Northwest Austin Municipal Utility Distr. One v. Holder Brief of Amici Curiae Alaska Native Voters

    No. 08-322

3n ®f)e

Supreme Court of tfje ®niteb States;
---------------- * -----------------

NORTHWEST AUSTIN MUNICIPAL 
UTILITY DISTRICT NUMBER ONE,

Appellant,
v.

ERIC H. HOLDER, JR., Attorney General, et al.,

Appellees.
---------- -----4---------------

On Appeal From The United States District Court 
For The District Of Columbia

BRIEF OF AMICI CURIAE 
ALASKA NATIVE VOTERS AND TRIBES 

IN SUPPORT OF APPELLEES

---------------- ♦----------------

James Thomas Tucker 
Counsel of Record 

Natalie Landreth 
Native American Rights Fund 

801 B Street, Suite 401 
Anchorage, Alaska 99501 

(907) 276-0680

March 25, 2009

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



1

STATEMENT OF INTEREST.................................. 1
SUMMARY OF ARGUMENT.................................. 6
ARGUMENT........................................    7

I. Section 5 remains a necessary and appro­
priate prophylactic measure to prevent 
voting discrimination against Alaska Na­
tives ..................................................................  11
A. Alaska continues to evade the re­

quirements of Section 5 ..........................  12
B. More Information Requests prevent

voting discrimination by Alaska...........  17
C. Polling place changes continue to dis­

criminate against Alaska N atives........ 19
D. A Section 5 objection in Alaska has

lasting impact in deterring future dis­
crimination against Alaska Natives....  22

II. Other substantive provisions of the VRA 
are inadequate substitutes for Section 5 .... 25

III. Educational discrimination that depresses 
Native turnout shows the closeness of fit 
between the Section 4 trigger and state­
wide coverage of Alaska................................  28
A. Alaska has denied equal educational 

opportunities to Alaska Natives...........  32

TABLE OF CONTENTS

Page



11

TABLE OF CONTENTS -  Continued
Page

B. Alaska Natives continue to suffer from 
high illiteracy rates and low voter par­
ticipation resulting from discrimina­
tion in education and voting.................  35

IV. Conclusion.......................................................  38



I l l

Cases

Brown v. Board o f Education, 347 U.S. 483
(1954)...................................................................... .....34

City o f Rome v. United States, 446 U.S. 156 
(1980)............................................................................ 30

Gaston County v. United States, 395 U.S. 285 
(1969)............................................................................ 31

Hickel v. Southeast Conference, 846 P.2d 38
(Alaska 1992).............................................................. 24

Hootch v. State Operated Sch. Sys., Civil No. 
72-2450, settled sub nom, ex rel. Tobeluk v.
Lind, (Alaska Super. Ct. Sept. 3, 1976)
(.Hootch Settlement)..................................... 32, 33, 34

Katzenbach v. Morgan, 384 U.S. 641 (1966)...............31
Lopez v. Monterey County, 525 U.S. 266 (1999)......... 30
Moore v. State, case no. 3AN-04-9756-CIV slip 

op. at 194-95 (Alaska Super. Ct. June 21,
2007)............................................................................. 34

Nick v. City o f Bethel, case no. 3:07-cv-0098- 
TMB (2007)..........................................................passim

Oregon v. Mitchell, 400 U.S. 112 (1970)...................... 31
Perkins v. Matthews, 400 U.S. 379 (1971)...........19, 20
South Carolina v. Katzenbach, 383 U.S. 308 

(1966)........................................................ 26, 27, 30, 31

TABLE OF AU TH ORITIES
Page



IV

Constitutional Provisions and Statutes

42 U.S.C. §1973aa-la...............  37
42 U.S.C. §1973b(a)...........................................  16
42 U.S.C. §1973b(b)................................................. 28,29
42 U.S.C. §1973b(c)........................................................29
42 U.S.C. §1973b(f)(l)................................................... 30
42 U.S.C. §1973b(f)(3)................................................... 29
42 U.S.C. §1973b(f)(4)................................................... 29
42 U.S.C. §1973b(4)(f)(4)......................................passim

