Shelby County v. Holder Brief Amici Curiae

    No. 12-96

In  T h e

Supreme Court of tje fHnttefc States

S h e l b y  C o u n t y , A l a b a m a ,
Petitioner,

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  

o f  t h e  U n it e d  S t a t e s , et al.,
Respondents.

On Writ of Certiorari to the 
United States Court of Appeals 

for the District of Columbia Circuit

BRIEF FOR PROFESSORS RICHARD L. 
ENGSTROM, THEODORE S. ARRINGTON, 
AND DAVID T. CANON AS AMICI CURIAE 

IN SUPPORT OF RESPONDENTS

Pe t e r  Bu s c e m i 
Counsel o f  Record  

Da v id  M . K er r  
Ba h a r  Sh a r ia t i 
M o r g a n , Le w is  & B o c k iu s  LLP 
1111 Pennsylvania Avenue, N.W. 
Washington, D.C. 20004 
(202) 739-5190 
pbuscemi@morganlewis.com
Counsel for Am ici Curiae

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

mailto:pbuscemi@morganlewis.com


TABLE OF CONTENTS
Page

TABLE OF AUTHORITIES......................................  iii
INTEREST OF THE AMICI CURIAE................  1
SUMMARY OF ARGUMENT............................... 4
ARGUMENT............................................................  5

I. CONGRESS PROPERLY CONSID­
ERED EVIDENCE OF RACIALLY 
POLARIZED VOTING IN REAUTHOR­
IZING SECTION 5......................................  5
A. That Racially Polarized Voting

Occurs Is A Fact.....................................  6
B. There Is A Link Between Racially

Polarized Voting And Government 
Discrimination Against Minority 
Voters....................................................  10

II. THE CONGRESSIONAL RECORD 
INCLUDES AMPLE EVIDENCE OF 
RACIALLY POLARIZED VOTING, 
AND IN ANY EVENT ANY ALLEGED 
SHORTCOMING IN THE LEGISLA­
TIVE RECORD DOES NOT HELP
PETITIONER...............................................  13

III. IN REAUTHORIZING SECTION 5, 
CONGRESS HAS ATTEMPTED TO 
ADDRESS DISCRIMINATORY VOTE 
DILUTION, NOT TO PROHIBIT 
RACIALLY POLARIZED VOTING.......... 24
A. Racially Polarized Voting Can Create 

An Environment Conducive to 
Minority Vote Dilution.......................... 24

(i)



11

B. Racially Polarized Voting Is A Neces­
sary Precondition For Vote Dilution
To Occur................................................... 26

C. Redistricting Can Be Used to Effect
Vote Dilution........................................... 27

IV. VOTE DILUTION DOES JUSTIFY
PRE-CLEARANCE...................................... 29
A. Vote Dilution Can Be Used As Evi­

dence To Sustain The Reauthoriza­
tion Of Section 5..................................... 29

B. The Right To Vote Involves More
Than Mere Access To Casting A 
Ballot, And Includes The Right To A 
Meaningful Vote..................................... 31

CONCLUSION........................................................ 34

TABLE OF CONTENTS—Continued
Page



Ill

TABLE OF AUTHORITIES 
CASES Page

Allen v. State Board o f Elections, 393 U.S.
544 (1969)......................................................... 24, 31

Bartlett v. Strickland, 556 U.S. 1 (2009)......... 23, 24
Benavidez v. City o f  Irving, 638 F. Supp. 2d

709 (N.D. Tex. 2009).......................................  2, 21
Blodgett v. Holden, 275 U.S. 142 (1927)......... 33
Bone Shirt v. Hazeltine, 336 F. Supp. 2d 976 

(D.S.D. 2004)....................................................  8
Cane v. Worcester County, 840 F. Supp. 1081 

(D. Md. 1994)...................................................  3
City o f Rome v. United States, 446 U.S. 156 

(1980)................................................................  30
Clark v. Calhoun County, 88 F.3d 1393 (5th 

Cir. 1996).......................................................... 2, 8
Clark v. Roemer, 111 F. Supp. 445 (M.D. La.

1990)..................................................................  9
Cofield v. City ofLaGrange, 969 F. Supp. 749 

(N.D. Ga. 1997)................................................  9
Colleton County Council v. McConnell, 201 

F. Supp. 2d 618 (D.S.C. 2002)....................... 8, 21
DeGrandy v. Wetherell, 794 F. Supp. 1078 

(N.D. Fla. 1992), affd in part and rev’d in 
part on other grounds sub nom. Johnson v. 
DeGrandy, 512 U.S. 997 (1994).................... 9

Dillard v. Baldwin County Commission, 222
F. Supp. 2d 1283 (M.D. Ala. 2002)...............  8

Ewing v. Monroe County, 740 F. Supp. 417 
(N.D. Miss. 1990)............................................. 9



IV

Fabela v. City o f Farmers, No. 10-1425, 2012 
WL 3135545 (N.D. Tex. Aug. 2, 2012)......... 21

Fairley v. Hattiesburg, No. 2:06cvl67-KS- 
MTP, 2008 WL 32872000 (S.D. Miss. Aug.
7, 2008)..............................................................  20

Fullilove v. Klutznick, 448 U.S. 448 (1980)....  14
Georgia v. Ashcroft, 539 U.S. 461 (2003)........ 4, 33
Gonzalez v. Arizona, 677 F.3d 383 (9th Cir.

2012) ..............................................................................  21
Growe v. Emison, 507 U.S. 25 (1993)..............  7
Hines v. Mayor and Town Council o f  

Ahoskie, 998 F.2d 1266 (4th Cir. 1993)....... 3
Houston v. LaFayette County, 20 F. Supp. 2d

996 (N.D. Miss. 1998).....................................  9
Jamison v. Tupelo, 471 F. Supp. 2d 706

(N.D. Miss. 2007)............................................. 20
Katzenbach v. Morgan, 384 U.S. 641 (1966)... 14
LaRoque v. Holder, 831 F. Supp. 2d 183 

(D.D.C. 2011), vacated on other grounds,
679 F.3d 905 (D.C. Cir. 2012).......................  7, 12

League o f United Latin American Citizens v.
Perry, 548 U.S. 399 (2006)............................  8, 27

Major v. Treen, 574 F. Supp. 325 (E.D. La.
1983)..................................................................  9

Mansell v. Mansell, 490 U.S. 581 (1989)......... 14
Miller v. Johnson, 515 U.S. 900 (1995)...........  24

TABLE OF AUTHORITIES—Continued
Page



V

Mobile v. Bolden, 446 U.S. 55 (1980)..............  24
National Federation o f  Independent Business

v. Sebelius, 132 S. Ct. 2566 (2012)...............  33, 34
Northwest Austin Municipal Utility District 

Number One v. Mukasey, 573 F. Supp. 2d 
221 (D.D.C. 2008), rev’d and remanded on 
other grounds, 557 U.S. 193 (2009)..............  11, 30

Rogers v. Lodge, 458 U.S. 613 (1982)..............  8, 13
Shelby County v. Holder, 811 F. Supp. 2d 

424 (D.D.C. 2011).......................................... passim

Shelby County v. Holder, 679 F.3d 848 (D.C.
Cir. 2012).................................................... 30, 32, 34

Texas v. United States, No. 11-1303, 2012 
WL 3671924 (D.D.C. Aug. 28, 2012)............  21

Thornburg v. Gingles, 478 U.S. 30 (1986)..... passim
Turner Broadcasting System, Inc. v. FCC,

520 U.S. 180 (1997)........................................  14
United States v. Brown, 494 F. Supp. 2d 440 

(S.D. Miss. 2007)..............................................  20
United States v. Charleston County Council,

316 F. Supp. 2d 268 (D.S.C. 2003)...............  20
United States v. Charleston County, 365 F.3d 

341 (4th Cir. 2004)..........................................  3
United States v. McGregor, 824 F. Supp. 2d 

1339 (M.D. Ala. 2011).....................................11, 20
Voinovich v. Quilter, 507 U.S. 146 (1993)....... 11

TABLE OF AUTHORITIES—Continued
Page



VI

TABLE OF AUTHORITIES—Continued
Page

CONSTITUTION
U.S. Const, amend. XIV..................................5, 30, 31
U.S. Const, amend. X V ...................................5, 30, 31

STATUTES AND LEGISLATIVE MATERIALS
Voting Rights Act of 1965, 42 U.S.C. §§ 1973

et seq.:.............................................................. passim
§ 2, 42 U.S.C. § 1973................................7, 8, 26, 32
§ 5, 42 U.S.C. § 1973c....................................passim
§ 5(b), 42 U.S.C. § 1973c(b)..........................  11

42 U.S.C. § 1983..................................................  8
Fannie Lou Hamer, Rosa Parks, and Coretta 

Scott King Voting Rights Act Reauthor­
ization and Amendments Act of 2006, Pub. 
L. No. 109-246, 120 Stat. 577 (“Reauthor­
ization and Amendments Act of 2006”) ....... 6, 31
§ Section 2 (a )...................................................  31
§ Section 2(b)(3)............................................6, 10, 22
§ Section 2(b)(4)...............................................  10

