Northwest Austin Municipal Utility Distr. One v. Holder Brief Amici Curiae Leadership Conference on Civil Rights

    No. 08-322

In The

Supreme Court of tfje Hmteti States;
Northwest Austin Municipal Utility District 

Number One,
Appellant,

Eric H. Holder, Jr ., Attorney General of the 
United States of America, et al.,

Appellees.

On Appeal from the 
United States District Court for the 

District of Columbia

BRIEF OF THE LEADERSHIP CONFERENCE 
ON CIVIL RIGHTS AND THE LCCR 

EDUCATION FUND ET AL. AS AMICI CURIAE 
IN SUPPORT OF APPELLEES

William L. Taylor 
2000 M St., N.W.
Suite 400
Washington, DC 20036 
(202) 659-5565

LisaM. Bornstein 
Leadership Conference 

on Civil Rights 
1629 K St. N.W. 
Washington, DC 20006 
(202) 466-3311

Matthew M. Hoffman 
(Counsel of record) 

Stephen J. Pollak 
John Townsend Rich 
Ethan Z. Davis 
Christopher D. Jackson 
Goodwin Procter LLP 
901 New YorkAve., N.W. 
Washington, DC 20001 
(202) 346-4000

Counsel for Amici Curiae

March 25, 2009



TABLE OF CONTENTS

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

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

POSITION OF AMICI CURIAE..,..................................3

SUMMARY OF ARGUMENT..................................... 5

ARGUMENT.......................     9

I. History Shows That Gains in Minority Political
Participation Can Be Reversed If the Political 
Branches and the Courts Fail To Vigilantly 
Protect Them.............................................................9

II, Congress’s Determination That the Special
Protections of § 5 Are Still Necessary in Covered 
Jurisdictions Is Reasonable and Entitled to the 
Highest Level of Deference................   16

A. Congress’s Factual Findings and Predictive 
Judgments About the Extent of Voting 
Discrimination and the Continued Need for
§ 5 Are Entitled to Substantial Deference........18

B. Giving Congress’s Findings the Deference to
Which They Are Entitled, the Decision To 
Extend § 5 Was Reasonable............................ 21

1. Racially Polarized Voting Patterns ...........22

2. Attorney General Objections, Requests 
for More Information and Withdrawals
of Submissions.......................................... 23

3. Section 5 Enforcement Actions.... ...........25



4. Judicial Preclearance Actions...................25

5. Extent of § 2 Litigation in Covered
Jurisdictions.............................................. 26

6. Appointment of Federal Observers.......... 27

III. Case-by-Case Litigation Under § 2 Is Not a Suf­
ficient Safeguard Against Voting Discrimina 
tion............         28

CONCLUSION .......................       32

ii

APPENDIX A: List of LCCR Member Organizations 

APPENDIX B: Additional Signatories



CASES:

TABLE OF AUTHORITIES

Page
Bartlett v. Strickland, No. 07-689 (Mar. 9,

2009)................................ ........................ ................3,6
City of Boerne v. Flores, 521 U.S. 507 (1997) 4, 19
Civil Rights Cases, 109 U.S. 3 (1883) ......... 32, 33
Lopez v. Monterey County, 519 U.S. 9 (1996).......... 31
New York Trust Co. v. Eisner, 256 U.S. 345 

(1921).............. ....... ...................... ...............................9
Northwest Austin Mun. Util. Dist. No. One v. 

Mukasey, 557 F. Supp. 2d 9 (D.D.C. 2008)...........26
Oregon v. Mitchell, 400 U.S. 112 (1970)..................  19
South Carolina v. Katzenbach, 383 U.S. 301 

(1966)...............................................   passim
Thornburg v. Gingles, 478 U.S. 30 (1986)...............  30
Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180 

(1997)............................. .................................  7, 18, 19
United States v. Cruikshank, 92 U.S. 542 

(1876).........................................................  7, 12,13, 14
United States v. Reese, 92 U.S. 214 

(1876)..... .............................................. 7, 12, 13, 14

CONSTITUTION:
U.S. Const, amend. X IV ............................................... 10
U.S. Const, amend. XV........................................ passim

STATUTES:
Act of Feb. 28, 1871, ch. 99, 16 Stat. 43 3 ................ 10

iii



IV

Enforcement Act of 1870, 16 Stat. 140.... 7, 10, 12, 13
Fannie Lou Hamer, Rosa Parks, and Coretta 

Scott King Voting Rights Act Reauthoriza­
tion and Amendments Act of 2006, Pub. L.
No. 109-246, 120 Stat. 577:

§ 2(b)(1), 120 Stat. 577...................   6
§ 2(b)(3), 120 Stat. 577......................................  22
§ 2(b)(4)(A), 120 Stat. 577.......................... 23, 25
§ 2(b)(4)(B), 120 Stat. 577.............     26
§ 2(b)(4)(C), 120 Stat. 578.........    26
§ 2(b)(5), 120 Stat. 578.....................   27
§ 2(b)(7), 120 Stat. 578.....         17
§ 2(b)(9), 120 Stat. 578.............. 17, 28

Voting Rights Act of 1965, Pub L. No. 89-110,
79 Stat. 437, as amended:

§ 2, 42 U.S.C. § 1973..................................passim
§ 5, 42 U.S.C. § 1973c ........  ........passim
§ 8, 42 U.S.C. § 1973f...............     27

LEGISLATIVE HISTORY:
Extension of the Voting Rights Act: Hearings 

Before the Subcomm. on Civil and Constitu­
tional Rights of the House Comm, on the Ju­
diciary, 97th Cong. (1981)................ .................. 16

H.R. Rep. No. 109-478 (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 of the Senate Comm, on 
the Judiciary, 109th Cong. (2006)..................... 20



V

Renewing the Temporary Provisions of the Vot­
ing Rights Act: Legislative Options After 
LULAC v. Perry: Plearing Before the Sub- 
comm. on the Constitution, Civil Rights and 
Property Rights of the Senate Comm, on the 
Judiciary, 109th Cong. (2006)......................... ......20

S. Rep. No. 109-295 (2006).................. ................ 20, 23
Understanding the Benefits and Costs of 

Section 5 Preclearance: Hearing Before the 
Senate Comm, on the Judiciary, 109th Cong. 
(2006)................................................................... 20, 30

Voting Rights Act: Section 5 of the Act— 
History, Scope and Purpose: Hearing Before 
the Subcomm. on the Constitution of the 
House Comm, on the Judiciary, 109th Cong. 
(2005)..................................................... .......  30, 31, 32

152 CONG. Rec. H5207 (daily ed. July 13, 2006) .... 21
152 CONG. rec . S8012 (daily ed. July 20, 2006)....21
OTHER AUTHORITIES:
Federal Judicial Ctr., 2003-2004 District Court 

Case Weighting Study. Final Report to the 
Subcomm. on Judicial Statistics of the 
Comm, on Judicial Res. of the Judicial Con­
ference of the United States (2005)............... ........  30

Eric Foner, Reconstruction: America’s Un­
finished Revolution (1988)..............  10, l l ,  13, 14

William Gillette, Retreat from Recon­
struction 1869-1879 (1979)..................................  14

Bernard Grofman et al ., Minority Repre­
sentation and the Quest for Voting 
Equality (1992)........................................... . 9, 12, 31



VI

Leanna Keith, The Colfax Massacre (2008) ..13,15
M ichael J. Klarman, From Jim Crow to Civil 

Rights: The Supreme Court and the 
Struggle for Racial Equality (2004).........10,12

Charles Lane, The Day Freedom Died: The 
Colfax Massacre, the Supreme Court, and 
the Betrayal of Reconstruction (2008)..........  13

1 George Santayana, The Life of Reason; or
the Phases of Human Progress (1917)................9

Richard M. Valelly, The Two Reconstruc­
tions: The Struggle for Black Enfran­
chisement (2004).......... ....... ..................... .........  9,12

2 Charles Warren, The Supreme Court in
United States History (1922)........................... . 14



INTEREST OF AMICI CURIAE

The Leadership Conference on Civil Rights 
(“LCCR”) is a coalition of 200 organizations commit­
ted to the protection of civil and human rights in the 
United States.1 It is the nation’s oldest, largest, and 
most diverse civil and human rights coalition. LCCR 
was founded in 1950 by three legendary leaders of 
the civil rights movement—A. Philip Randolph, of 
the Brotherhood of Sleeping Car Porters; Roy Wil­
kins, of the NAACP; and Arnold Aronson, of the Na­
tional Jewish Community Relations Advisory Coun­
cil. Its member organizations represent people of all 
races and ethnicities.2

LCCR promotes effective civil rights legislation 
and policy. It was in the vanguard of the movement 
to secure passage of the Civil Rights Acts of 1957, 
1960 and 1964, the Voting Rights Act of 1965 and the 
Fair Housing Act of 1968. Since enactment of these 
landmark. laws, the number of LCCR member or­
ganizations has grown, and LCCR’s commitment to 
social justice has flourished.