42 U.S.C. §1973c............................................................. 19
42 U.S.C. §1973c(a)........................................................29
42 U.S.C. §19731(c)(3).............................  29
VRARA §2(b)(b), 120 Stat. 577-78............................... 38
VRARA §2(b)(4)(A), 120 Stat. 577............................... 12
VRARA §2(b)(7), 120 Stat. 577-78................................. 9
VRARA §2(b)(8), 120 Stat. 578.....................................38
VRARA §2(b)(9), 120 Stat. 577-78............................... 11
28 C.F.R. §55.18..............................................................37
28 C.F.R. §55.22..........   29
Alaska Const, of 1959, art. V, §1.................................. 8

TABLE OF AU TH ORITIES -  Continued

Page



V

Other A uthorities

121 Cong. Rec. H4716 (daily ed. June 2, 1975) 
(statement of Rep. Edwards).................................... 29

152 Cong. Rec. S7962 (daily ed. July 20, 2006) 
(statement of Sen. Specter)........................................10

H.R.Rep.No. 102-655 (1992)..........................................35
H.R.Rep.No. 109-478 (2006)............................... ..passim

S.Rep.No. 94-295 at 24 (1975)............................... 30, 33
S.Rep.No. 102-315 at 5 (1992).......................................32
40 Fed. Reg. 49,422 (Oct. 22, 1975)............................ 29
73 Fed. Reg. 18,553, 18,557 (Apr. 4, 2008)..........   2
Pub. L. No. 89-110, §4(a)-(b), 79 Stat. 437, 438 

(1965)............................................................................ 28
Pub. L. No. 91-285, 84 Stat. 314, §201 (1970)..............8
Pub L. No. 109-246, 120 Stat. 577, §2(b)(l)

(2006)...............................................................................8
Fannie Lou Hamer, Rosa Parks, and Coretta 

Scott King Voting Rights Reauthorization 
and, Amendments Act o f 2006 (Part II): Hear­
ing on H.R. 9 Before the Subcomm. on the 
Const, o f the House Comm, on the Judiciary,

TABLE OF AU TH O RITIES -  Continued
Page

109th Cong., 2d Sess., at 115, 116 (2006) (let­
ter from Alaska Lt. Gov. Loren Leman).............8, 13



VI

Modern Enforcement o f the Voting Rights Act, 
Hearing Before the Senate Comm, on the Ju­
diciary (Modern Enforcement), 109th Cong.,
2d Sess., at 18-20, 25-27, 29-30, 73-81, 124- 
26 (2006)............. ........................ ....................... passim

State of Alaska, Governor’s Comm, on Educ.,
An Overall Education Plan for Rural Alaska 
2 (rev. Feb. 26, 1966), at App. E............................... 32

Voting Rights Act: Evidence o f Continued Need, 
Hearing Before the Subcomm. on the Const, 
o f the House Comm, on the Judiciary (Con­
tinued Need), 109th Cong., 2d Sess., at 1308- 
1362 (2006)........................................................passim

U.S. Dep’t of Interior, Organization o f School 
Districts on Indian Reservations in Alaska,
63 Interior Dec. 333, 335 (Sept. 17, 1956)..............32

Terrence M. Cole, Jim Crow in Alaska: The 
Passage o f the Alaska Equal Rights Act o f

TABLE OF AU THORITIES -  Continued
Page

1945, in An A laska Anthology: Interpret­
ing the Past 314, 316-21 (Haycox & Man- 
gusso eds. 1996).........................................................7

Stephen E. Cotton, Thirty Years Later: The 
Molly Hootch Case, Sharing Our Pathways 
vol. 9, issue 4, at 4, 9 (Sept./Oct. 2004).................. 34

Paul F. Hancock & Lora L. Tredway, The 
Bailout Standard of the Voting Rights Act:
An Incentive to End Discrimination, 17 Urb.
Law. 379, 403, 415 (1985).........................................16



TABLE OF AU TH O RITIES -  Continued
Page

Stephen Haycox, William Paul, Sr, and the 
Alaska Voters’ Literacy Act o f 1925, 2 A laska 
Hist. 16 (1986-1987).....................................................8

Donn Liston, Gruening Rights Fight Recalled, 
A nchokage Daily N ews, June 28, 1974.................... 7

Diane Olthuis, The Molly Hootch Case: 1972, 
Emmonak, in It Happened in A laska 129 
(2006)............................................................................ 34

Natl Cong, of Am. Indians, Election 2008: 
Impact in Indian Country (Nov. 6, 2008), 
http://www.ncai.org/fileadmin/pdfElection2008 
AnalysisFINALCompatibilityMode.pdf..................36