H.R. Rep. No. 109-478 (2006).......................... passim

An Introduction to the Expiring Provisions o f  
the Voting Rights Act and Legal Issues 
Relating to Reauthorization, Hearing 
Before the S. Committee on the Judiciary, 
109th Cong. (May 9, 2006) (S. Hrg. 109- 
458).................................................. .................. 25



V l l

Reauthorizing the Voting Rights Act’s 
Temporary Provisions: Policy Perspectives 
and Views From the Field, Hearing Before 
the Subcomm. on the Const., Civil Rights 
and Prop. Rights o f  the S. Comm, on 
the Judiciary, 109th Cong. (June 21, 2006)
(S. Hrg. 109-822)............................................. 6

To Examine the Impact and Effectiveness o f  
the Voting Rights Act, Hearing Before the 
Subcomm. on the Const., H. Comm, on the 
Judiciary, 109th Cong. (Oct. 18, 2005)
(Serial No. 109-70)..........................................  15

Voting Rights Act: Evidence o f Continued
Need, Hearing Before the Subcomm. on 
the Const., H. Comm, on the Judiciary,
109th Cong. (March 8, 2006) (Serial No. 
109-103).......................................................... passim

Voting Rights Act: The Continuing Need for 
Section 5, Hearing Before the Subcomm. on 
the Const., H. Comm, on the Judiciary,
109th Cong. (Oct. 25, 2005) (Serial No. 
109-75)..............................................................  12, 26

Voting Rights Act: The Continuing Need
for Section 5 Pre-Clearance, Hearing 
Before the S. Comm, on the Judiciary,
109th Cong. (May 16, 2006) (S. Hrg. 109- 
569)................................................................... passim

TABLE OF AUTHORITIES—Continued
Page



V l l l

TABLE OF AUTHORITIES—Continued
Page

OTHER AUTHORITIES
Theodore S. Arrington, Affirmative Dist­

ricting and Four Decades o f Redistrict­
ing: The Seats /Votes Relationship 1972- 
2008, Politics and Policy 38 (No. 2, 2010) 2

Theodore S. Arrington, Redistricting in the 
U.S.: A  Review o f Scholarship and Plan 
for Future Research, The Forum 8 (No.
2, Article 7, 2010)........................................  3

David Canon, Race, Redistricting, and 
Representation: The Unintended Con­
sequences o f Black-Majority Districts 
(University of Chicago Press 1999).......... 3, 28

Richard L. Engstrom, The Supreme Court 
and Equipopulous Gerrymandering: A  
Remaining Obstacle in the Quest for 
Fair and Effective Representation, 1976 
Ariz. St. L.J. 277.........................................  2

Richard L. Engstrom & John K. Wildgen, 
Pruning Thorns from the Thicket: An 
Empirical Test o f the Existence o f Racial 
Gerrymandering, 2 Legis. Stud. Q. 465 
(1977).............................................................  2

Richard L. Engstrom & Michael D. 
McDonald, Qualitative Evidence in Vote 
Dilution Litigation: Political Participa­
tion and Polarized Voting, 17 Urb. Law.
369 (Summer 1985).....................................  2



IX

TABLE OF AUTHORITIES—Continued

Lisa Handley, A  Voting Rights Analysis o f  
the Proposed Alaska State Legislative 
Plans: Measuring the Degree o f  Racial 
Bloc Voting and Determining the 
Effectiveness o f Proposed Minority Dist­
ricts, available at http://www.wkredist 
ricting.org/Files/Final-Report-of-Dr-Lisa- 
Handley.pdf..................................................

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

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

Brief for Nathaniel Persily, Stephen 
Ansolabehere, and Charles Stewart III 
as Amici Curiae on Behalf of Neither 
Party, Northwest Austin Municipal 
Utility District Number One v. Holder, 
No. 08-322, 2009 WL 526206 (U.S. Feb. 
26, 2009).......................................................

Delbert A. Taebel, Richard L. Engstrom, & 
Richard L. Cole, Alternative Electoral 
Systems as Remedies for Minority Vote 
Dilution, 11 Hamline J. Pub. L. & Pol’y 
19(1990).......................................................

23

15, 19 

12

22

Page

1

http://www.wkredist


INTEREST OF THE AM ICI CURIAE

Professors Richard L. Engstrom, Theodore S. 
Arrington, and David T. Canon are political scientists 
who have researched and written extensively on elec­
tion administration and election reform in the United 
States.1 Amici take an interest in this case because 
their research concerns race and voting in federal, 
state, and local elections. Amici believe their exper­
tise may be o f use to the Court as it considers Con­
gress’s basis for reauthorizing Section 5 of the Voting 
Rights Act (“VRA”) in 2006. Because they have 
specifically studied and analyzed evidence of racially 
polarized voting and its effects, amici can inform this 
Court about how the existence of racially polarized 
voting, which is increasing in covered jurisdictions, 
creates increased opportunities for unconstitutional 
intentional voting discrimination. Specifically, voting 
along racial lines, among other things, can interact 
with electoral schemes to dilute the minority vote 
and allow elected officials to ignore the interests of 
racial minorities without political consequence.

Doctor Engstrom was a professor of political 
science at the University of New Orleans from 1971 
to 2006 and is currently a Visiting Professor of 
Political Science and Visiting Research Fellow at the 
Center for the Study of Race, Ethnicity, and Gender 
in the Social Sciences at Duke University. He has 
conducted extensive research and is widely published 
on electoral reform and vote dilution. See, e.g., 
Delbert A. Taebel, Richard L. Engstrom, and Richard

1 All parties have given blanket consent to the filing of amicus 
briefs. No counsel for a party authored this brief in whole or in 
part and no party or counsel for a party made a monetary 
contribution intended to fund the preparation or submission of 
this brief.



L. Cole, Alternative Electoral Systems as Remedies 
for Minority Vote Dilution, 11 Hamline J. Pub. L. & 
Pol’y 19 (1990); Richard L. Engstrom & Michael 
D. McDonald, Qualitative Evidence in Vote Dilution 
Litigation: Political Participation and Polarized Voting, 
17 Urb. Law. 369, 374 (Summer 1985); Richard L. 
Engstrom & John K. Wildgen, Pruning Thorns from 
the Thicket: An Empirical Test o f  the Existence o f  
Racial Gerrymandering, 2 Legis. Stud. Q. 465, 465- 
66 (1977); Richard L. Engstrom, The Supreme Court 
and Equipopulous Gerrymandering: A  Remaining 
Obstacle in the Quest for Fair and Effective Rep­
resentation, 1976 Ariz. St. L.J. 277, 285-86, 296. 
Courts have relied upon both his published work and 
his expert testimony on racially polarized voting and 
political redistricting. See, e.g., Thornburg v. Gingles, 
478 U.S. 30, 46 n .l l ,  53 n.20, 71 (1986) (citing three 
of Dr. Engstrom’s articles with approval); Clark v. 
Calhoun County, 88 F.3d 1393, 1397 (5th Cir. 1996) 
(“ [T]he district court’s finding that racially polarized 
voting exists [based in part on Dr. Engstrom’s 
analysis] is beyond question.”); Benavidez v. City o f 
Irving, 638 F. Supp. 2d 709, 731-32 (N.D. Tex. 2009) 
(concluding that plaintiff, through Dr. Engstrom, had 
proven the existence of racially polarized voting). 
Professor Engstrom testified before the House 
Subcommittee on the Constitution of the Committee 
on the Judiciary in 2005 when reauthorization of the 
VRA was being considered.

Doctor Arrington is a professor emeritus in the 
Department of Political Science and Public Admin­
istration at the University of North Carolina at 
Charlotte. His research concerns primarily voting 
behavior, voting systems, and redistricting, and has 
been published in many leading political science 
journals. See, e.g., Theodore S. Arrington, Affirmative

2



Districting and Four Decades o f Redistricting: The 
Seats/Votes Relationship 1972-2008, Politics and 
Policy 38 (Number 2, 2010) 223-253; Theodore S. 
Arrington, Redistricting in the U.S.: A  Review o f  
Scholarship and Plan for Future Research, The 
Forum 8 (Number 2, Article 7, 2010). Professor 
Arrington has been retained as an expert witness and 
given testimony about bloc voting, vote dilution, and 
redistricting in more than 30 cases in federal courts. 
See, e.g., United States v. Charleston Cnty., 365 F.3d 
341, 350 (4th Cir. 2004) (“ [T]he United States’ expert, 
Dr. Arrington, found an even higher overall rate of 
racially polarized voting.”); Cane v. Worcester Cnty., 
840 F. Supp. 1081, 1087 (D. Md. 1994) (“The Court 
qualified Dr. Arrington as an expert to testify on 
voting behavior, political analysis, party politics and 
racial voting patterns.”). Hines v. Mayor and Town 
Council o f Ahoskie, 998 F.2d 1266, 1273 (4th Cir. 
1993) (referring explicitly to Dr. Arrington’s test­
imony). He also testified before the Senate Judiciary 
Committee in 2006 when Congress was considering 
reauthorization of the VRA.