The LCCR Education Fund (“LCCREF”) is the re­
search, education, and communications arm of 
LCCR. It focuses on documenting discrimination in 
American society, monitoring efforts to enforce civil 
rights legislation, and fostering better public under-

1 The parties have consented to the filing of this brief in letters 
on file with the Clerk. No counsel for a party authored this brief 
in whole or in part, and no counsel or party made a monetary 
contribution intended to fund the preparation or submission of 
this brief. No person other than amici curiae, their members, or 
their counsel made a monetary contribution to its preparation 
or submission.
2 See Appendix A for a list of LCCR member organizations.



2

standing of issues of prejudice. LCCREF has pub­
lished studies and reports on many subjects, includ­
ing voting rights.

One of LCCR’s and LCCREF’s core roles is promot­
ing voting rights, especially among racial and ethnic 
minorities. Beginning with the Voting Rights Act of 
1965, LCCR has been instrumental in the passage of 
voting rights reform, including the reauthorization of 
the Voting Rights Act in 2006. For this latter initia­
tive, LCCREF launched Renew the VRA, a national 
grassroots education campaign about the need for 
strong and vigorous voting rights protection. Part of 
this campaign included issuing a series of reports on 
fourteen states, which assessed the impact of the 
temporary provisions of the Voting Rights Act on 
each state over the previous 25 years. These reports 
showed that those provisions played a significant 
role in protecting minority voting rights but found 
that discrimination still pervades the electoral proc­
ess. The work of the Renew the VRA campaign and 
LCCR’s coordination of the national legislative effort 
played a significant role in Congress’s decision to re­
new § 5 of the Voting Rights Act for another 25 
years.

LCCR and LCCREF have filed only a handful of 
amicus curiae briefs before this Court. We do so only 
when we believe that a vital national interest is at 
stake. That is the case here. That national interest is 
the right of all citizens in the United States to vote 
without facing discrimination, to choose leaders that 
represent their interests and, by doing so, to promote 
the influence of the United States throughout the 
world as a viable and vibrant democracy.



3

Several other organizations that are not members 
of LCCR also join as signatories to this brief. These 
organizations and their Statements of Interest are 
set forth in Appendix B.

POSITION OF AMICI CURIAE
LCCR, LCCREF and the other supporting amici 

believe Congress’s decision in 2006 to extend § 5 of 
the Voting Rights Act for 25 years was a reasonable 
and appropriate exercise of Congress’s enforcement 
authority under the Fourteenth and Fifteenth 
Amendments. While the United States has made 
substantial progress toward eliminating racial dis­
crimination in voting since 1965, the problems that 
initially prompted Congress to adopt § 5 have not 
been solved. Just this month, a plurality of this 
Court recognized that “racial discrimination and ra­
cially polarized voting are 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.” Bartlett v. 
Strickland, No. 07-689, slip op. at 21 (Mar. 9, 2009) 
(Opinion of Kennedy, J.).

In extending § 5, Congress carefully surveyed the 
modern-day voting rights landscape and concluded 
that racial and language discrimination in voting 
persist in the United States and that the problem is 
particularly severe in the jurisdictions covered by 
§ 5. Consequently, it concluded that special proce­
dures are still warranted in these regions to preserve 
and continue the progress of the last four decades. 
This Court should not take the extraordinary step of 
second-guessing the national legislature’s judgment, 
given the fundamental nature of the right at issue, 
the careful deliberation that Congress gave to the



4

matter, and the specific factual findings on which 
Congress’s judgment rests.

Amici agree with the District Court and the appel­
lees that the constitutionality of the 2006 extension 
should be assessed under the deferential standard 
applied in South Carolina v. Katzenbach, 383 U.S. 
301 (1966), and subsequent § 5 cases. The Court’s 
subsequent analysis in City of Boerne v. Flores, 521 
U.S. 507 (1997), does not purport to alter or displace 
the Katzenbach analysis, nor does it mandate a 
heightened review standard in this case. Given the 
specific authority granted to Congress under the 
Fourteenth and Fifteenth Amendments and the fun­
damental nature of the right to vote, Congressional 
enactments to protect minority voting rights are en­
titled to the highest level of deference from this 
Court. The Court has always applied the Katzenbach 
framework in considering the constitutionality of § 5 
and other Voting Rights Act provisions, and should 
not depart from that consistent practice in this case.

Amici also agree with the District Court and the 
appellees that under either the Katzenbach or the 
City of Boerne standard, the 2006 extension of § 5 is 
an appropriate exercise of Congress’s powers to pre­
vent and redress voting discrimination. We write 
separately to emphasize that the progress the United 
States has made toward eradicating racial discrimi­
nation in voting since 1965, though real and substan­
tial, is nonetheless fragile and unfinished. Without 
the continued protection of § 5, there is a significant 
risk that these gains will erode or even disappear 
over time.

The consequences that could ensue if this Court 
were to invalidate § 5 are severe. Over the years,



5

many jurisdictions have adopted voting changes that 
were never precleared and therefore could not be im­
plemented. If § 5 were invalidated, these existing 
changes would become enforceable. And additional 
changes would certainly follow. In the next round of 
redistricting, many existing majority-minority dis­
tricts could be eliminated. Some currently covered 
jurisdictions, if not bound by § 5, might restructure 
their governments in ways that disadvantage minor­
ity voters, e.g., by switching from a system of single­
member districts to at-large voting, reducing the 
number of seats on elected bodies, or reallocating au­
thority from one body to another. Jurisdictions may 
also discriminate against minority voters by imple­
menting new direct barriers to the right to vote, e.g., 
by purging voters from the registration rolls, by 
eliminating polling places or reducing voting hours, 
or by simply cancelling elections altogether. In short, 
without the protection of § 5, many of the gains of 
the last four decades could be lost. As we show below, 
the clock of progress has been turned back before in 
American history. This Court must not let it happen 
again.

SUMMARY OF ARGUMENT
The premise of appellant’s argument is that the 

circumstances that justified enactment of § 5 in 1965 
were peculiar to that time and have since essentially 
disappeared. To be sure, as Congress specifically 
found, there have been extraordinary advances in 
minority political participation since 1965— advances



6

that are due in no small part to the effectiveness of 
§ 5 in preventing discriminatory electoral practices.3

But as the Bartlett plurality recognized, racial dis­
crimination and racially polarized voting are very 
much alive today. This is hardly surprising. The atti­
tudes and prejudices that gave rise to the widespread 
and systematic discrimination that existed in 1965 
were shaped over centuries. Some 88 years elapsed 
between the Compromise of 1877, which marked the 
end of Reconstruction, and the enactment of the Vot­
ing Rights Act in 1965. In 2006, the protections of 
the Act had been in place for only 41 years—less 
than half that time. In light of the deep historical 
roots of the problem and the extensive evidence of 
ongoing discrimination that Congress reviewed, it 
was reasonable for Congress to conclude that another 
25 years was needed to eradicate the legacy of dis­
crimination in the jurisdictions covered by § 5.4

We make three key points below. First, history 
teaches that gains in minority political participation 
are fragile and must be vigilantly protected by both 
the political branches of government and by the

3 See Pub. L. No. 109-246, 120 Stat. 577, § 2(b)(1) (“Significant 
progress has been made in eliminating first generation barriers 
experienced by minority voters, including increased numbers of 
registered minority voters, minority voter turnout, and minor­
ity representation in Congress, State legislatures, and local 
elected offices. This progress is the direct result of the Voting 
Rights Act of 1965.”).
4 See H.R. Rep. No. 109-478, at 58 (2006) (finding that “another 
25 years of remedial measures (for a total of 67 years of reme­
dial measures under the VRA until 2032) remains appropriate 
given the near century of discrimination the Act is designed to 
combat”).



7

courts. In the decade following the Civil War, there 
were substantial gains in African American voter 
registration and political participation. But those 
gains were quickly erased following the end of Re­
construction. While there were numerous causes of 
this reversal, historians agree that a pair of decisions 
by this Court— United States v. Reese, 92 U.S. 214 
(1876), and United States v. Cruikshank, 92 U.S. 542 
(1876)—played a significant role. These decisions 
struck down key provisions of the Enforcement Act of 
1870, 16 Stat. 140, which Congress had enacted to 
protect African American voting rights, and con­
strued other provisions so narrowly that they were of 
little practical effect. With no effective federal statu­
tory scheme in place to protect minority voting 
rights, States and local jurisdictions were free to im­
plement a wide range of discriminatory laws and 
practices that effectively nullified the Fifteenth 
Amendment’s guarantees for many generations. In 
light of this history, the present-day Court should be 
extremely hesitant to question Congress’s judgment 
that the protections of § 5 are still necessary.