State of Alaska, Division of Elections, Official 
Results of the Nov. 4, 2008 General Election, 
http Jlwww. elections. alaska.gov/08generaFdata/ 
results.pdf.....................................................................37

Letter from Christopher Coates, Chief, Voting 
Section to Gail Fenumiai, Director, Division 
of Elections, dated Aug. 1, 2008, at 1 (App. 6- 
13)........................................................... ........ 15, 16, 19

Letter from Christopher Coates, Chief, Voting 
Section, to Gail Fenumiai, Director, Division 
of Elections, dated July 14, 2008 (App.
1-5) .............................................................................. 20, 21, 22

Letter from Christopher Coates, Chief, Voting 
Section, to Gail Fenumiai, Director, Division 
of Elections, dated Sept. 10, 2008 (App. 14-15).......22

http://www.ncai.org/fileadmin/pdfElection2008


V l l l

TABLE OF AUTHORITIES -  Continued
Page

Letter from Christopher Coates, Acting Chief, 
Voting Section, to Gail Fenumiai, Director, 
Division of Elections, dated May 19, 2008,
Dkt. 292 at Exh. 199..................................................18



1

Alaska is one of only three states covered in its 
entirety by Section 4(f)(4) of the Voting Rights Act 
(“VRA”). Amici Curiae are Alaska Native, limited- 
English proficient (“LEP”) individual voters and 
tribal councils representing hundreds of voters who 
reside in Alaska. Amici have been disenfranchised by 
the State’s use of literacy tests, or their modern-day 
equivalent, since before statehood. That pattern has 
continued since the VRA was reauthorized in 2006. 
State officials failed to provide language materials 
and permit voter assistance for the amici, as required 
by its voting procedures that the Attorney General 
precleared in 1981. Amici were forced to file claims 
against the State in federal court for violating sub­
stantive provisions of the VRA and failing to obtain 
Section 5 preclearance for its changes to the 1981 
plan. In 2008, that court found that amici had “met 
their burden and established that they are likely to 
succeed on the merits of the language assistance 
claims brought under Sections 203 and 4(f)(4) of the 
VRA and the voter assistance claims brought under 
Section 208 of the VRA.” Dkt. 327, Order Granting

S T A T E M E N T  O F  IN T E R E S T 1

1 All parties have consented to the filing of this brief, as 
provided by Rule 37.3(a). Letters of consent have been filed with 
the Clerk of the Court. No counsel for a party authored the brief 
in whole or in part and no such counsel or a party made a 
monetary contribution intended to fund the preparation or 
submission of the brief. No person other than amici curiae, its 
members, or its counsel, made a monetary contribution to its 
preparation or submission.



2

Mot. for Prelim. Inj. (“Nick PI Order”), Nick v. City o f 
Bethel, case no. 3:07-cv-0098-TMB (D. Alaska filed 
July 30, 2008). Amici’s parallel Section 5 claims have 
been stayed pending the outcome of this case.

Amici submit their brief to expressly address 
Question Presented 2 as posed by the Respondent 
United States: whether “discrimination against
minority voters continues to be a problem in covered 
jurisdictions” and whether “Section 5 remains a 
valuable tool in preventing, remedying and deterring 
such discrimination.” Petitioner argues that voting 
discrimination only “persists in haphazard and 
uncoordinated instances” that is insufficient to justify 
renewing Sections 4 and 5. Petitioner’s Br. at 42-43. 
However, Alaska’s recent violations of the VRA dem­
onstrate that discrimination still exists and that 
those sections remain vital remedial measures to 
provide Alaska Natives with equal registration and 
voting opportunities.

Amici Anna Nick, Billy McCann, David O. David, 
and Arthur Nelson are LEP Alaska Native voters who 
reside in the Bethel Census Area of Alaska and whose 
primary language is Yup’ik. Amici Kasigluk Tradi­
tional Council, Kwigillingok I.R.A. Council, Tuluksak 
Tribal Council, and Tuntutuliak Traditional Council 
are elected governments for federally recognized 
tribes in the Bethel Census Area. See 73 Fed. Reg. 
18,553, 18,557 (Apr. 4, 2008). The population of the 
Bethel Census Area is 85.5 percent American Indian 
and Alaska Native. Among the citizen voting age 
population in the Bethel Census Area, 20.82 percent



3

are LEP. Almost a quarter of LEP voters there are 
illiterate, nearly sixteen times the national illiteracy 
rate. These barriers are not the result of happen­
stance, but are the product of educational discrimina­
tion by the State that has not yet been eradicated. 
Amici each were denied public school growing up 
because Alaska did not provide complete educational 
services in their villages until as recently as the 
1980s.