Doctor Canon is a professor of political science at 
the University of Wisconsin, Madison. His research 
interests are in race and representation, political 
careers, congressional reform, partisan realignments, 
and the historical analysis of Congress. His major 
research on the question of racial representation was 
published in Race, Redistricting, and Representation: 
The Unintended Consequences o f  Black-Majority 
Districts (University of Chicago Press 1999). This 
book was awarded the American Political Science 
Association’s Richard F. Fenno Prize for the best 
book published on legislative politics in 1999. 
Professor Canon is the author of approximately 35 
scholarly articles and chapters, three scholarly books,

3



4
three edited volumes, an introductory American 
politics textbook (currently in its third edition), and a 
leading reference work on congressional committees. 
He has testified as an expert in two voting rights 
cases in federal court and has served as an expert 
consultant in three other federal voting rights cases 
on issues concerning redistricting, racial representa­
tion, and retrogression under Section 5 of the VRA 
(in the remand ordered by Georgia v. Ashcroft, 539 
U.S. 461 (2003)) and racially polarized voting. He 
also testified before the Senate Subcommittee on the 
Constitution, Civil Rights, and Property Rights (of 
the Senate Judiciary Committee) during the con­
sideration of reauthorization of the VRA in 2006. 
Professor Canon’s ongoing research concerns redis­
tricting, election administration, and election reform.

SUMMARY OF ARGUMENT

The district court described the substantial evi­
dence of unconstitutional voting discrimination in the 
legislative record that justifies the 2006 reauth­
orization of Section 5. Shelby Cnty. v. Holder, 811 
F. Supp. 2d 424, 463-92 (D.D.C. 2011). This includes 
evidence that racially polarized voting exists and is 
increasing in the covered states. Id. at 487-88. In 
this brief, amici will explain the nature of racially 
polarized voting, its implications for vote discrimina­
tion, and why its persistence supports reauthoriza­
tion of Section 5 for covered jurisdictions.

Racially polarized voting exists when there is an 
empirical correlation between the race of a voter and 
the way in which the voter votes. Although racially 
polarized voting is not itself state action, there is a 
link between racially polarized voting and discrimi­
natory exclusion of minority voters from the demo­



cratic process. Specifically, racially polarized voting 
makes certain discriminatory voting practices, such 
as vote dilution, increasingly possible. Vote dilution 
occurs when the effectiveness of minority voters is 
minimized or canceled out through state action.

The significant potential for vote dilution, which 
can violate the Fourteenth and the Fifteenth Amend­
ments, provides an important ground for Congress’s 
reauthorization of the pre-clearance mechanism under 
Section 5. The VRA protects not merely the right to 
cast a ballot, but also the right to cast a vote that 
will be meaningful. Vote dilution, therefore, can 
affect an individual’s right to vote just as an absolute 
prohibition against casting a ballot would.

There is overwhelming evidence that racially 
polarized voting not only exists in covered jurisdic­
tions, but also that it is more pronounced in covered 
jurisdictions than in non-covered jurisdictions. 
Because racially polarized voting makes minority 
voters vulnerable to vote dilution, evidence of its 
prevalence in covered jurisdictions, combined with 
the documented history of discrimination in those 
areas, supports the reauthorization of Section 5.

ARGUMENT
I. CONGRESS PROPERLY CONSIDERED 

EVIDENCE OF RACIALLY POLARIZED 
VOTING IN REAUTHORIZING SECTION 5.

Based on extensive testimony and other evidence, 
Congress found that “ ft]he continued evidence of 
racially polarized voting in each of the [covered] 
jurisdictions . . . demonstrates that racial and lan­
guage minorities remain politically vulnerable, 
warranting the continued protection of the Voting 
Rights Act of 1965.” See Fannie Lou Hamer, Rosa

5



Parks, and Coretta Scott King Voting Rights Act 
Reauthorization and Amendments Act of 2006, Pub. 
L. No. 109-246, § 2(b)(3), 120 Stat. 577 (“Reauthoriza­
tion and Amendments Act of 2006”). The House 
Judiciary Committee concluded that “ [t]he breadth of 
racially polarized voting and its impact on minority 
voters represent a serious concern.” H.R. Rep. No. 
109-478, at 34 (2006). For the following reasons, 
amici agree with Congress’s understanding and con­
clusions concerning racially polarized voting in the 
covered jurisdictions and thus believe this Court 
should not overturn Congress’s carefully-considered 
and well-supported judgment to rely on this factor in 
reauthorizing Section 5.

A. That Racially Polarized Voting Occurs 
Is A Fact.

“ [RJacial polarization exists where there is a con­
sistent relationship between [the] race of the voter 
and the way in which the voter votes, . . .  or to put it 
differently, where black voters and white voters vote 
differently.” Gingles, 478 U.S. at 53 n.21 (internal 
quotation marks and citation omitted). In other 
words, racially polarized voting “occurs when voting 
blocs within the minority and white communities cast 
ballots along racial lines.” H.R. Rep. No. 109-478, at 
34.

To be clear, racially polarized voting is an observed 
correlation. It is not, as the Pacific Legal Foundation 
asserts in its amicus brief (at 9), based on the “per­
ception that members o f the same racial group . . . 
think alike.” Indeed, this Court properly rejected the 
argument that “racially polarized voting refers to 
voting patterns that are in some way caused by race, 
rather than to voting patterns that are merely corre­

6



lated with the race o f  the voter . . . Gingles, 478 
U.S. at 63; see also LaRoque v. Holder, 831 F. Supp 
2d 183, 227 (D.D.C. 2011) (“ [A] group defined by race 
can be considered a community of interest for voting 
purposes only when empirical evidence, rather than 
stereotypes, demonstrates that members of the min­
ority group vote alike.”), vacated on other grounds, 
679 F.3d 905 (D.C. Cir. 2012). Racially polarized 
voting, therefore, must be proved, not assumed or 
supposed. Growe v. Emison, 507 U.S. 25, 40-41 (1993).

As recognized by Congress (see, e.g., H.R. Rep. No. 
109-478, at 34-35), federal courts have found numer­
ous instances of racially polarized voting.2 See, e.g.,

7

2 Section 2 of the VRA is, of course, a very important part of 
the statute, and findings from Section 2 cases document the 
continued existence of racially polarized voting. Amici disagree, 
however, with Shelby County’s assertion that “Section 2 is now 
the ‘appropriate’ prophylactic remedy for any pattern of 
discrimination that Congress documented in the 2006 legislative 
record.” Pet. Br. 20. Although a full discussion of this issue is 
outside the scope of this brief, amici wish to point out a few of 
the flaws in petitioner’s argument. For one thing, Section 2 is 
not “prophylactic” at all. Section 2 only works after a dis­
criminatory practice has been put into place and has been 
challenged in court. Section 5 is far more prophylactic in its 
ability to protect minority voting rights by stopping such 
practices from going into effect through the pre-clearance 
process. In addition, as one of the amici submitting this brief 
(Prof. Canon) explained in his testimony to the Senate Judiciary 
Committee, petitioner’s argument ignores the deterrent effect of 
Section 5: “There is no doubt that the deterrent effect is real as 
documented by a recent study by Luis Fraga of the impact of 
more information requests by the Justice Department on 
discriminatory voting changes.” Reauthorizing the Voting 
Rights Act’s Temporary Provisions: Policy Perspectives and
Views from the Field, Hearing Before the Subcomm. on the 
Const., Civil Rights and Prop. Rights of the S. Comm, on the 
Judiciary, 109th Cong. 191 (June 21, 2006) (S. Hrg. 109-822)



League o f  United Latin American Citizens v. Perry, 
548 U.S. 399, 426 (2006) (“The District Court found 
‘racially polarized voting’ in south and west Texas, 
and indeed ‘throughout the State.’” (citation omit­
ted)); Gingles, 478 U.S. at 61 (“We conclude that the 
District Court’s approach, which tested data derived 
from three election years in each [North Carolina] 
district, and which revealed that blacks strongly sup­
ported black candidates, while, to the black candi­
dates’ usual detriment, whites rarely did, satisfacto­
rily addresses each facet of the proper legal stand­
ard.”); Rogers v. Lodge, 458 U.S. 613, 623 (1982) 
(“There was also overwhelming evidence of bloc vot­
ing along racial lines [in Burke County, Georgia].”); 
Clark, 88 F.3d at 1397 (“In this case, the district 
court’s finding that racially polarized voting exists [in 
Mississippi] is beyond question.”); Bone Shirt v. 
Hazeltine, 336 F. Supp. 2d 976, 1036 (D.S.D. 2004) 
(“The court concludes that substantial evidence, both 
statistical and lay, demonstrates that voting in South 
Dakota is racially polarized among whites and Indi­
ans in Districts 26 and 27.”); Dillard v. Baldwin Cnty. 
Comm’n, 222 F. Supp. 2d 1283, 1290 (M.D. Ala. 2002) 
(“Plaintiffs have shown that black citizens of Baldwin 
County still suffer from the racially polarized 
voting.”); Colleton Cnty. Council v. McConnell, 201 F. 
Supp. 2d 618, 641 (D.S.C. 2002) (“In this case the