Second, Congress’s determination that § 5 is still 
needed to preserve and extend the progress of the 
last four decades is reasonable and supported by the 
legislative record. Appellant does not, dispute the un­
derlying facts, but instead challenges the conclusions 
that Congress drew from those facts. But even if the 
Court might have weighed the evidence differently or 
drawn different conclusions if it were considering the 
matter in the first instance, it still should defer to 
Congress’s judgment because “ [t]he Constitution 
gives to Congress the role of weighing conflicting 
evidence in the legislative process.” Turner Broad. 
Sys., Inc. v. FCC, 520 U.S. 180, 199 (1997). Viewing



8

Congress’s findings in the appropriate deferential 
light, there is ample evidence to support the conclu­
sion that the special protections of § 5 are still neces­
sary in the covered jurisdictions.

Finally, appellant argues that § 5 is no longer nec­
essary because there are other legal tools for combat­
ing racial discrimination in voting—most notably § 2 
of the Voting Rights Act, 42 U.S.C. 1973. But while 
§ 2 is valuable and necessary, it is not an adequate 
substitute for § 5. The two provisions serve different 
purposes. Section 2 is designed to remedy existing 
discrimination, while § 5 is designed to prevent dis­
crimination from occurring in the first place. In en­
acting § 5, Congress drew on extensive experience 
showing that case-by-case litigation is not a suffi­
cient safeguard against discriminatory voting prac­
tices. The problems with the case-by-case approach 
that existed in 1965 continue to exist today. Individ­
ual litigation under § 2 is time-consuming and ex­
pensive. Most minority voters simply do not have the 
resources to bring such actions. And without § 5, it 
would be relatively easy for defendant jurisdictions 
to circumvent court orders in § 2 cases by adopting 
new discriminatory practices. There is a real risk 
that if § 5 were not in place, many jurisdictions could 
revert to discriminatory practices, significantly un­
dermining the progress that the United States has 
made over the last four decades toward achieving po­
litical equality for all its citizens.



9

ARGUMENT
I. History Shows That Gains in Minority Po­

litical Participation Can Be Reversed If the 
Political Branches and the Courts Fail To 
Vigilantly Protect Them.

The Court has frequently observed that “a page of 
history is worth a volume of logic.” New York Trust 
Co. v. Eisner, 256 U.S. 345, 349 (1921).5 With that 
adage in mind, amici believe it is instructive to con­
sider the history of Congress’s first efforts to protect 
minority voting rights in the post-Civil War period, 
the role that this Court played in invalidating those 
laws, and the consequences that ensued.

The gains in minority political participation that 
have been made in the United States since 1965 have 
been great. But there were also significant advances 
in minority voter registration and political participa­
tion in the South in the decade following the Civil 
War. These gains resulted from an aggressive federal 
effort to secure and protect African Americans’ right 
to vote. By 1868, more than 700,000 African Ameri­
cans had been registered to vote under the supervi­
sion of federal troops.6 As a result, somewhere be­
tween 75% to 95% of eligible African American men 
were registered to vote in the South during the early 
years of Reconstruction.7

5 Cf. 1 George Santayana, The Life of Reason; or the 
Phases of Human Progress 284 (1917) (“Those who cannot 
remember the past are condemned to repeat it.”).

6 Bernard Grofman et al., Minority Representation and 
the Quest for Voting Equality 5 (1992).

7 Richard M. Valelly, The Two Reconstructions: The 
Struggle for Black Enfranchisement 33 (2004).



10

The Fifteenth Amendment was ratified in 1870. 
Shortly afterward, Congress enacted the Enforce­
ment Act of 1870, 16 Stat. 140, which among other 
things prohibited discrimination in voter registration 
and prescribed criminal penalties for obstructing vot­
ing rights. The Act was further amended in 1871 to 
permit federal courts to appoint election supervisors 
to oversee federal elections and voting registration. 
Act of Feb. 28, 1871, ch. 99, 16 Stat. 433.

The combination of large numbers of African- 
American voters and the adoption of new legal 
mechanisms to protect their rights had a remarkable 
impact on minority political participation. In the 
early 1870s, substantial numbers of African Ameri­
cans were elected to political office at all levels of 
government. By the end of Reconstruction, eighteen 
African Americans had served in southern states in 
such statewide offices as lieutenant governor, treas­
urer, superintendent of education or secretary of 
state, and by 1875 there were eight African Ameri­
cans serving in Congress, representing six different 
states.8 More than 600 African Americans also 
served in state legislatures—the large majority of 
them former slaves.9 African Americans made up 
nearly half of the lower-house delegates in Missis­
sippi and Louisiana and were a majority in South 
Carolina, which also had an African American justice 
on its Supreme Court.10 In the words of Professor

8 Eric Foner, Reconstruction: America’s Unfinished Revo­
lution 353, 538 (1988).

9 Id. at 355.
10 Michael J. Klarman, From Jim Crow to Civil Rights: The 
Supreme Court and the Struggle for Racial Equality 29 
(2004)



11

Eric Foner, a leading historian of the Reconstruction 
period, this represented “a stunning departure in 
American politics.”11 And “[a]n equally remarkable 
transformation occurred at the local level, where the 
decisions of public officials directly affected daily life 
and the distribution of power.”12 According to Profes­
sor Foner, “[i]n virtually every county with a sizable 
black population, blacks served in at least some local 
office during Reconstruction.”13

These gains proved short-lived. Reconstruction 
came to an end in 1877, following a compromise be­
tween Democrats and Republicans that resolved the 
disputed presidential election of 1876. Southern ju ­
risdictions then began implementing a wide variety 
of measures to nullify African American voting 
rights. Many of the early measures involved racial 
gerrymandering techniques designed to dilute Afri­
can American voting strength.14 In the 1890s, state

11 FONER, supra, at 355.

12 Id.

13 Id. at 356.
14 See id. at 590-91:

“Throughout the South, . . . districts were gerrymandered 
to reduce Republican voting strength. Mississippi Redeem­
ers concentrated the bulk of the black population in a 
‘shoestring’ Congressional district running the length of 
the Mississippi River, leaving five others with white ma­
jorities. Alabama parceled out portions of its black belt into 
six separate districts to dilute the black vote. Cities from 
Richmond to Montgomery redrew ward lines to ensure 
Democratic control. Wilmington’s black wards, containing 
four fifths of the city’s population, elected only one third of 
its aldermen. Georgia severely restricted black voting by a 
cumulative poll tax requirement, a measure adopted at the 
behest of Robert Toombs, who professed his willingness ‘to



12

efforts to disenfranchise African American voters be­
came more brazen. Beginning with Mississippi in 
1890, several southern states rewrote their constitu­
tions and enacted laws adopting literacy tests, poll 
taxes, “good character” requirements, white prima­
ries and other similar measures intended to exclude 
African Americans from the electorate.15 As a result, 
the gains in minority political participation from Re­
construction were quickly erased.16

The reasons for this reversal are complex. But his­
torians generally agree that this Court’s 1876 deci­
sions in Reese and Cruikshank, which struck down 
key provisions of the 1870 Enforcement Act and ren­
dered others effectively unenforceable, played a sig­
nificant role. In Reese, voting inspectors in Kentucky 
were indicted under §§ 3 and 4 of the Enforcement 
Act for wrongfully refusing to accept the vote of an 
African American citizen on account of his race and 
color. See 92 U.S. at 238-39 (Hunt, J,, dissenting).

face thirty years of war to get rid of negro suffrage in the 
South.”’

15 See GROFMAN ET AL., supra, at 8-9.

16 For example, in the 1880 presidential election, African 
American turnout in the South ranged from a low of 42% in 
Georgia to a high of 84% in Florida. VALELLY, supra, at 128. By 
the 1900 election, turnout had been reduced to the single digits 
in five southern states, and was well on its way to virtual ex­
tinction throughout the region. Id. By the mid-1890s, the num­
ber of African Americans in the Mississippi legislature had 
been reduced to zero (down from 64 in 1873), and just one Afri­
can American legislator remained in South Carolina. KLARMAN, 
supra, at 32. Similarly, local office-holding by African Ameri­
cans all but disappeared. Id.; see also VALELLY, supra, at 52 
(number of African American legislators in the South fell by 
nearly 80% between the end of Reconstruction and 1890).