For example, one of the amici, Anna Nick was 
born in 1939 in Nunapichuk, a remote Yup'ik village 
inaccessible by road and without any hotels, stores, 
electricity or running water. See Dkt. 201, First Am. 
Compl. *16 (“Nick Am. Compl.”), Nick, supra (2008). 
Like most Alaska Natives in the region, she relies 
upon a subsistence lifestyle of hunting and fishing for 
most of her food. When she was growing up, there 
were no schools in Nunapicthuk or any other Yup’ik- 
speaking village in the Bethel Census Area, denying 
Ms. Nick and others like her the opportunity to learn 
to speak or read English. See infra Part III(A). Only a 
handful of children from her village were willing and 
able to leave their homes and travel to one of the few 
distant boarding schools. See id. Ms. Nick left home 
briefly to attend school but only reached the fifth 
grade. Nick Am. Compl., supra, at 16. The remaining 
amici also are the victims of Alaska’s unequal educa­
tion system; Mr. McCann completed the second grade, 
Mr. Nelson completed the third grade, and Mr. David 
completed the fourth grade. Id. at <n<[[7-9. There are 
thousands of Alaska Native voters just like them.



4

While Congress was reauthorizing the VRA to 
cover Alaska Natives in 1975, a landmark equal 
protection case was pending against the State to 
remedy the lack of education available to Alaska 
Natives. It was brought by a class of Alaska Native 
parents and students whose villages did not have 
secondary schools. See infra Part III(A). Although the 
case was settled in 1976, it was not until the early 
1980s that the State legislature appropriated funds to 
pay for the construction of the first secondary schools 
in Native villages; the last of those schools were not 
completed until the mid-1980s. Because of the dis­
criminatory education system, with very few excep­
tions, only those Alaska Natives born in the 1970s or 
later would have any opportunity to receive a high 
school diploma.

Alaska’s coverage under Section 4(f)(4) of the Act 
has proven to be an unfulfilled promise to Alaska 
Natives to help them overcome the State’s discrimi­
nation. Alaska ignored the mandate of providing 
language assistance under Section 4(f)(4) for the first 
six years after it went into effect. In 1981, the De­
partment of Justice reminded the State that it was 
covered statewide for Alaska Native languages and 
was required to submit a minority language assis­
tance plan under Section 5. The State complied with 
the request by obtaining preclearance for a plan that 
it then did not implement. See infra Parts I(A)-(B). 
During the nearly three decades since then, amici 
and thousands of other Alaska Native LEP voters 
tried to vote, often skipping ballot questions and 
initiatives they could not understand. Ms. Nick



served as a poll worker in an effort to assist Yup’ik 
voters who could not read or speak English, but was 
forced to quit because she could not understand most 
of the election materials herself. Nick Am. Compl., 
supra, at f  6. Alaska’s violations of Section 4(f)(4) and 
its failure to submit for preclearance the changes to 
its unused 1981 language plan have resulted in 
Alaska Native turnout that consistently trails state­
wide turnout by 20 percent or more.

If Alaska had complied with Section 5’s mandate 
and submitted the unprecleared changes in its lan­
guage and voter assistance program in the Bethel 
region, amici’s case would have been unnecessary. 
After two years, $150,000 in out-of-pocket costs, 20 
depositions, and a docket that now consists of almost 
600 entries, amici still do not have relief; even when 
secured, relief will only apply to the 15,000 persons in 
the Bethel Census Area. If Alaska had complied with 
Section 5’s mandate, it would have obviated the need 
for this protracted and costly litigation and helped 
LEP Alaska Natives statewide. The Justice Depart­
ment could have identified that Alaska’s voting 
changes had a discriminatory purpose or effect and 
prevented those procedures from ever being imple­
mented in the first place. Today, all Alaska Natives 
would be able to exercise their fundamental right to 
vote. Unfortunately, that will not occur under the 
“case-by-case” approach advocated by Petitioner, 
which would perpetuate the exclusion of Alaska 
Natives from the political process. Petitioner’s Br. at 
55. Section 5 remains vital to prevent that draconian 
result. See infra Part II.