8

(testimony of Prof. Canon). Finally, without the “ability to elect” 
retrogression standard that was restored as part of Section 5 in 
the 2006 VRA reauthorization, minority voters would have little 
recourse to protect the representational gains achieved under 
the statute. Therefore, despite petitioner’s assertion to the con­
trary (Pet. Br. 20), Congress reasonably concluded that measures 
beyond the “traditional remedies” such as 42 U.S.C. §1983 and 
Section 2 are necessary to solve the problem of ongoing voting 
discrimination in covered states.



parties have presented substantial evidence that this 
disturbing fact has seen little change in the last dec­
ade. Voting in South Carolina continues to be 
racially polarized to a very high degree, in all regions 
of the State and in both primary elections and gen­
eral elections. Statewide, black citizens generally are 
a highly politically cohesive group and whites engage 
in significant white-bloc voting. Indeed, this fact is 
not seriously in dispute.”); Houston v. LaFayette Cnty., 
20 F. Supp. 2d 996, 1002 (N.D. Miss. 1998) (finding 
racially polarized voting in LaFayette County, Mis­
sissippi); Cofield v. City o f  LaGrange, 969 F. Supp. 
749, 756 (N.D. Ga. 1997) (“The single conclusion that 
can be drawn from the expert testimony is that 
LaGrange City-Council elections exhibit racially 
polarized voting.”); DeGrandy v. Wetherell, 794 F. 
Supp. 1078, 1079 (N.D. Fla. 1992) (“The parties agree 
that racially polarized voting exists throughout 
Florida to varying degrees. The results of Florida’s 
legislative elections over the past ten years estab­
lished the presence of racially polarized voting.”), 
affd in part and rev’d in part on other grounds sub 
nom. Johnson v. DeGrandy, 512 U.S. 997 (1994); 
Clark v. Roemer, 111 F. Supp. 445, 454 (M.D. La. 
1990) (“The court would agree that there is, for 
example, evidence of strong racial polarization in 
Louisiana statewide.”); Ewing v. Monroe Cnty., 740 
F. Supp. 417, 423 (N.D. Miss. 1990) (“The court finds 
that a pattern of voting behavior in county and dis­
trict races clearly shows legally significant’ racial 
polarization among both black and white voters.”) 
Major v. Treen, 574 F. Supp. 325, 351-52 (E.D. La. 
1983) (“A  consistently high degree of electoral polari­
zation in Orleans Parish is proven through both 
statistical and anecdotal evidence. Particularly as 
enhanced by Louisiana’s majority vote requirement,

9



racial bloc voting substantially impairs the ability of 
black voters in this parish to become fully involved in 
the democratic process.” (footnote omitted)).

B. There Is A  Link Between Racially 
Polarized Voting And Government 
Discrimination Against Minority 
Voters.

Congress (and the district court) correctly 
described the link between racially polarized voting 
and discriminatory exclusion of minority voters from 
the democratic process. H.R. Rep. No. 109-478, at 34 
(“The Committee finds it significant that the ability 
of racial and language minority citizens to elect their 
candidates of choice is affected by racially polarized 
voting”); 811 F. Supp. 2d at 488 (“Shelby County fails 
to recognize the close link between racially polarized 
voting and intentional, state-sponsored minority vote 
dilution.”).

Shelby County’s statement that racially polarized 
voting is “not governmental discrimination” (Pet. Br. 
31) misses the point. As far as amici are aware, no 
one has ever claimed that racially polarized voting is 
state action or even that it is a form of discrimination 
per se. In its legislative findings, Congress did not 
list racially polarized voting as “evidence of continued 
discrimination.” See Reauthorization and Amend­
ments Act of 2006 § 2(b)(4) (emphasis added). 
Instead, as described above, Congress found that 
minorities are “politically vulnerable” because of 
racially polarized voting. Id. at § 2(b)(3).

Minorities are made vulnerable by racially polar­
ized voting because “ [t]he potential for discrimination 
in environments characterized by racially polarized 
voting is great.” H.R. Rep. No. 109-478, at 35.

10



11
Racially polarized voting makes certain discrimina­
tory voting practices possible. For example, racially 
polarized voting “enables the use of devices such as 
multi-member districts and at-large elections that 
dilute the voting strength of minority communities.” 
Northwest Austin Mun. Util. Dist. No. One v. Mukasey, 
573 F. Supp. 2d 221, 263 (D.D.C. 2008), rev’d and 
remanded on other grounds, 557 U.S. 193 (2009).

As a result, state electoral changes, some of which 
might be acceptable in other jurisdictions, can have a 
discriminatory purpose or effect when made in areas 
where racially polarized voting exists:3 “In an envi­
ronment characterized by racially polarized voting, 
politicians can predictably manipulate elections— 
either by drawing districts or setting an issue for a 
referendum—to ‘minimize or cancel out [minority 
voters’] ability to elect their preferred candidates.’” 
United States v. McGregor, 824 F. Supp. 2d 1339, 
1346 (M.D. Ala. 2011) (quoting Gingles, 478 U.S. at 
48); see also Voinovich v. Quilter, 507 U.S. 146, 153- 
54 (1993) (explaining how racially polarized voting 
creates an opportunity for state legislatures to dilute 
the voting strength of politically cohesive minority 
groups).

The district court was thus correct that “where 
minorities and non-minorities tend to prefer different 
candidates, the ability of minorities to elect their

3 See 42 U.S.C. § 1973c(b) (“Any voting qualification or pre­
requisite to voting, or standard, practice, or procedure with 
respect to voting 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, or in contravention of the guarantees 
set forth in section 1973b(f)(2) of this title, to elect their 
preferred candidates of choice denies or abridges the right to 
vote within the meaning of subsection (a) of this section.”).



12
candidates of choice can be intentionally reduced 
through the adoption of a wide variety of dilutive 
techniques, including the manipulation of district 
boundaries, the enactment of discriminatory annex­
ations, and the implementation of majority-vote 
requirements.” 811 F. Supp. 2d at 487 (citing Voting 
Rights Act: Evidence o f Continued Need, Hearing
Before the Suhcom. on the Const., H. Comm, on the 
Judiciary, 109th Cong. 1721 (March 8, 2006) (Serial 
No. 109-103, Vol. II) (appendix to statement of Wade 
Henderson). “It is only because of the continued 
existence of racially polarized voting that covered 
jurisdictions can structure their electoral processes so 
as to intentionally diminish the ability of minority 
voters to elect candidates of their choice.” 811 F. 
Supp. 2d at 488 (citing Voting Rights Act: The
Continuing Need for Section 5, Hearing Before the 
Subcomm. on the Const, o f  the H. Comm, on the 
Judiciary, 109th Cong. 59 (Oct. 25, 2005) (Serial No. 
109-75) (prepared statement of Richard Engstrom)).

As such, “ [i]f racially polarized voting disappeared 
entirely—such that there is no correlation between 
race and voting—it would be virtually impossible for 
a districting plan to be retrogressive under Section 
5.” LaRoque, 831 F. Supp. 2d at 227 (citing Nathaniel 
Persily, The Promise and Pitfalls o f the New Voting 
Rights Act, 117 Yale L.J. 174, 243 (2007)). This gives 
Section 5 “an elegant, self executing limitation. . . . 
[S]hould racially polarized voting substantially 
diminish before twenty-five years have passed—and 
with it, the ability (and motivation) for legislators to 
draw dilutive districts—Section 5 will play a dra­
matically smaller role in state voting procedures even 
before it officially expires.” 831 F. Supp. 2d at 277.



In the meantime, Congress was correct to take into 
account racially polarized voting when it reauthor­
ized Section 5. Congress observed that instead of 
decreasing, racially polarized voting is increasing in 
covered jurisdictions. See, e.g., H.R. Rep. No. 109- 
478, at 34 (“Testimony presented indicated that ‘the 
degree of racially polarized voting in the South is 
increasing, not decreasing . . . [and is] in certain ways 
re-creating the segregated system of the Old South 
. . . When racially polarized voting exists, “there 
is effectively an election ceiling.” Id. In other words, 
“ [i]n elections characterized by racially polarized 
voting, minority voters alone are powerless to elect 
their candidates. Moreover, it is rare that white 
voters will cross over to elect minority preferred can­
didates.” Id. As a result, “ [v]oting along racial lines 
allows those elected to ignore black interests without 
fear of political consequences, and without bloc voting 
the minority candidates would not lose elections 
solely because of their race.” Rogers, 458 U.S. at 623.

II. THE CONGRESSIONAL RECORD 
INCLUDES AMPLE EVIDENCE OF 
RACIALLY POLARIZED VOTING, AND IN 
ANY EVENT ANY ALLEGED SHORT­
COMING IN THE LEGISLATIVE RECORD 
DOES NOT HELP PETITIONER.