13

The Court affirmed the dismissal of the indictment, 
holding (on a strained reading of the statute) that 
§§ 3 and 4 were unconstitutional because they were 
not limited to wrongful discrimination on account of 
race. Id. at 218—20.

In Cruikshank, decided the same day as Reese, the 
Court reversed the convictions of three Louisiana 
men under § 6 of the 1870 Enforcement Act for con­
spiracy to deny African Americans a variety of civil 
rights, including the right to vote. This case arose 
out of a disputed election that escalated into an 
armed conflict—the notorious “Colfax Massacre” of 
1873—in which whites seeking to expel African 
American and Republican officeholders stormed a 
courthouse in Grant Parish, Louisiana, killing more 
than 100 African Americans who had gathered to de­
fend the courthouse.17 In reversing the convictions, 
the Court concluded that many of the rights referred 
to in the indictment—including the right of peace­
able assembly, the right to bear arms, and the rights 
of life and personal liberty—were not granted or pro­
tected by the federal Constitution. 92 U.S. at 551-54. 
With respect to the convictions for hindering African 
Americans in the exercise of their voting rights, the 
Court concluded that the indictment had not ade­
quately alleged a racial motive: “We may suspect 
that race was the cause of the hostility; but it is not 
so averred.” Id. at 556.

17 See generally FONER, supra, at 437. For more detailed ac­
counts of the Colfax Massacre and its aftermath, see CHARLES 
Lane, The Day Freedom Died: The Colfax Massacre, the 
Supreme Court, and the Betrayal of Reconstruction 
(2008); Leanna Keith, The Colfax Massacre (2008).



14

Legal scholars may continue to debate whether 
Reese and Cruikshank were correctly decided. But 
historians have long agreed that these decisions ef­
fectively gutted the federal statutory scheme for the 
protection of African American voting rights. In his 
history of this Court, Charles Warren observed that:

“The practical effect of these decisions was to 
leave the Federal statutes almost wholly ineffec­
tive to protect the negro, in view of the construc­
tion of the Amendments adopted by the Court, 
the lack of adequate legislation in the Southern 
States, and the extremely limited number of 
rights which the Court deemed inherent in a citi­
zen of the United States, as such, under the Con­
stitution.”18

Professor Foner describes the Cruikshank decision as 
“devastating,” noting that it “rendered national 
prosecution of crimes committed against blacks vir­
tually impossible, and gave a green light to acts of 
terror where local officials either could not or would 
not enforce the law.”19 Professor William Gillette 
likewise notes that the Reese case “made future en­
forcement [of voting rights] vastly more difficult, and 
in some cases clearly impossible.”20 And a recently 
published history notes that the two decisions “lim­
ited the likelihood of intervention to prevent system­
atic abuses,” and that “ [i]n combination with the 
withdrawal of troops . . . this bar to oversight em­

18 2 Charles Warren, The Supreme Court in United States 
History 604 (1926).

19 FONER, supra, at 530—31.

20 W illiam Gillette, Retreat from Reconstruction 1869- 
1879, at 295 (1979).



15

powered mass intimidations and manipulations at 
the polls.”21 In short, the Court’s failure to protect 
African American voting rights played a significant 
role in the retrenchment that followed the end of Re­
construction.

The advances in minority political participation in 
the United States over the last four decades are un­
doubtedly more solid and substantial than the gains 
that were made in the post-Civil War era. Rut the 
history of the post-Reconstruction period should 
serve as a warning that the clock of progress can be 
turned back if the political and judicial branches of 
government fail to exercise sufficient vigilance. The 
comments of another prominent historian, Professor 
C. Vann Woodward, at the hearings on the 1982 ex­
tension of the Voting Rights Act are pertinent in this 
regard. Asked why the history of Reconstruction is 
relevant, Professor Woodward replied:

“ [I]t makes evident and clear that revolutions 
and advances in popular rights and democratic 
rights can be reversed; that history can move 
backward; that enormous gains can be lost and 
jeopardized, eroded, or diluted, and abridged in 
spite of the enormous cost that those advances 
have made.

“The first reconstruction cost us our greatest 
bloodshed and tragedy. It would seem that if 
anything has been paid for at a higher price, it 
was these advances. And yet, they were eroded 
and lost, and only a century later they were re­
stored.

21 KEITH, supra, at 158.



16

“My history teaches me that if it can happen 
once, it can happen again.”22

Given the lessons of history. Congress was properly 
unwilling in 2006 to allow § 5 to lapse. This Court 
should be equally reluctant to second-guess Con­
gress’s judgment that the protections afforded by § 5 
are still necessary in the present day.

II. Congress’s Determination That the Special 
Protections of § 5 Are Still Necessary in 
Covered Jurisdictions Is Reasonable and 
Entitled to the Highest Level of Deference.

In extending § 5, Congress recognized that the 
United States had made significant progress toward 
achieving political equality for minority voters in the 
41 years since the Voting Rights Act was enacted.23 
Congress also found, however, that racial discrimina­
tion and racially polarized voting continued to exist 
and that these problems were most severe in the ju­
risdictions covered by § 5. Based on its review of the 
evidence, Congress concluded that “40 years has not 
been a sufficient amount of time to eliminate the ves­
tiges of discrimination following nearly 100 years of 
disregard for the dictates of the 15th amendment

22 Extension of the Voting Rights Act: Hearings Before the Sub- 
comm. on Civil and Constitutional Rights of the House Comm, 
on the Judiciary, 97th Cong. 2027 (1981).
23 See Pub. L. No. 109-246, § 2(b)(1) (“Significant progress has 
been made in eliminating first generation barriers experienced 
by minority voters, including increased numbers of registered 
minority voters, minority voter turnout, and minority represen­
tation in Congress, State legislatures, and local elected offices. 
This progress is the direct result of the Voting Rights Act of 
1965.”).



17

and to ensure that the right of all citizens to vote is 
protected as guaranteed by the Constitution,” Pub. L. 
No. 109-246, § 2(b)(7). It further found that without 
continuation of § 5, minority voters “will be deprived 
of the opportunity to exercise their right to vote, or 
will have their votes diluted, undermining the sig­
nificant gains made by minorities in the last 40 
years.” Id. § 2(b)(9).

Appellant does not and cannot dispute that § 5 was 
a constitutional exercise of Congress’s power in 1965. 
Instead, appellant simply questions Congress’s as­
sessment of the extent of voting discrimination in 
covered jurisdictions as of 2006. Moreover, appellant 
does not dispute the underlying facts relied on by 
Congress, but merely contends that Congress drew 
the wrong conclusions from the facts before it. Appel­
lant views the record as showing that voting dis­
crimination “persists in haphazard and uncoordi­
nated instances in covered and uncovered jurisdic­
tions alike” (App. Br. at 43) and asks the Court to 
adopt that view.

But appellant’s argument misapprehends the rela­
tionship between Congress and the Court. This Court 
should not conduct a de novo review of the evidence 
considered by Congress. Nor should it substitute its 
own judgment about the extent of voting discrimina­
tion or the need for continued protections in covered 
jurisdictions for the considered judgment of the Leg­
islative Branch. The Constitution gives Congress the 
authority to review and weigh evidence as part of the 
legislative process and to make factual findings and 
predictive judgments based upon that evidence. Even 
if the Court might draw different conclusions if it 
were weighing the same evidence itself, it should still 
respect the judgment of Congress and the legislative



18

process. Giving Congress’s factual findings the defer­
ence to which they are entitled, the decision to ex­
tend § 5 for another 25 years was a reasonable and 
appropriate exercise of legislative authority.

A. Congress’s Factual Findings and Predic­
tive Judgments About the Extent of Vot­
ing Discrimination and the Continued 
Need for § 5 Are Entitled to Substantial 
Deference.

Turner Broadcasting System, Inc. v. FCC, 520 U.S. 
180 (1997) illustrates the level of deference that is 
appropriate in this case. In Turner, the Court af­
firmed the constitutionality of the “must-carry” pro­
visions of the Cable Television Consumer Protection 
and Competition Act against a First Amendment 
challenge. The Court explained:

“In reviewing the constitutionality of a statute, 
courts must accord substantial deference to the 
predictive judgments of Congress. Our sole obli­
gation is to assure that, in formulating its judg­
ments, Congress has drawn reasonable infer­
ences based on substantial evidence. . . .
[Substantiality is to be measured in this context 
by a standard more deferential than we accord to 
judgments of an administrative agency. We owe 
Congress’ findings deference in part because the 
institution is far better equipped than the judici­
ary to amass and evaluate the vast amounts of 
data bearing upon legislative questions. . . . This 
is not the sum of the matter, however. We owe 
Congress’ findings an additional measure of def­
erence out of respect for its authority to exercise 
the legislative power. Even in the realm of First



19

Amendment questions where Congress must 
base its conclusions upon substantial evidence, 
deference must be accorded to its findings as to 
the harm to be avoided and to the remedial 
measures adopted for that end, lest we infringe 
on traditional legislative authority to make pre­
dictive judgments when enacting nationwide 
regulatory policy.” Id. at 195—96 (citations and 
internal quotation marks omitted).