6

Section 5 continues to be essential to protect 
amici from Alaska’s discriminatory practices. State 
officials have been recalcitrant to correct identified 
violations of the VRA. See Nick PI Order, supra. They 
have evaded the requirements of preclearance, rou­
tinely submitting discriminatory voting changes and 
then withdrawing them when the U.S. Department of 
Justice makes additional inquiries. See infra Parts 
I(A)-(B). They have attempted to realign predomi­
nantly Native polling places that are sometimes more 
than 70 miles apart and inaccessible except by air or 
boat. See infra Part 1(C). Absent Section 5, the fragile 
gains that Alaska Natives have made are at risk. See 
infra Part 1(D). Moreover, other substantive provi­
sions of the VRA are inadequate substitutes for 
Section 5 because of the presence of ongoing discrimi­
nation by the State and the extraordinary costs that 
amici have incurred by trying to stop it through a 
case-by-case approach. See infra Part II. Preclearance 
helps ensure that amici’s fundamental right no longer 
has to be conditioned on a federal lawsuit. Finally, the 
record from the 2006 reauthorization of the VRA 
refutes Petitioner’s argument that the Section 4 
coverage formula is outdated. Evidence from Alaska 
shows that the measures resulting in coverage, 
educational discrimination and low voter turnout, 
remain barriers for amici and other Alaska Natives. 
See infra Part III. Therefore, the Court should affirm 
the judgment of the District Court.

S U M M A R Y  O F  A R G U M E N T



7

ARGUM ENT

Section 5 is necessary to remedy ongoing dis­
crimination and the present effects of past discrimi­
nation against amici and other Alaska Natives. The 
trigger in Section 4 narrowly targets coverage under 
Section 5 of the Act to areas where it is needed most. 
All of Alaska is covered because of the impact that 
discrimination against Alaska Natives continues to 
have on political participation statewide. Amici and 
other Alaska Natives like them who were denied 
access to public schools suffer from illiteracy and lack 
of English fluency that prevents them from exercising 
their fundamental right to vote without assistance. 
Section 5 remains essential to compel Alaska to 
remove the disabling effects of its discrimination 
against Alaska Natives. State officials have not done 
so absent enforcement of Section 5, such as amici’s 
pending claim against Alaska. The future of amici’s 
enforcement action awaits this Court’s decision.

Discrimination is not as overt as it once was, 
when Alaska Natives were barred from every aspect 
of political and social life by signs that read “No 
Natives or Dogs Allowed.”2 Donn Liston, Gruening 
Rights Fight Recalled, Anchorage Daily News, June 
28, 1974. Officially, Alaska Native voters are not

2 Public places such as hotels, playgrounds, swimming 
pools, and theaters were segregated until 1945. See Terrence M. 
Cole, Jim Crow in Alaska: The Passage o f the Alaska Equal 
Rights Act of 1945, in An Alaska Anthology: Interpreting the 
Past 314, 316-21 (Haycox & Mangusso eds. 1996).



8

supposed to be required to pass an English literacy 
test.3 Nonetheless, the effects of State discrimination 
against Alaska Natives linger, along with other forms 
of unequal treatment that continue today.

When Congress renewed the expiring provisions 
of the VRA in 2006, it found that “significant pro­
gress” had been made towards reducing certain 
barriers to Alaska Natives. Fannie Lou Hamer, Rosa 
Parks, and Coretta Scott King Voting Rights Reau­
thorization and Amendments Act o f 2006 (“VRARA”), 
Pub L. No. 109-246 §2(b)(l), 120 Stat. 577 (2006). 
Although Native turnout remained “among the lowest 
of all communities in the U.S.,” their participation 
rates were “closer than ever” to non-Natives. 
H.R.Rep.No. 109-478 at 20, reprinted in 2006 
U.S.C.C.A.N. 630. The number of Native candidates 
had increased, resulting in “the election of seven new 
Alaskan Natives to the Alaska State legislature.” Id. 
Those examples of “increased participation levels” 
were “directly attributable to the effectiveness of the

3 See generally Alaska Const, of 1959, art. V, §1 (repealed) 
(requiring voters to be “able to read or speak the English 
language as prescribed by the Legislature”); Stephen Haycox, 
William Paul, Sr., and the Alaska Voters’ Literacy Act of 1925, 2 
Alaska Hist. 16 (1986-1987) (describing Alaska’s literacy test 
law of 1925 and its 1927 federal counterpart, which required 
that anyone who did not vote in the 1924 election had to be “able 
to read and write the English language”). Alaska’s constitutional 
literacy test remained in effect until it was repealed by the 1970 
amendments to the VRA. See Pub. L. No. 91-285, 84 Stat. 314 
(June 22, 1970).