Petitioner also argues (Pet. Br. 45-49) that the 
congressional record does not contain enough evi­
dence of racially polarized voting, and thus Congress 
allegedly failed to address the issue in sufficient 
detail before reauthorizing Section 5. This argument 
fails for two reasons.

First, the Constitution does not impose on Con­
gress the obligation to create a “record” to support its

13



legislation. See Turner Broadcasting System, Inc. v. 
FCC, 520 U.S. 180, 213 (1997) (“Congress is not obli­
gated, when enacting its statutes, to make a record of 
the type that an administrative agency or court does 
to accommodate judicial review.”) (citations and quo­
tations omitted); Fullilove v. Klutznick, 448 U.S. 448, 
502 (1980) (Powell, J., concurring) (“Congress is not 
expected to act as though it were duty bound to find 
facts and make conclusions of law. The creation of 
national rules for the governance of our society 
simply does not entail the same concept of record­
making that is appropriate to a judicial or admin­
istrative proceeding. Congress has no responsibility 
to confine its vision to the facts and evidence adduced 
by particular parties.”). Indeed, this Court has held 
that “Congress is not required to build a record in the 
legislative history to defend its policy choices.” 
Mansell v. Mansell, 490 U.S. 581, 592 (1989). “It is 
enough that we be able to perceive a basis upon 
which the Congress might resolve the conflict as it 
did. . . . Any contrary conclusion would require us 
to be blind to the realities familiar to legislators.” 
Katzenbach v. Morgan, 384 U.S. 641, 653 (1966). 
This is especially true where, as here, Congress is 
extending a statute that has been debated, examined, 
and passed multiple times. See Fullilove, 448 U.S. 
at 503 (Powell, J., concurring) (“After Congress has 
legislated repeatedly in an area of national concern, 
its Members gain experience that may reduce the 
need for fresh hearings or prolonged debate when 
Congress again considered action in that area.”). 
Petitioner’s arguments regarding the congressional 
record disregard these basic principles.

Moreover, petitioner ignores the predictive aspect 
of the legislative task. The issue is not only what 
past facts were available to the Congress that re-

14



authorized the VRA, but what Congress legitimately 
could conclude would be likely to occur in the future if 
Section 5’s preclearance requirement were to be 
eliminated in the covered jurisdictions. Congress 
properly could consider, in other words, not only what 
has happened during the years that the VRA has 
regulated behavior, but also what would be likely to 
happen in the absence of that regulation. As one 
commentator has observed, " [t] he continuing need for 
existing legislation like Section 5 requires not 
documentation of existing unconstitutional conduct 
but instead speculation about the scope of such 
conduct absent the preclearance requirement.” See, 
e.g., Ellen D. Katz, Not Like the South? Regional 
Variation and Political Participation Through the 
Lens o f Section 2, in Voting Rights Act Reauthor­
ization of 2006: Perspectives of Democracy, Par­
ticipation, and Power 185 (Ana. Henderson ed., 
2007). The prophylactic nature of Section 5 and the 
evidence of its deterrent effect are sufficient. Con­
gress clearly relied on such evidence when it 
reauthorized Section 5. See, e.g., Voting Rights Act: 
The Continuing Need for Section 5 Pre-Clearance, 
Hearing Before the S. Comm, on the Judiciary, 109th 
Cong. 22-23 (May 16, 2006) (S. Hrg. 109-569) (“ [W]e 
really will see a huge impact if Section 5 is lost.”) 
(testimony of Anita Earls).

Second, contrary to petitioner’s assertions, the con­
gressional record here includes ample evidence 
regarding the persistence of racially polarized voting. 
As an initial matter, there was testimony regarding 
racially polarized voting in general and how racially 
polarized voting can create an environment in which 
an electoral result harming minority voters can be 
achieved by making changes to voting procedures or 
practices. See, e.g., To Examine the Impact and Effec­

15



tiveness o f the Voting Rights Act, Hearing Before the 
Subcomm. on the Const., H. Comm, on the Judiciary, 
109th Cong. 23 (Oct. 18, 2005) (Statement of Joe 
Rogers, former Lt. Gov. of Colo.) (Serial No. 109-70) 
(“ [I] n many areas of the country, voting continues to 
be racially polarized. . . . One consequence of racially 
polarized voting is that minority voters cannot elect 
candidates of choice or preference perhaps if it is by 
race or ethnicity. That simply may not be an option 
unless there is a majority or near majority of the 
electorate.”); id. at 28-29 (“In the last decade, federal 
court cases involving statewide redistricting plans in 
Georgia, Louisiana, South Carolina, South Dakota 
and Texas have found racially polarized voting exists 
in their states. . . . Because of racially polarized 
voting, a new voting procedure that harms minority 
voters is likely to achieve the electoral result desired 
by state actors who make the change.”); Evidence 
o f Continued Need, at 214-17, 219 (Serial No. 109- 
103, Vol. I) (emphasizing that the degree of racially 
polarized voting in the South is increasing, that 
redistricting presents the “most dramatic manifesta­
tions” of vote dilution, and that redistricting is a bat­
tle fought “at least once a decade, given the wide­
spread persistence of racially polarized voting.”); id. 
at 301-02 (testimony by expert who has conducted 
studies since 2000 census confirming racially polar­
ized voting); id. at 356-57 (summary of testimony 
on existence of racially polarized voting); id. at 2415- 
50 (including an “Assessment of Racially Polarized 
Voting For and Against Latino Candidates”); Voting 
Rights Act: The Continuing Need for Section 5 Pre- 
Clearance, at 14-22 (S. Hrg. 109-569) (testimony by 
experts on continuing existence of racially polarized 
voting); see also H.R. Rep. No. 109-478, at 34-35

16



(explaining racially polarized voting, explaining how 
racially polarized voting can enable vote dilution to 
occur, and citing post-1980 case law in which courts 
have found the existence of racially polarized voting 
in Florida, Texas, South Carolina, South Dakota and 
Louisiana). The above sampling of evidence before 
Congress is surely sufficient to provide a basis for 
Congress’s correct finding that racially polarized 
voting continues to exist and makes minorities 
politically vulnerable to discrimination.

Congress also reviewed evidence of racially polar­
ized voting in the covered jurisdictions, and the evi­
dence showed that racially polarized voting is much 
more pronounced in covered than in non-covered 
jurisdictions. See, e.g., H.R. Rep. No. 109-478, at 34 
(“Testimony presented indicated that ‘the degree of 
racially polarized voting in the South is increasing, 
not decreasing.’”); Evidence o f Continued Need, at 53- 
54 (Serial No. 109-103, Vol. I) (summarizing report 
on Alabama that included evidence of racially polar­
ized voting); id. at 355 (summarizing testimony on 
“very high degree of racially polarized voting” in 
North Carolina and giving example of an election 
affected by racially polarized voting); id. at 362-63 
(summarizing testimony on existence of racially 
polarized voting in Virginia and giving an example of 
a redistricting meeting in 2002 in which the city 
council of the City of Fredericksburg instructed the 
city attorney to find a way to draw the lines to elimi­
nate the African-American majority district); id. at 
365-67 (summarizing testimony on racially polarized 
voting in Mississippi and how “racially polarized 
voting in the state was intense, and had majority- 
black districts not been drawn, there would be few 
black lawmakers in office there.”); id. at 1312, 1349- 
50 (including evidence that in 2000 redistricting in

17



Alaska, the redistricting board hired a national vot­
ing rights expert who found racially polarized voting 
in certain areas); id. at 1403-10 (explaining electoral 
actions and changes in Arizona with discriminatory 
effects that could exist only in the context of racially 
polarized voting); Evidence o f  Continued Need (Serial 
No. 109-103, Vol. II) at 1503, 1508, 1510 n.44, 1521 
(including evidence that federal courts have contin­
ued to find racially polarized voting in Georgia); id. at 
1601-05, 1607-09, 1614-15, 1618, 1621, 1628, 1637, 
1639-40 (including evidence that in the face of 
“persistent racially polarized voting” in Louisiana, 
electoral gains have largely come about through 
the existence of minority-majority districts, and 
discussing specific examples illustrating the effect of 
racially polarized voting on elections); id. at 1709, 
1721-23 (including evidence of racially polarized 
voting in Mississippi post-1980); id. at 1974-75 
(emphasizing problem of racially polarized voting in 
South Carolina and including citations to caselaw 
making such findings); id. at 2012-13 (including evi­
dence discussing a 1984 case from Marengo County, 
Alabama, in which the court held that racially polar­
ized voting, among other things, led to a depressed 
level of participation by black voters).