The Court further emphasized that “ [tjhe Constitu­
tion gives to Congress the role of weighing conflicting 
evidence in the legislative process,” id. at 199, and 
that the Court is not to “re-weigh the evidence de 
novo, or to replace Congress’ factual predictions with 
[its] own.” Id. at 211 (citation and internal quotation 
marks omitted).24 This case involves precisely the 
same kind of predictive judgments about ongoing 
harms and the need for remedial measures in a 
highly complex area that the Court addressed in 
Turner. And here, as in Turner, the Court should af­
ford substantial deference to Congress’s judgment.

Deference is especially appropriate here given the 
extensive efforts that Congress undertook to collect 
evidence and solicit the views of potentially affected 
parties. Before the bill that would become the 2006 
Act was introduced, the House Judiciary Commit­
tee’s Subcommittee on the Constitution held ten 
oversight hearings, at which it heard testimony from

24 Indeed, the Court made similar points in City of Boerne, not­
ing that “[j]udicial deference, in most cases, is based not on the 
state of the legislative record Congress compiles but ‘on due re­
gard for the decision of the body constitutionally appointed to 
decide.’” 521 U.S. at 531 (quoting Oregon v. Mitchell, 400 U.S. 
112, 207 (1970) (Opinion of Harlan, J.)).



20

39 witnesses, including “State and local elected offi­
cials, scholars, attorneys, and other representatives 
from the voting and civil rights community,” as well 
as receiving written testimony from the Department 
of Justice, governmental and non-governmental or­
ganizations and private citizens. H.R. Rep. No. 109- 
478, at 5. The Subcommittee then held two addi­
tional legislative hearings and received oral and 
written testimony from another seven witnesses. Id. 
The Senate Judiciary Committee and its Subcommit­
tee on the Constitution, Civil Rights and Property 
Rights held another ten hearings on the bill, and 
heard testimony from some 40 witnesses. S. Rep. No. 
109-295, at 2 (2006). The hearings included testi­
mony from several well-known critics of § 5 (some of 
whom now appear as amici in this Court). The views 
that appellant expresses here—that § 5 is no longer 
necessary, or that changes should be made to the 
bailout provisions or coverage formula, or that a 25- 
year extension is too long—were all heard and con­
sidered in the legislative process.25 But when Con­

25 See, e.g., Understanding the Benefits and Costs of Section 5 
Preclearance: Hearing Before the Senate Comm, on the Judici­
ary, 109th Cong. 7-9, 15-16, 204-210 (2006) (testimony and 
prepared statement of Abigail Thernstrom); Reauthorizing the 
Voting Rights Act’s Temporary Provisions: Policy Perspectives 
and Views From the Field: Hearing Before the Subcomm. on the 
Constitution, Civil Rights and Property Rights of the Senate 
Comm, on the Judiciary, 109th Cong. 9—11, 13—15, 225—38, 
252-64 (2006) (testimony and prepared statements of Gerald A. 
Reynolds and John J. Park, Jr.); Renewing the Temporary Pro­
visions of the Voting Rights Act: Legislative Options After LU- 
LAC v. Perry: Hearing Before the Subcomm. on the Constitution, 
Civil Rights and Property Rights of the Senate Comm, on the 
Judiciary, 109th Cong. 4—6, 10—11, 13—14, 135—74, 407—15



21

gress ultimately weighed the evidence, it reached a 
different conclusion, as it was entitled to do.

It is also significant that the decision to reauthor­
ize § 5 received overwhelming bipartisan support in 
both houses of Congress—including broad support 
from the elected representatives of covered jurisdic­
tions. The House of Representatives passed the 2006 
Act by a vote of 390-33, while the Senate vote was 
unanimous, 98-0.26 The Act was then signed into law 
by President George W. Bush—himself the former 
governor of a covered State. The Members of Con­
gress are intimately familiar with voting patterns 
and electoral practices in the States and districts 
they represent. These elected representatives are 
uniquely qualified to make decisions about the ex­
tent of ongoing discrimination in voting and the need 
for § 5, and their judgment should be accorded the 
highest level of deference.

B. Giving Congress’s Findings the Defer­
ence to Which They Are Entitled, the 
Decision To Extend § 5 Was Reasonable.

Congress made a number of factual findings in 
support of its decision to extend § 5. While appellant 
quibbles with Congress’s interpretation of the evi­
dence, Congress was entitled to draw its own reason­
able conclusions from the evidence before it. Viewing 
Congress’s findings in the proper deferential light, 
there is ample support for the extension of § 5.

(2006) (testimony and prepared statements of Roger Clegg, Mi­
chael Carvin, and Abigail Thernstrom).
26 152 Cong. Rec. H5207 (daily ed. July 13, 2006) (House vote); 
152 Cong. REC. S8012 (daily ed. July 20, 2006) (Senate vote).



22

1. Racially Polarized Voting Patterns
Congress found that “continued evidence of racially 

polarized voting in each of the jurisdictions covered 
by [§ 5] demonstrates that racial and language mi­
norities remain politically vulnerable, warranting 
the continued protection of the Voting Rights Act of 
1965.” Pub. L. 109-246, § 2(b)(3). Among other 
things, the House report cited and relied on numer­
ous court decisions finding legally significant racially 
polarized voting in several covered jurisdictions. H.R. 
Rep. No. 109-478, at 35. Appellant does not dispute 
the existence of racially polarized voting, but instead 
tries to downplay its significance by arguing that ra­
cially polarized voting is private action and therefore 
cannot be addressed by Congress. App. Br. at 48-49.

This argument misses the point. Racially polarized 
voting is not in itself unlawful, but it is highly sig­
nificant in determining the potential for unlawful 
discrimination and the need for remedial measures. 
Discriminatory voting practices depend on the exis­
tence of racially polarized voting for their success. If 
minority voters do not consistently display different 
voting preferences from the majority, the majority 
will have little incentive to engage in discriminatory 
conduct. But whenever minority voters do display 
consistently different preferences from the majority, 
there will be a strong temptation for the majority to 
try to limit the minority’s voting power and political 
influence. Thus, as the House Report found, “ [t]he 
potential for discrimination in environments charac­
terized by racially polarized voting is great.” H.R. 
Rep. No. 109-478, at 35. The undisputed facts that 
racially polarized voting continues to exist and that 
it is especially severe in covered jurisdictions 
strongly support Congress’s decision to extend § 5.



23

2. Attorney General Objections, Re­
quests for More Information and 
Withdrawals of Submissions

As evidence of continued discrimination, Congress 
also cited “the hundreds of objections interposed 
[and] requests for more information submitted fol­
lowed by voting changes withdrawn from considera­
tion by jurisdictions covered by [§ 5].” Pub. L. 109- 
246, § 2(b)(4)(A). Congress heard evidence that the 
Department of Justice had issued some 754 objec­
tions since 1982. S. Rep. No. 109-295, at 13-14; H.R. 
Rep. No. 109-478, at 22, 36. The House Report noted 
that more objections were lodged between 1982 and 
2004 than between 1965 and 1982 and that these ob­
jections “did not encompass minor inadvertent 
changes.” Id. at 21. It further found that:

“[Vjoting changes devised by covered jurisdic­
tions resemble those techniques and methods 
used in 1965, 1970, 1975, and 1982 including: 
enacting discriminatory redistricting plans; 
switching offices from elected to appointed posi­
tions; relocating polling places; enacting dis­
criminatory annexations and deannexations; set­
ting numbered posts; and changing elections 
from single member districts to at-large voting 
and implementing majority vote requirements.” 
Id. at 36.

The House Report cited numerous examples, includ­
ing several from the post-2000 redistricting cycle. Id. 
at 36-40. And it found that these proposed changes 
were “calculated decisions to keep minority voters 
from fully participating in the political process,” 
showing that “attempts to discriminate persist and



24

evolve, such that Section 5 is still needed to protect 
minority voters in the future.” Id. at 21.27

Appellant argues that Congress should have fo­
cused on the declining rate of objections as a per­
centage of the submissions received, rather than the 
total number of objections. App. Br. at 52. But this is 
precisely the kind of policy judgment that Congress 
is entitled to make as part of the legislative process. 
Congress reasonably chose to focus on the total num­
ber of objections, not the percentage. Moreover, Con­
gress did not base its conclusions solely on raw num­
bers—it also looked in detail at the type of voting 
changes that had drawn objections and the circum­
stances surrounding them. See H.R. Rep. No. 109- 
478, at 36-40.