9

VRA’s temporary provisions.” Id. at 21, reprinted in 
2006 U.S.C.C.A.N. 630-31.

Despite that progress, the evidence also demon­
strated there had been insufficient “time to eliminate 
the vestiges of discrimination” against Alaska Na­
tives. VRAEA §2(b)(7), 120 Stat. 577-78. Discrimina­
tion was “more subtle” than the methods previously 
used but the results were “the same,” diminishing the 
political participation of Native voters. H.R.Rep.No. 
109-478 at 6, reprinted in 2006 U.S.C.C.A.N. 620. As 
of 2000, no Native candidate had “been elected to 
office from a majority white district.” Id. at 34, re­
printed in 2006 U.S.C.C.A.N. 638. The lack of white 
support resulted “in a disparity between the number 
of white elected officials and the number” of Alaska 
Natives elected to office. Id. Native voters also con­
tinued “to experience hardships and barriers to 
voting and casting ballots because of their limited 
abilities to speak English and high illiteracy rates ... 
particularly among the elders.” Id. at 45-46, reprinted 
in 2006 U.S.C.C.A.N. 650-51. Court decisions found 
“degraded educational opportunities” for Alaska 
Natives, resulting in graduation rates that lagged far 
behind non-Natives. Id. at 50-51, reprinted in 2006 
U.S.C.C.A.N. 651. The record of discrimination in 
Alaska was substantial. See Voting Rights Act: Evi­
dence o f Continued Need, Hearing Before the Sub- 
comm. on the Const, o f the House Comm, on the 
Judiciary (Continued Need), 109th Cong., 2d Sess., at 
1308-1362 (2006); Modern Enforcement o f the Voting 
Rights Act, Hearing Before the Senate Comm, on the



10

Judiciary (Modern Enforcement), 109th Cong., 2d 
Sess., at 18-20, 25-27, 29-30, 73-81, 124-26 (2006).

The State’s legacy of disenfranchisement remains 
manifest in the amici, who are victims of unequal 
educational opportunities and have been denied 
registration and voting opportunities because of their 
illiteracy and limited-English proficiency. Alaska 
Natives such as the amici continue to encounter 
English-only election practices that impose the very 
sort of English literacy tests or devices that the VRA 
was intended to eradicate. H.R.Rep.No. 109-478 at 
52, reprinted in 2006 U.S.C.C.A.N. 652-53. Such 
barriers contributed to Alaska Native voter turnout of 
just 44.8 percent in the 2004 election, compared to 
non-Native turnout of 68.4 percent. 152 Cong. Rec. 
S7962 (daily ed. July 20, 2006) (statement of Sen. 
Specter). Turnout in some Native villages was as low 
as 12 percent. Continued Need, supra, at 1333. State 
officials steadfastly refused to correct any of these 
violations until they were compelled to do so in 2008 
by a federal court. Despite the relief that amici ob­
tained, those remedies only apply to Natives residing 
in a single Census Area of Alaska. Thousands of other 
Alaska Natives in other parts of the State continue to 
face barriers to registration and voting that Section 5 
could resolve without the need for additional burden­
some litigation that would delay their relief for many 
more years.

Alaska is demonstrative of the congressional 
finding that without the continuation of the VRA’s 
protections, “racial and language minority citizens



11

will be deprived of the opportunity to exercise their 
right to vote, or will have their votes diluted, under­
mining the significant gains made by minorities in 
the last 40 years.” VRARA §2(b)(9), 120 Stat. 577-78. 
The record from Alaska establishes the constitution­
ality of the Act’s reauthorized provisions, regardless 
of whether the Court applies a rational basis or a 
congruence and proportionality standard of review. 
Far from an unnecessary relic of a bygone era, Sec­
tion 5 remains essential to combat the present reali­
ties of voting discrimination and educational 
discrimination against amici and other Alaska Na­
tives.

I. Section 5 remains a necessary and appro­
priate prophylactic measure to prevent 
voting discrim ination against Alaska Na­
tives.