Similarly, in contrast to petitioner’s assertion (Pet. 
Br. 45-46), Congress did hear comparative evidence of 
racially polarized voting in covered versus non- 
covered jurisdictions, and it correctly found that 
racially polarized voting is more pronounced in the 
former. See, e.g., H.R. Rep. No. 109-478, at 34-35 
(discussing caselaw in which courts have found the 
existence of racially polarized voting in Florida, 
South Carolina, Louisiana, Texas, and South Dakota); 
Evidence o f Continued Need, at 351 (Serial No. 109- 
103, Vol. I) (showing that as recently as 2001,

18



California passed the California Voting Rights Act of 
2001, which “is designed to confront the widespread 
degree of racially polarized voting in the state and 
the inability of many Latino voters to elect can­
didates of their choice.”); id. at 215-17 (comparing 
racially polarized voting in covered and noncovered 
jurisdictions); id. at 1856-62 (discussing racially 
polarized voting in New York). As the district court 
correctly concluded, “there is evidence in the record 
indicating that racially polarized voting is much more 
pronounced in covered than in non-covered juris­
dictions.” 811 F. Supp. 2d at 507 (citing The 
Continuing Need for Section 5 Pre-Clearance, at 48 
(response of Anita Earls) (S. Hrg. 109-569)). This 
conclusion is confirmed by an analysis of Section 2 
case law. See, e.g., Katz, Not Like the South? 196 (“Of 
the cases in which courts found legally significant 
racial bloc voting, courts in covered jurisdictions have 
documented racial polarization in specific elections 
that was more extreme than have courts in non­
covered ones, and have done so at rates that are 
statistically significant.”).

In addition, Congress heard evidence that although 
racially polarized voting exists in both covered and 
non-covered states, its existence in covered states is 
more of a concern. See, e.g., Voting Rights Act: 
The Continuing Need for Section 5 Pre-Clearance, at 
14 (S. Hrg. 109-569) (“The question is how [racially 
polarized voting] interacts with election procedures, 
with the traditions in the community, with a number 
of things, and so I think just to say that racially 
polarized voting exists everywhere and therefore 
there is no difference between the covered and 
uncovered jurisdictions, is simply not true.”) (test­
imony of Theodore S. Arrington).

19



Not only did Congress have a sufficient record of 
racially polarized voting, but more recent data and 
caselaw confirm the continued existence of racially 
polarized voting in the covered jurisdictions. In 2007 
and 2008, federal courts found racially polarized 
voting and minority vote dilution in Mississippi, and 
relied in part on these conclusions in holding that 
certain electoral schemes violated the VRA. See 
Jamison v. Tupelo, 471 F. Supp. 2d 706, 713 (N.D. 
Miss. 2007) (“ [T]he evidence submitted by both the 
plaintiffs and defendants supports a determination 
that racially polarized voting occurs within the city of 
Tupelo with recognizable regularity.”); United States 
v. Brown, 494 F. Supp. 2d 440, 484 & n.72 (S.D. Miss. 
2007) (“defendants have admitted that voting in 
Noxubee County is racially polarized,” and the court 
cited the findings of one of the amici submitting this 
brief (Prof. Arrington) showing the degree to which 
voting is racially polarized); Fairley v. Hattiesburg, 
No. 2:06cvl67-KS-MTP, 2008 WL 3287200, at *9 
(S.D. Miss. August 7, 2008) (“In addition to this his­
tory of official discrimination, the evidence also 
established that the City exhibited extreme racial 
bloc voting and racially polarized voting patterns in 
each of the last two municipal elections.”). Similarly, 
in McGregor, 824 F. Supp. 2d at 1346, the court found 
that politicians in Alabama “plainly singled out Afri­
can-Americans for mockery and racist abuse.” The 
court concluded that “ [i]n an era when the ‘degree of 
racially polarized voting in the South is increasing, 
not decreasing,’ Alabama remains vulnerable to poli­
ticians setting an agenda that exploits racial differ­
ences.” Id. at 1347 (citation omitted). The same 
conclusion has been reached in South Carolina, 
where federal courts have emphasized the continued 
existence of racially polarized voting. See United

20



States v. Charleston Cnty. Council, 316 F. Supp. 
2d 268 (D.S.C. 2003) (recounting evidence of severe 
degree of racial polarization in South Carolina elec­
tions); see also Colleton, 201 F. Supp. 2d at 641. And 
similar findings have been made in Texas, see, 
e.g., Texas v. United States, No. 11-1303, 2012 WL 
3671924, at *32 (D.D.C. Aug. 28, 2012) (“ [t]he Texas 
OAG’s analysis shows that Hispanic and Black voters 
in HD 149 uniformly prefer the same candidates in 
general elections and that their preferences con­
sistently diverge from those of the district’s Anglo 
voters.”); Fabela v. City o f Farmers, No. 10-1425, 
2012 WL 3135545, at *11 (N.D. Tex. Aug. 2, 2012) 
(“The court finds that plaintiffs have proved racial 
bloc voting through statistical evidence from four 
elections and testimony by witnesses regarding their 
voting, thus satisfying the second and third prongs of 
Gingles.”); Benavidez, 638 F. Supp. 2d at 726 (“The 
Court finds that the statistical evidence shows that 
racially polarized voting occurred and the degree of 
polarization was significant in the last three elections 
involving Hispanic candidates.”), and Arizona, Gon­
zalez v. Arizona, 677 F.3d 383, 406 (9th Cir. 2012) 
(“Arizona continues to have some degree of racially 
polarized voting.”).

Electoral data confirm the continued existence of 
racially polarized voting in the covered jurisdictions. 
For example, the House Judiciary Committee found 
that “in 2000, only 8 percent of African Americans 
[serving in Congress] were elected from majority 
white districts.” H.R. Rep. No. 109-478, at 34. The 
Committee also found that “ [ljanguage minority 
citizens fared much worse. As of 2000, neither 
Hispanics nor Native American candidates have been 
elected to office from a majority white district.” Id. 
Furthermore, “ [i]n certain covered States, such as

21



Mississippi, Louisiana, and South Carolina, African 
Americans have yet to be elected to any Statewide 
office.” Id. at 33. Given this evidence, the Committee 
concluded that racially polarized voting showed “con­
tinued resistance within covered jurisdictions to fully 
accept minority citizens and their preferred candi­
dates into the electoral process,” id., and therefore 
found that “racial and language minorities remain 
politically vulnerable, warranting the [Act’s] contin­
ued protection.” 2006 Amendments § 2(b)(3), 120 
Stat. at 577.

Exit polling data from the 2008 presidential elec­
tion confirm this conclusion. In 2008, President 
Obama won only one fully covered state (Virginia), 
and “ [i]n several of the covered states, he did worse 
among white voters than the Democratic nominee 
four years earlier.”4 Northwest Austin Municipal 
Utility District Number One v. Holder, No. 08-322, 
2009 WL 526206, at *3 (U.S. Feb. 26, 2009) (Brief for 
Nathaniel Persily, Stephen Ansolabehere, and 
Charles Stewart III as Amici Curiae on Behalf of 
Neither Party). His victory was a result of “an 
increase in his share of the white vote in noncovered 
jurisdictions and a nationwide increase in his share 
of the vote cast by racial minorities. Whites in the 
covered jurisdictions did not cross over in significant 
numbers to vote for Obama.” Id. A detailed analysis 
of the data by state shows that “ [t]he six states with 
the lowest percentages of white respondents who 
reported voting for Obama are covered states. Three 
of those states (Alabama, Mississippi, and Louisiana) 
reported a drop in the white vote for the Democratic

22

4 This supports the conclusion by political scientists that 
partisanship alone does not explain the voting patterns that 
have been identified in covered jurisdictions.



nominee since 2004. All of the covered states are 
below the national share of the reported white vote 
received by Obama.” Id. at *10. Remarkably, the 
five states reporting the lowest levels of white voting 
for Obama and the largest gap between how white 
citizens and how black citizens voted for Obama (all 
covered states—Mississippi, Louisiana, Georgia, 
South Carolina, and Alabama) are also in the top six 
states in terms of the share of the population that is 
black. Id.

A review of voting trends on the local level con­
firms that racially polarized voting has increased in 
some of the covered states. For instance, Dr. Lisa 
Handley, comparing the voting patterns by race in 
recent Alaska elections with an analysis she 
conducted ten years ago, concluded that “ [o]verall, 
voting was more polarized in Alaska this past decade 
(2002-2010) than in the previous decade.” Dr. Lisa 
Handley, A Voting Rights Analysis o f the Proposed 
Alaska State Legislative Plans: Measuring the Degree 
o f Racial Bloc Voting and Determining the Effect­
iveness o f Proposed Minority Districts, at 17, § 2.7, 
available at http://www.akredistricting.org/Files/Final- 
Report-of-Dr-Lisa-Handley.pdf. “The Alaska Native- 
preferred candidate did not win any of the statewide 
contests that were polarized.” Id. This information 
confirms Justice Kennedy’s observation in Bartlett 
v. Strickland, 556 U.S. 1, 25 (2009), that “racially 
polarized voting [is] not ancient history. Much remains 
to be done to ensure that citizens of all races have 
equal opportunity to share and participate in our 
democratic processes and traditions.”

