC 20530-0001 
(202) 514-2217
SupremeCtBriefs@USDOJ.gov
Party name: Eric H. Holder, Jr., Attorney General

mailto:SupremeCtBriefs@USDOJ.gov


2 3 11 Douglas Street 
Omaha, Nebraska 68102-1214

E-Mail Address: 
cpc@cocklelaw .com

1-800-225-6964 
(402) 342-283 1 

Fax: (402) 342-4850

(q!ckle Printinĝ .
Law Brief Specialists 

Since 1923 W eb Site
www.cocklelaw.com

No. 12-96

SHELBY COUNTY, ALABAMA,
Petitioner,

v.
ERIC IT HOLDER, JR., ATTORNEY GENERAL, ET AL„

Respondents.

CERTIFICATE OF COMPLIANCE

As required by Supreme Court Rule 33.1(h), I certify that the BRIEF OF JOAQUIN 

AVILA, NEIL BRADLEY, JULIUS CHAMBERS, U.W. CLEMON, ARMAND DERFNER, 

JOSE GARZA, FRED GRAY, ROBERT MCDUFF, ROLANDO RIOS, ROBERT RUBIN, 

EDWARD STILL, ELLIS TURNAGE, AND RONALD WILSON AS AMICI CURIAE IN 

SUPPORT OF RESPONDENTS in the above entitled case complies with the typeface requirement 

of Supreme Court Rule 33.1(b), being prepared in New Century Schoolbook 12 point for the text 

and 10 point for the footnotes, and this brief contains 8999 words, excluding the parts that are 
exempted by Supreme Court Rule 33.1(d), as needed.

Subscribed and sworn to before me this 1st day o f February, 2013.
I am duly authorized under the laws o f the State o f  Nebraska to administer oaths.

ANDREW COCKLE 
General Notary 

State of Nebraska
My Commission Expires Apr 9,2014 

w w m i t  ^ Notary Public Affiant
27563

mailto:cpc@cocklelaw.com
http://www.cocklelaw.com