Congress also found that in addition to formal ob­
jections, requests by the Justice Department for 
more information (“MIRs”) had “affected more than 
800 additional voting changes that were submitted 
for preclearance, compelling covered jurisdictions to 
either alter the proposal or withdraw it from consid­
eration altogether.” Id. at 40-41. Appellant argues 
that not all of these changes were necessarily dis­
criminatory, and that a jurisdiction’s decision to alter 
or withdraw its submission may indicate a good-faith 
effort to comply with the law. App. Br. at 53. But 
Congress could reasonably conclude that some of 
these changes likely were discriminatory, and that

27 See also H.R. Rep. No. 109-478, at 36 (“The Committee re­
ceived testimony indicating that these changes were intention­
ally developed to keep minority voters and candidates from suc­
ceeding in the political process.”)-



25

they would have been implemented but for § 5.28 In 
short, Congress reasonably found that the evidence 
of objections and MIR letters showed a pattern of on­
going discrimination warranting extension of § 5.

3. Section 5 Enforcement Actions
Congress also found that § 5 enforcement actions 

undertaken by the Department of Justice since 1982 
evidenced continued discrimination and that these 
actions had “prevented election practices, such as 
annexation, at-large voting, and the use of multi­
member districts, from being enacted to dilute mi­
nority voting strength.” Pub. L. 109-246, § 2(b)(4)(A). 
The House Report cites numerous examples. H.R. 
Rep. No. 109-478, at 41-44. Appellant gives short 
shrift to this evidence, arguing simply that the re­
cord of § 5 enforcement litigation shows that individ­
ual litigation can be an effective remedy for voting 
discrimination. App. Br. at 54-55. Congress could 
reasonably conclude, however, that absent the en­
forcement mechanism provided by § 5, many of these 
discriminatory voting mechanisms would have been 
implemented, and that the alternative of § 2 litiga­
tion would not provide an adequate safeguard. See 
discussion infra Part III.

4. Judicial Preclearance Actions
Congress found that “the number of requests for 

declaratory judgments denied by the United States 
District Court for the District of Columbia” further

28 The House Report notes that “[t]he location of the withdrawn 
voting changes parallels the patterns of objections interposed 
by the Department of Justice, occurring primarily within the 
‘Black Belt’ of the Southern States.” H.R. Rep. No. 109-478, at 
41.



26

evidenced continuing discrimination. Pub. L. 109- 
246, § 2(b)(4)(B). As the District Court noted, the 
evidence before Congress showed that “plaintiffs ei­
ther withdrew their proposed changes or lost on the 
merits in twenty-five declaratory judgment actions 
filed since 1982.” Northwest Austin Mun. Util, Dist. 
No. One v. Mukasey, 557 F. Supp. 2d 9, 50 (D.D.C. 
2008). Appellant questions whether one of those 
cases was properly included in the total, since the 
discriminatory conduct occurred before 1982. App. 
Br. at 55. But even disregarding this case, Congress 
could reasonably conclude that twenty-four unsuc­
cessful judicial preclearance suits demonstrates con­
tinued discrimination and an ongoing need for § 5.

5. Extent of § 2 Litigation in Covered 
Jurisdictions

Congress also cited “the continued filing of § 2 
cases that originated in covered jurisdictions” as evi­
dence of continued discrimination. Pub. L. 109-246, 
§ 2(b)(4)(C). The House Report noted that more than 
half of successful § 2 cases in the preceding 25 years 
had been filed in covered jurisdictions, even though 
these jurisdictions accounted for less than 39% of the 
country’s total population. H.R. Rep. No. 109-478, at 
53. Appellant views the record of § 2 litigation as 
evidence that § 5 is unnecessary. App. Br. at 47-48. 
But again, Congress was not required to draw that 
conclusion—it could reasonably conclude from the 
number of successful § 2 cases brought in covered ju­
risdictions that discriminatory practices continue to 
be a more significant problem in covered than in non- 
covered jurisdictions.



27

6. Appointment of Federal Observers
Congress also found that the “tens of thousands of 

Federal observers that have been dispatched to ob­
serve elections in covered jurisdictions” demon­
strated the “continued need for Federal oversight in 
jurisdictions covered by [§ 5].” Pub. L. 109-246, 
§ 2(b)(5). As the House Report explains, observers 
are assigned to a polling location under § 8 of the 
Voting Rights Act, 42 U.S.C. § 1973f, “only when 
there is a reasonable belief that minority citizens are 
at risk of being disenfranchised.” H.R. Rep. No. 109- 
478, at 44. It noted that this experience “demon­
strates that the discriminatory conduct experienced 
by minority voters is not solely limited to tactics to 
dilute the voting strength of minorities but continues 
to include tactics to disenfranchise, such as harass­
ment and intimidation inside polling locations.” Id. 
In at least one instance, the personal accounts pro­
vided by these observers led to a federal prosecution 
of county officials for discriminatory conduct against 
African Americans in polling locations. Id. This evi­
dence—which appellant does not address—further 
supports the reasonableness of Congress’s conclu­
sion.29

29 Amicus curiae Southeastern Legal Foundation argues that 
the dispatch of observers cannot support the decision to reau­
thorize § 5 because it is “not the result of actual, state- 
sponsored discrimination in conducting voting” and it is too 
great a leap to infer discrimination based on the Department of 
Justice’s reasonable belief of a risk of disenfranchisement. SLF 
Amicus Br. at 29-30. Congress, however, was entitled to take 
into account the Justice Department’s reasonable beliefs. More­
over, Congress considered not just the fact that observers were 
assigned but also the observations of those observers. See H.R. 
Rep. No. 109-478, at 44 (2006).



28

*k ic  *  *  "k

In sum, Congress had an ample factual record to 
support its conclusion that without continuation of 
§ 5, minority voters “will be deprived of the opportu­
nity to exercise their right to vote, or will have their 
votes diluted, undermining the significant gains 
made by minorities in the last 40 years.” Pub. L. 109- 
246, § 2(b)(9). Even if the evidence could be read to 
support a different conclusion, Congress was not re­
quired to adopt appellant’s view of the evidence. The 
judgment that Congress did make was reasonable 
and based on a careful consideration of the record, 
and the Court should defer to that judgment.
III. Case-by-Case Litigation Under § 2 Is Not a 

Sufficient Safeguard Against Voting Dis­
crimination.

Appellant’s argument that § 5 is no longer neces­
sary because § 2 provides a sufficient remedy against 
discriminatory voting procedures (App. Br. at 54-55) 
ignores the fundamental difference between the two 
sections. Section 2 litigation seeks to remedy dis­
criminatory practices that are already in place. Sec­
tion 5 is designed to prevent discriminatory practices 
from being implemented in the first place. Section 2, 
while a powerful and necessary tool, does not serve 
this preventive function.

Congress originally enacted § 5 based on substan­
tial experience showing that individual litigation 
alone was insufficient to solve the problem of voting 
discrimination. As the Court explained in Katzen- 
bach, prior to 1965 Congress had “repeatedly tried to 
cope with the problem by facilitating case-by-case 
litigation against voting discrimination.” 383 U.S. at 
313. But these efforts “proved ineffective for a num­



29

ber of reasons.” Id. at 314. The Court noted, for ex­
ample, that

“[vjoting suits are unusually onerous to prepare, 
sometimes requiring as many as 6,000 man­
hours spent combing through registration re­
cords in preparation for trial. Litigation has been 
exceedingly slow, in part because of the ample 
opportunities for delay afforded voting officials 
and others involved in the proceedings. Even 
when favorable decisions have finally been ob­
tained, some of the States affected have merely 
switched to discriminatory devices not covered by 
the federal decrees or have enacted difficult new 
tests designed to prolong the existing disparity 
between white and Negro registration.” Id.

Congress was well aware of this history when it 
extended § 5 in 2006. As stated in the House Report:

“The Committee knows from history that case- 
by-case enforcement alone is not enough to com­
bat the efforts of certain States and jurisdictions 
to discriminate against minority citizens in the 
electoral process. Moreover, the Committee finds 
that Section 2 would be ineffective to protect the 
rights of minority voters, especially in light of the 
increased activity under Sections 5 and 8 over 
the last 25 years. It is against this backdrop that 
the Committee finds it necessary to extend the 
temporary provisions for an additional 25 years.” 
H.R. Rep. No. 109-478, at 57.