23

http://www.akredistricting.org/Files/Final-Report-of-Dr-Lisa-Handley.pdf
http://www.akredistricting.org/Files/Final-Report-of-Dr-Lisa-Handley.pdf


III. IN REAUTHORIZING SECTION 5, CON­
GRESS HAS ATTEMPTED TO ADDRESS 
DISCRIMINATORY VOTE DILUTION, 
NOT TO PROHIBIT RACIALLY POLAR­
IZED VOTING.

A. Racially Polarized Voting Can Create 
An Environment Conducive to Minor­
ity Vote Dilution.

State actions taken in environments of racially 
polarized voting can result in vote dilution. Vote 
dilution occurs when a political entity “enact [s] a 
particular voting scheme . . . [which] ‘minimize [s] or 
cancel [s] out the voting potential of racial or ethnic 
minorities.’” Miller v. Johnson, 515 U.S. 900, 911 
(1995) (quoting Mobile v. Bolden, 446 U.S. 55, 66 
(1980)).

“There are two classic patterns. Where voting is 
racially polarized, a districting plan can systemati­
cally discount the minority vote either ‘by the disper­
sal of blacks into districts in which they constitute an 
ineffective minority of voters’ or from ‘the concentra­
tion of blacks into districts where they constitute an 
excessive majority,’ so as to eliminate their influence 
in neighboring districts.” Bartlett, 556 U.S. at 28 
(Souter, J., dissenting) (quoting Gingles, 478 U.S. at 
46 n .ll).

Vote dilution affects an individual’s right to vote: 
“The right to vote can be affected by a dilution of 
voting power as well as by an absolute prohibition on 
casting a ballot.” Allen v. State Bd. o f Elections, 393 
U.S. 544, 569 (1969); see also Continuing Need for 
Section 5 Pre-Clearance, at 36 (responses of Theodore 
S. Arrington) (S. Hrg. 109-569) (explaining that the

24



VRA has always been “about more than just the mere 
ability to cast a vote . . . .  The vote must be counted 
and must count.”); cf. Bartlett, 556 U.S. at 28 (Souter, 
J., dissenting) (“Treating dilution as a remedial harm 
recognizes that § 2 protects not merely the right of 
minority voters to put ballots in a box, but to claim a 
fair number of districts in which their votes can be 
effective.” (citing Gingles, 478 U.S. at 47)).

Vote dilution is not new. As the district court 
pointed out, such so-called “second generation barri­
ers” actually have been used in covered jurisdictions 
since minorities began voting after the Civil War. 
See, e.g., 811 F. Supp. 2d at 490 (“ [Vjote dilution ‘con­
sists of mechanisms employed by whites since the 
First Reconstruction in the nineteenth century’” 
(citing Evidence o f Continued Need for Section 5 
at 209 (Serial No. 109-103, Vol. I))); id. (“ [D]ilutive 
tactics were ‘widely used in the Nineteenth Century 
when black males could vote.’” (citing An Introduc­
tion to the Expiring Provisions o f the Voting Rights 
Act and Legal Issues Relating to Reauthorization, 
Hearing Before the S. Comm, on the Judiciary, 109th 
Cong. 206 (May 9, 2006) (S. Hrg. 109-458) (prepared 
statement of Chandler Davidson)). Vote dilution 
tactics were also an immediate response to wide­
spread black enfranchisement during the 1960s. 
Id. (citing Introduction to Expiring Provisions 206 
(“ [Vote dilution] began to be used once more in the 
mid-Twentieth Century, particularly after the 
abolition of the white primary, as increasing numbers 
of blacks began to be able to exercise the franchise.”)).

In fact, each time it has reauthorized Section 5, 
Congress has relied on the use (or attempted use) of 
vote dilution tactics in covered areas. H.R. Rep. No. 
109-478, at 36 (“The Committee finds that voting

25



26
changes devised by covered jurisdictions [since 1982] 
resemble those techniques and methods used in 1965, 
1970, 1975, and 1982 including: enacting discrimina­
tory redistricting plans; . . . enacting discriminatory 
annexations and deannexations; . . . changing elec­
tions from single member districts to at-large voting 
and implementing majority vote requirements.”).

This time the situation is no different. The House 
and Senate Judiciary Committees heard testimony 
“suggesting that, due to the interaction of racially 
divergent voting patterns and certain electoral struc­
tures, minorities in the covered jurisdictions are less 
likely to elect their preferred candidates.” See, e.g., 
The Continuing Need for Section 5, at 49 (statement 
of Richard Engstrom) (Serial No. 109-75); The Con­
tinuing Need for Section 5 Pre-Clearance, at 14, 26 
(responses of Theodore S. Arrington) (S. Hrg. 109- 
569); id. at 48 (response of Anita Earls).

B. Racially Polarized Voting Is A Neces­
sary Precondition For Vote Dilution To 
Occur.

Because vote dilution can occur only in an envi­
ronment of racially polarized voting, racially polar­
ized voting (even though, as discussed above, not 
itself state action) is one of the elements of a vote 
dilution claim under Section 2: “ [C]ourts and com­
mentators agree that racial bloc voting is a key 
element of a vote dilution claim.”5 Gingles, 478 U.S. 
at 55 (citing cases). Specifically, to establish vote 
dilution under Section 2, the minority group, as an 
initial matter, must be able to demonstrate that

5 “The terms ‘racially polarized voting’ and ‘racial bloc voting’ 
are used interchangeably.” 478 U.S. at 52 n.18.



(1) “it is sufficiently large and geographically compact 
to constitute a majority in a single-member district”;
(2) it is “politically cohesive”; and (3) “the white 
majority votes sufficiently as a bloc to enable it . . . 
usually to defeat the minority’s preferred candidate.” 
Id. at 50-51.

In a decision issued a month before the VRA was 
reauthorized, this Court recognized the association 
between racially polarized voting and a vote dilution 
claim: “[G]iven the presence of racially polarized
voting—and the possible submergence of minority 
votes—throughout Texas, it makes sense to use the 
entire State in assessing proportionality.” League of 
United Latin American Citizens, 548 U.S. at 438.

C. Redistricting Can Be Used to Effect 
Vote Dilution.

Redistricting is the most obvious example of the 
importance of racially polarized voting to the Section 
5 analysis, as redistricting in areas where racially 
polarized voting occurs can have the effect of uncon­
stitutional discrimination. For example, redistricting 
to eliminate minority-majority districts in areas 
where racially polarized voting occurs can deprive 
minority citizens of a meaningful, effective vote and 
can prevent minorities from obtaining office.

Several of the amici briefs submitted in support 
of Shelby County assert that supporting minority- 
majority districts increases racial polarization. See, 
e.g., Brief of the Center for Constitutional Jurispru­
dence as Amicus Curiae in Support of Petitioner at 14 
(“ [I]f Section 5 affects racial polarization at all, it 
likely exacerbates it rather than diminishes it.”). 
According to the Center for Constitutional Jurispru­

27



28
dence, “[b]y retaining Section 5 pre-clearance, the 
government would perpetuate the precise racially 
polarized voting tendencies that the government pur­
ports to condemn.” (CCJ Br. 15.) None of the amici 
making such an argument, however, provides any 
empirical evidence to support its claim.

In reality, the assumption that minority-majority 
districts are racially polarizing is false. David T. 
Canon, Race, Redistricting, and Representation: The 
Unintended Consequences of Black-Majority Districts 
(University of Chicago Press 1999). Based on his 
study of sponsorship and co-sponsorship of legisla­
tion, speeches on the floor, roll call voting, committee 
assignments, leadership positions, constituency 
newsletters, district office location, and coverage of 
the member’s activities in local press reports addres­
sing how legislators represent racial interests, one of 
the amici submitting this brief (Professor Canon), 
found that African-American members of Congress 
spent more of their time representing the interests of 
all of their constituents, while white members of 
Congress (who had at least 25% of their constituents 
who were African American) were not as balanced in 
their legislative behavior. Id. at 143-242.

The reason for this, as Professor Canon has 
explained, is that in primary elections white voters in 
black majority districts become swing voters who 
ultimately decide the winner. Id. at 126-39. Thus, in 
Democratic primaries (given that black majority dis­
tricts are strongly Democratic) in which several Afri­
can American candidates compete against each other, 
it is the “commonality” candidate who can appeal to 
white and black voters alike who is more likely 
to win. See id., ch. 3. Minority-majority districts, 
therefore, promote a “politics of commonality” rather



than a “politics of difference.” Id. at 42-51. In short, 
rather than perpetuating racial polarization, minor­
ity-majority districts give African Americans a 
greater voice in the political process while simultane­
ously helping promote the effective representation of 
white voters in such districts.

IV. VOTE DILUTION DOES JUSTIFY PRE­
CLEARANCE.

Petitioner argues that vote dilution does not justify 
pre-clearance, and provides two bases for this argu­
ment. Pet. Br. 32. First, petitioner maintains that it 
is improper to consider evidence of intentional 
minority vote dilution in justifying reauthorization of 
Section 5 because Section 5 enforces the Fifteenth 
Amendment and “vote dilution does not violate the 
Fifteenth Amendment.” Id. Second, petitioner 
contends that “the character of modern vote dilution 
cannot justify preclearance . . . [because] whereas the 
South during the 1960s was plagued with vote-denial 
schemes interfering with ballot access, modern vote 
dilution claims involve diminishing the effect of 
ballots once cast.” Id. Both arguments fail for the 
same reasons expressed by the lower courts.

A. Vote Dilution Can Be Used As Evi­
dence To Sustain The Reauthorization 
Of Section 5.

Although this Court has never expressly considered 
whether vote dilution violates the Fifteenth Amend­
ment, it also has not, as petitioner wrongly argues, 
held that “vote dilution does not violate the Fifteenth 
Amendment.” Pet. Br. 32. At all events, the argu­
ment that evidence of minority vote dilution cannot 
be relied upon in upholding the constitutionality of

29



Section 5 is belied by this Court’s previous decision in 
City o f Rome v. United States, 446 U.S. 156 (1980). 
See Shelby Cnty., 811 F. Supp. 2d at 489.

In City o f Rome, the Court relied on evidence of 
minority vote dilution in upholding the constitution­
ality of Congress’s reauthorization of Section 5 under 
the Fifteenth Amendment. 446 U.S. at 181-82. 
In holding that “ [t]he extension of the Act, then, 
was plainly a constitutional method of enforcing the 
Fifteenth Amendment,” the Court focused, in part, on 
the following language by Congress to justify exten­
sion of the Act:

The recent objections entered by the Attorney 
General . . .  to Section 5 submissions clearly 
bespeak the continuing need for this preclear­
ance mechanism. As registration and voting o f 
minority citizens increases [sic], other measures 
may be resorted to which would dilute increasing 
minority voting strength.

Id. at 181 (emphasis added) (citations omitted). This 
language is contained within the Court’s discussion of 
the Fifteenth Amendment right specifically.

In addition, as the court of appeals explained here, 
although previous decisions upholding Section 5 have 
focused on Congress’s power under the Fifteenth 
Amendment, “the same ‘congruent and proportional’ 
standard, refined by the inquiries set forth in North­
west Austin, appears to apply ‘irrespective of whether 
Section 5 is considered [Fifteenth Amendment] 
enforcement legislation, [Fourteenth Amendment] 
enforcement legislation, or a kind of hybrid legisla­
tion enacted pursuant to both amendments.’” Shelby 
Cnty. v. Holder, 679 F.3d 848, 864 (D.C. Cir. 2012) 
(citations omitted). This rationale is consistent with

30



Congress’s understanding, as it invoked its authority 
under both the Fourteenth and Fifteenth Amend­
ments when it reauthorized Section 5 in 2006. Id.

B. The Right To Vote Involves More Than 
Mere Access To Casting A Ballot, And 
Includes The Right To A Meaningful 
Vote.

Petitioner argues that vote dilution does not justify 
Section 5’s pre-clearance requirement because 
modern vote dilution claims do not involve inter­
ference with ballot access, but rather “involve dimin­
ishing the effect of ballots once cast.” Pet. Br. 32. 
This is a distinction without a difference, as a diluted 
and ineffective vote is a vote that does not count. It 
should go without saying that provision of ballot 
access to minorities is meaningless if their votes are 
not given the same meaning and effect as votes cast 
by persons in the majority group. Thus, “modern 
vote dilution claims” address the same problem as 
past vote dilution claims involving interference with 
ballot access, and provide a sound basis for Section 
5’s pre-clearance requirement.

Indeed, Congress made clear in its 2006 reauthori­
zation of the VRA that “ [t]he purpose of this Act is to 
ensure that the right of all citizens to vote, including 
the right to register to vote and cast meaningful 
votes, is preserved and protected as guaranteed by 
the Constitution.” Pub. L. No. 109-246, § 2(a), 120 
Stat. 577 (emphasis added). Similarly, this Court has 
recognized that Section 5 bars electoral changes 
interfering with a citizen’s right to cast a meaningful 
vote. See Allen, 393 U.S. at 569 (“The right to vote 
can be affected by a dilution of voting power as well 
as by an absolute prohibition on casting a ballot.”).

31



As one of the amici submitting this brief (Prof. 
Arrington) explained in his testimony before the 
Senate Judiciary Committee on the reauthorization 
of the VBA, the interplay between racially polarized 
voting and election procedures can cause vote 
dilution, precluding the right to cast a meaningful 
vote:

When the candidates chosen by the minority 
voters and those chosen by the majority group 
differ, election systems and arrangements must 
be able to provide equal opportunity for the 
minority voters to elect representatives of their 
choice. Section 5 of the Voting Rights Act 
requires covered jurisdictions to consider 
whether minority voters have such an equal 
opportunity. Section 2 of the Voting Rights Act 
provides a mechanism for assuring such equal 
opportunity throughout America. Both parts of 
the Voting Rights Act are still needed because 
seemingly racially neutral election procedures 
such as at-large voting, major vote requirements, 
and anti-single-shot provisions may combine 
with racially polarized voting to erect effective 
barriers to the ability of minority voters to have 
an equal opportunity to participate in the politi­
cal process and an equal opportunity to elect rep­
resentatives of their choice.

Continuing Need for Section 5 Pre-Clearance, at 8 (S. 
Hrg. 109-569) (statement of Theodore S. Arrington); 
see also Shelby Cnty., 679 F.3d at 865 (“Consideration 
of this evidence is especially important given that so- 
called ‘second generation’ tactics like intentional vote 
dilution are in fact decades-old forms of gamesman­
ship.”).

32



“The history of Section 5 demonstrates that it 
addresses changes in state law intended to perpetu­
ate the exclusion of minority voters from the exercise 
of political power.” Georgia v. Ashcroft, 539 U.S. at 
494 (Souter, J., dissenting). Vote dilution perpetu­
ates the exclusion of minority voters from partici­
pating on a level playing field in our democratic 
process. Section 5 never had the limited purpose 
petitioner claims, and minority vote dilution properly 
served as a basis for Congress’s reauthorization of 
that statutory provision. This Court recently recog­
nized its duty to save an act of Congress, if such an 
interpretation exists: ‘“ [T]he rule is settled that as 
between two possible interpretations of a statute, by 
one of which it would be unconstitutional and by the 
other valid, our plain duty is to adopt that which will 
save the Act.’” Nat’l Fed’n oflndep. Bus. v. Sebelius, 
132 S. Ct. 2566, 2593 (2012) (quoting Blodgett v. 
Holden, 275 U.S. 142, 148 (1927) (Holmes, J., concur­
ring)).

Congress established a substantial legislative 
record justifying the renewal of pre-clearance under 
the VRA for another 25 years. The extension passed 
with overwhelming bipartisan support in a House 
and Senate controlled by the Republican Party. The 
House passed the Act by a 390-33 vote, the Senate 
passed it by a unanimous 98-0 vote, and it was signed 
into law by President George W. Bush. In this period 
of extreme partisan politics, which has reached 
record levels in recent years, it is difficult to get such 
strong bipartisan support for anything.

Of course, there are some who disagree with the 
extension. None of their criticism, however, rises to 
the level of establishing that the extension is uncon­
stitutional. Both the district court and the court of

33



34
appeals properly deferred to Congress’s judgment: 
“After thoroughly scrutinizing the record and given 
that overt racial discrimination persists in covered 
jurisdictions notwithstanding decades of section 5 
pre-clearance, we, like the district court, are satisfied 
that Congress’s judgment deserves judicial defer­
ence.” Shelby Cnty., 679 F.3d at 874. Amici urge this 
Court to recognize Congress’s power under the Con­
stitution to continue the pursuit of true voting equal­
ity in this country and to grant the 2006 extension 
“the full measure of deference owed to federal stat­
utes.” Nat’l Fed’n oflndep. Bus., 132 S. Ct. at 2594.

CONCLUSION

The judgment of the court of appeals should be 
affirmed.

Respectfully submitted,

Peter Buscemi 
Counsel o f Record 

David M. Kerr 
Bahar Shariati 
Morgan, Lewis & Bockius LLP 
1111 Pennsylvania Avenue, N .W . 
Washington, D.C. 20004  
(202) 739-5190  
pbuscemi@morganlewis. com

Counsel for Amici Curiae

February 1, 2013



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No. 12-96

Shelby County, Alabama,
Petitioner,

v.

Eric H. Holder, Jr., Attorney General, et al.,
R espon den t.

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Counsel for Petitioner,
Shelby County, Alabama

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No. 12-96

In The

Supreme Court of tfie fHntteb States!

Shelby County, Alabama,

v.
Eric H. Holder, Jr., Attorney General 

of the United States, et al.,

Petitioner,

R espon den ts.

On Writ of Certiorari to the 
United States Court of Appeals 

for the District of Columbia Circuit

BRIEF FOR PROFESSORS RICHARD L. 
ENGSTROM, THEODORE S. ARRINGTON, 
AND DAVID T. CANON AS AMICI CURIAE 

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