Given the Nation’s unsuccessful prior experience 
with a pure case-by-case litigation approach, Con­
gress reasonably concluded that § 2, on its own, is 
not a sufficient safeguard against discriminatory 
conduct.



30

The problems with the case-by-case litigation ap­
proach that the Court discussed in Katzenbach are as 
significant today as they were in 1965. First, litiga­
tion under § 2 continues to be onerous and expensive. 
Congress heard evidence that § 2 litigation is “in­
credibly costly,” and that successful plaintiffs are 
rarely likely to recoup all of their attorneys’ fees.30 
Congress also heard evidence that the Federal Judi­
cial Center has ranked voting rights cases as among 
the most complex and time-consuming cases for 
judges—just ahead of antitrust cases and behind 
patent litigation.31

The reason that these cases are so costly and com­
plex is that, as the law has evolved, proof of a § 2 
claim requires not only extensive factual investiga­
tion, but also highly technical expert analysis on 
such issues as the extent of racially polarized voting, 
minority cohesion, and whether actual or proposed 
districts are reasonably compact.32 As a result, mi­

30 See, e.g., Voting Rights Act: Section 5 of the Act—History, 
Scope, and Purpose: Hearing Before the Subcomm. on the Con­
stitution of the House Comm, on the Judiciary, 109th. Cong. 92 
(2005) [hereinafter “History, Scope, and Purpose’j (testimony of 
Nina Perales).
31 See Understanding the Benefits and Costs of Section 5 Pre­
clearance: Hearing Before the Senate Comm, on the Judiciary, 
109th Cong. 80 (2006) (statement of Armand Derfner); Federal 
Judicial Ctr., 2003-2004 District Court Case Weighting Study: 
Final Report to the Subcomm. on Judicial Statistics of the 
Comm, on Judicial Resources of the Judicial Conference of the 
United States 5 (2005).
32 See, e.g., Thornburg v. Gingles, 478 U.S. 30, 52—53 & n.20 
(1986) (discussing statistical evidence presented by experts us­
ing methods of ecological regression analysis and extreme case



31

nority voters generally do not have the resources to 
bring § 2 litigation in the first place, much less suc­
cessfully prosecute such claims to their conclusion. 
By contrast, it is relatively easy for minority voters 
to participate in the § 5 administrative process. And 
where jurisdictions fail to comply with the preclear­
ance requirement, such that judicial action is neces­
sary, § 5 provides a much more simple and straight­
forward remedy because it does not require the kinds 
of complex inquiries that are necessary in § 2 cases. 
Rather, § 5 enforcement litigation turns simply on (a) 
whether a jurisdiction has changed a voting standard 
or procedure and (b) whether the change has been 
judicially or administratively precleared. “If a voting 
change subject to § 5 has not been precleared, § 5 
plaintiffs are entitled to an injunction prohibiting 
implementation of the change.” Lopez v. Monterey 
County, 519 U.S. 9, 20 (1996).

Second, because of its complexity, litigation under 
§ 2 is slow. Congress heard evidence that it takes two 
to five years to litigate an average § 2 lawsuit, and 
that “ [y]ou can’t do it any faster than that.”33 It can 
easily take one or two full election cycles—if not 
more—before a case is finally resolved. Moreover, 
outside of the unusual case where a preliminary in­
junction is granted, the defendant jurisdiction can 
continue to implement an alleged discriminatory 
practice while the litigation is under way. As the tes­
timony before Congress made clear, § 5 avoids this

analysis); GROFMAN, supra, at 82-108 (discussing methodology 
for defining and measuring racially polarized voting).

33 See, e.g., History, Scope, and Purpose, supra, at 101 (testi­
mony of Anita Earls).



32

problem because it prevents discriminatory practices 
from being implemented in the first place, and where 
jurisdictions disregard the law, an injunction can be 
obtained relatively quickly.34

Finally, as the Katzenbach court noted, one of the 
drawbacks of case-by-case litigation is that a State or 
political subdivision that is found to have engaged in 
discriminatory practices can then switch to a differ­
ent tactic that will have a similar discriminatory ef­
fect, forcing plaintiffs to begin the litigation process 
over again. As Congress found, § 5 prevents this from 
happening because it acts as a “shield that prevents 
backsliding from the gains previously won.” H.R. 
Rep. 109-478, at 53.

In sum, Congress reasonably concluded that § 2, by 
itself, would not provide a sufficient safeguard 
against the discrimination that continues to exist in 
the covered jurisdictions. Again, this Court should 
defer to that judgment.

CONCLUSION
In 1883, writing for a majority of this Court in the 

Civil Rights Cases, 109 U.S. 3 (1883), Justice Joseph 
P. Bradley powerfully expressed the view that the 
United States had reached a point at which African 
Americans no longer needed special legal protections 
to preserve their rights as citizens:

“When a man has emerged from slavery, and by 
the aid of beneficent legislation has shaken off 
the inseparable concomitants of that state, there 
must be some stage in the progress of his eleva­

34 See id. (testimony of Nina Perales).



33

tion when he takes the rank of a mere citizen, 
and ceases to be the special favorite of the laws, 
and when his rights as a citizen, or a man, are to 
be protected in the ordinary modes by which 
other men’s rights are protected.” Id. at 25.

History proved this view to be tragically wrong. 
Within a few years after this decision, African 
Americans in the South had lost virtually all of their 
most basic civil rights—including the right to vote. It 
took another eight decades before these rights finally 
began to be restored.

Appellant in this case advances a view similar to 
that of Justice Bradley, arguing that the wrongs of 
the past have been fully rectified and that there is no 
longer any need for special procedures to protect mi­
norities from discrimination in voting. Congress, 
however, conducted a thorough review of the evi­
dence and reached a very different conclusion. In 
light of this Nation’s history and the extensive evi­
dence establishing that discrimination and racially 
polarized voting continue to exist in covered jurisdic­
tions, Congress’s decision to extend § 5 for 25 years 
was wise and should not be disturbed by this Court.

The judgment of the District Court should be af­
firmed.



34

W illiam L. Taylor 
2000 M St ., N.W.
Suite 400
Washington, DC 20036 
(202) 659-5565

LlSA M . BORNSTEIN
Leadership Conference 

on Civil Rights 
1629 K St. N.W. 
Washington, DC 20006 
(202) 466-3311

Respectfully submitted,
Matthew M. Hoffman 

(Counsel of record) 
Stephen J. Pollak 
John Townsend Rich 
Ethan Z. Davis 
Christopher D. Jackson 
Goodwin Procter LLP 
901 New York Ave., N.W. 
Washington, DC 20001 
(202) 346-4000

Counsel for Amici Curiae

March 25, 2009



APPENDIX A
List of LCCR Member Organizations

A. Philip Randolph Institute
AARP
ACORN
ADA Watch
Advancement Project
African Methodist Episcopal Church
Alaska Federation of Natives
Alaska Inter-Tribal Council
Alliance for Retired Americans
Alpha Kappa Alpha Sorority, Inc.
Alpha Phi Alpha Fraternity, Inc.
American-Arab Anti-Discrimination Committee
American Association for Affirmative Action
American Association of People with Disabilities
American Association of University Women
American Baptist Churches, U.S.A.-National Minis­

tries
American Civil Liberties Union 
American Council of the Blind 
American Ethical Union
American Federation of Government Employees
American Federation of Labor-Congress of Industrial 

Organizations



2a

American Federation of State, County & Municipal 
Employees, AFL-CIO

American Federation of Teachers, AFL-CIO
American Friends Service Committee
American Jewish Committee
American Jewish Congress
American Nurses Association
American Postal Workers Union, AFL-CIO
American Society for Public Administration
American Speech-Language-Hearing Association
Americans for Democratic Action
Anti-Defamation League
Appleseed
Asian American Justice Center
Asian Pacific American Labor Alliance
Associated Actors and Artistes of America, AFL-CIO
Association for Education and Rehabilitation of the 

Blind and Visually Impaired
B’nai B’rith International
Brennan Center for Justice at New York University 

School of Law
Building & Construction Trades Department, AFL- 

CIO
Catholic Charities, USA 
Center for Community Change 
Center for Responsible Lending



3a

Center for Women Policy Studies 
Children’s Defense Fund
Church of the Brethren-World Ministries Commis­

sion
Church Women United 
Citizens’ Commission on Civil Rights 
Coalition of Black Trade Unionists 
Common Cause
Communications Workers of America 
Community Action Partnership 
Community Transportation Association of America 
DC Vote
Delta Sigma Theta Sorority
Disability Rights Education and Defense Fund
Division of Homeland Ministries-Christian Church 

(Disciples of Christ)
Epilepsy Foundation of America
Episcopal Church-Public Affairs Office
Evangelical Lutheran Church in America
FairVote: The Center for Voting and Democracy
Families USA
Federally Employed Women 
Feminist Majority
Friends Committee on National Legislation 
Global Rights: Partners for Justice 
GMP International Union



4a

Hadassah, The Women’s Zionist Organization of 
America

Hotel and Restaurant Employees and Bartenders In­
ternational Union

Human Rights Campaign
Human Rights First
Improved Benevolent & Protective Order of Elks of 

the World
International Association of Machinists and Aero­

space Workers
International Association of Official Human Rights 

Agencies
International Brotherhood of Teamsters
International Union, United Automobile Workers of 

America
Iota Phi Lambda Sorority, Inc.
Japanese American Citizens League 
Jewish Community Centers Association 
Jewish Council for Public Affairs 
Jewish Labor Committee 
Jewish Women International
Judge David L. Bazelon Center for Mental Health 

Law
Kappa Alpha Psi Fraternity 
Labor Council for Latin American Advancement 
Laborers’ International Union of North America 
Lambda Legal



5a

LatinoJustice PRLDEF
Lawyers’ Committee for Civil Rights Under Law
League of Women Voters of the United States
Legal Aid Society-Employment Law Center
Legal Momentum
Mashantucket Pequot Tribal Nation
Matthew Shepard Foundation
Mexican American Legal Defense and Education 

Fund
Na’Amat USA
NAACP Legal Defense and Educational Fund, Inc.
National Alliance of Postal & Federal Employees
National Association for Equal Opportunity in 

Higher Education
National Association for the Advancement of Colored 

People (NAACP)
National Association of Colored Women’s Clubs, Inc.
National Association of Community Health Centers
National Association of Human Rights Workers
National Association of Latino Elected & Appointed 

Officials
National Association of Negro Business & Profes­

sional Women's Clubs, Inc.
National Association of Neighborhoods
National Association of Protection and Advocacy Sys­

tems
National Association of Social Workers



6a

National Bar Association 
National Black Caucus of State Legislators 
National Black Justice Coalition 
National CAPACD
National Catholic Conference for Interracial Justice
National Coalition for the Homeless
National Coalition on Black Civic Participation
National Coalition to Abolish the Death Penalty
National Committee on Pay Equity
National Community Reinvestment Coalition
National Conference of Black Mayors, Inc.
National Congress for Community Economic Devel­

opment
National Congress for Puerto Rican Rights
National Congress of American Indians
National Council of Catholic Women
National Council of Churches of Christ in the U.S.
National Council of Jewish Women
National Council of La Raza
National Council of Negro Women
National Council on Independent Living
National Education Association
National Employment Lawyers Association
National Fair Housing Alliance
National Farmers Union



7a

National Federation of Filipino American Associa­
tions

National Gay & Lesbian Task Force
National Health Law Program
National Immigration Law Center
National Institute For Employment Equity
National Korean American Service and Education 

Consortium, Inc. (NAKASEC)
National Lawyers Guild
National Legal Aid & Defender Association
National Low Income Housing Coalition
National Organization for Women
National Partnership for Women & Families
National Puerto Rican Coalition
National Sorority of Phi Delta Kappa, Inc.
National Urban League
National Women’s Law Center
National Women’s Political Caucus
Native American Rights Fund
Newspaper Guild
Office of Communications of the United Church of 

Christ, Inc.
Omega Psi Phi Fraternity, Inc.
Open Society Policy Center
OCA (formerly known as Organization of Chinese 

Americans)



8a

Paralyzed Veterans of America 
Parents, Families, Friends of Lesbians and Gays 
People for the American Way 
Phi Beta Sigma Fraternity, Inc.
Planned Parenthood Federation of America, Inc. 
Poverty & Race Research Action Council (PRRAC) 
Presbyterian Church (USA)
Pride at Work
Progressive National Baptist Convention 
Project Equality, Inc.
Religious Action Center of Reform Judaism
Retail Wholesale & Department Store Union, AFL-

CIO
Secular Coalition for America 
Service Employees International Union 
Servicemembers Legal Defense Network 
Sigma Gamma Rho Sorority, Inc.
Sikh American Legal Defense and Education Fund 
Southeast Asia Resource Action Center (SEARAC) 
Southern Christian Leadership Conference 
Southern Poverty Law Center 
Teach For America
The Association of Junior Leagues International, Inc. 
The Association of University Centers on Disabilities 
The Justice Project



9a

The National Conference for Community and Justice
The National PTA
Union for Reform Judaism
Unitarian Universalist Association
UNITE HERE!
United Association of Journeymen & Apprentices of 

the Plumbing& Pipe Fitting Industry of the U.S. & 
Canada-AFL-CIO

United Brotherhood of Carpenters and Joiners of 
America

United Church of Christ-Justice and Witness Minis­
tries

United Farm Workers of America, AFL-CIO
United Food and Commercial Workers International 

Union
United Methodist Church-General Board of Church 

& Society
United Mine Workers of America
United States Conference of Catholic Bishops
United States Students Association
United Steelworkers of America
United Synagogue of Conservative Judaism
Women of Reform Judaism
Women’s American ORT
Women’s International League for Peace and Free­

dom
Workers Defense League



10a

Workmen’s Circle 
YMCA of the USA, National Board 
YWCA of the USA, National Board 
Zeta Phi Beta Sorority, Inc.



APPENDIX B 
Additional Signatories

In addition to LCCR and LCCREF, the following 
organizations are signatories to this Brief:

The Black Leadership Forum, Inc. (“BLF”) is an 
alliance of over fifty national African American civil 
rights and service organizations in the United 
States. Member organizations are linked together to 
strategically advocate for the legislative and policy 
interests of Black people on the international, Con­
gressional, state, county and municipal level. BLF 
was founded in 1977 under the leadership of Dr. 
Dorothy Height (Chair and President Emeritus of 
the National Council of Negro Women), Vernon Jor­
dan (National Urban League), Eddie Williams (Joint 
Center for Political and Economic Studies), Bill Lucy 
(Coalition of Black Trade Unionists), Dr. Ramona 
Edelin (National Urban Coalition) and Dr. Yvonne 
Scruggs-Leftwich (first executive director). Today’s 
BLF national leaders continue the legacy of leader­
ship passed to them by past advocates of progressive 
public policy.

Demos: A Network for Ideas and Action is a non­
profit, non-partisan organization that works to build 
a robust and inclusive democracy, with high levels of 
electoral participation and civic engagement; an 
economy where prosperity and opportunity are 
broadly shared and disparity is reduced; and a revi­
talized public sector that works for the common good. 
Removing barriers to political participation and en­
suring full representation of America’s diverse citi­
zenry are key to Demos’ goals. Demos actively sup­
ported Congress’ 2006 reauthorization of the protec­
tions of Section 5 of the Voting Rights Act and be-



2b

lieves those protections remain indispensable to the 
goal of full and equal access to political participation.

Equal Justice Society (“EJS”) is a national civil 
rights organization comprised of lawyers, scholars, 
advocates and citizens that seeks to protect civil 
rights and promote equal opportunity for all through 
law and public policy, public education and research. 
The primary mission of EJS is to combat the continu­
ing scourge of racial discrimination and inequality in 
America. Consistent with that mission, EJS has filed 
and joined amicus curiae briefs before this Court to 
ensure that antidiscrimination law and jurispur- 
dence continue to adequately address racial and so­
cietal inequities. In joining amici, EJS urges the 
Court to protect equal access to the political process 
by deferring to the reasonable judgment of the bipar­
tisan Congress to continue safeguards against voting 
discrimination.

The National Black Caucus of State Legislators 
(“NBCSL”) is a membership association representing 
more than 600 African American state legislators 
hailing from 42 states, the District of Columbia and 
the Virgin Islands. NBCSL members represent more 
than 50 million Americans of various racial back­
grounds. NBCSL monitors federal and state activity 
and provides this information to its members 
through policy symposiums and conferences. NBCSL 
recognizes that § 5 of the Voting Rights Act has been 
crucial in enabling thousands of Americans of color 
to vote for the candidates of their choosing. It has 
helped provide inclusion in a process that for too long 
excluded minorities, in particular African American 
voters. The NBCSL supports and asks that the Su­
preme Court uphold § 5 of the Voting Rights Act.



3b

The Rainbow PUSH Coalition advances civil and 
human rights and promotes enlightened civic par­
ticipation. It has offices in New York, California and 
Georgia, as well as other states, and its 300,000 
members and supporters live in every jurisdiction 
covered by Section 5 of the Voting Rights Act. Rain­
bow PUSH regularly conducts voter education activi­
ties in most covered jurisdictions.