Section 5 is a “vital prophylactic tool” that pro­
tects the amici “from devices and schemes that con­
tinue to be employed” in Alaska, which is covered 
statewide for Alaska Natives. H.R.Rep.No . 109-478 at 
21, reprinted in 2006 U.S.C.C.A.N. 631. Preclearance 
has protected Alaska Natives from discriminatory 
redistricting practices, closure of necessary polling 
sites, and retrogressive language assistance proce­
dures. The importance of Section 5 cannot be meas­
ured just by the number of objections, but also “the 
number of voting changes that have never gone 
forward as a result of Section 5.” Id. at 24, reprinted 
in 2006 U.S.C.C.A.N. 633. Its “deterrent effect” is



12

“substantial.” Id. In renewing Section 5, Congress 
examined evidence of “continued discrimination” 
including objections that were interposed, “requests 
for more information submitted followed by voting 
changes withdrawn from consideration,” and actions 
brought to enforce the mandate in Alaska. VRARA 
§2(b)(4)(A), 120 Stat. 577. That evidence sustains the 
provision’s constitutionality.

A. Alaska continues to evade the require­
ments of Section 5.

Petitioner’s characterization of the record sup­
porting Section 5 is deeply flawed, particularly as 
that evidence pertains to Alaska. Petitioner makes a 
categorical generalization that the VRA is “based on 
an illegitimate presumption of resolute intransi­
gence,” contending that “[t]he record Congress 
amassed in 2006 does not demonstrate that covered 
jurisdictions continue to evade enforcement.” Peti­
tioner’s Br. at 2, 13. Petitioner’s argument ignores the 
rich, detailed examples of covered jurisdictions such 
as Alaska that continue to evade the requirements of 
Section 5. See H.R.Rep.No. 109-478 at 41-44, re­
printed in 2006 U.S.C.C.A.N. 646-48.

Congress received evidence demonstrating that 
State officials have been the single greatest barrier 
that Alaska Natives face. The House Report ex­
plained that while there had been “substantial strides 
... toward racial equality, the attitudes and actions of 
some States ... continue to fall short.” H.R.Rep.No.



13

109-478 at 56, reprinted in 2006 U.S.C.C.A.N. 657. 
Alaska’s election officials demonstrated that recalci­
trance. In 2006, Lieutenant Governor Loren Leman, 
who was responsible for administering elections, was 
presented with evidence of the State’s lack of lan­
guage assistance and failure to obtain preclearance 
for its English-only election procedures. Instead of 
investigating those issues, he rejected them after 
making a single telephone call to one English- 
speaking voter. See Fannie Lou Hamer, Rosa Parks, 
and Coretta Scott King Voting Rights Reauthorization 
and Amendments Act o f 2006 (Part II): Hearing on 
H.R. 9 Before the Subcomm. on the Const, o f the 
House Comm, on the Judiciary, 109th Cong., 2d Sess., 
at 115, 116 (2006) (letter from Alaska Lt. Gov. Loren 
Leman) (commenting on Continued Need, supra, at 
1308-62). He then informed the House that Alaska 
was “in compliance” and “[hjappily so” with the VRA. 
Id. at 115.

A federal court found otherwise in 2008, citing 
the State’s lack of responsiveness in remedying 
discrimination against Alaska Natives and enjoining 
further violations of the Act. See Nick PI Order, 
supra. The evidence showed that the State’s 1981 
precleared language assistance plan had “never been 
complied with in Alaska,” except for the narrow 
remedy for a single election in Barrow a decade 
earlier. Modern Enforcement, supra, at 26. In over 
three decades, Alaska had aired only two incomplete 
and poorly translated election announcements over 
the radio in Yup’ik, compelling private parties to



14

obtain self-help to get information. Nick PI Mot., 
supra, at 6-8. The State provided all voter registra­
tion and voting information in English-only, despite 
Alaska’s use of touch-screen voting units capable of 
“speaking” eight different languages. Id. at 10-11. 
Between 2000 and 2007, translators generally were 
unavailable and untrained. Id. at 11-14. Alaska 
provided no Yup’ik translations, forcing poll workers 
to translate ballots written in college-level English 
“on the spot.” That led to widely diverging transla­
tions that denied amici and other voters effective 
language assistance even when translators were 
available. Id. at 7, 15-16.

Alaska election officials began looking into im­
plementing a language assistance program after 
being informed of their violations. However, the State 
Director of Elections “put it aside” to prepare for 
elections in 2006 and 2007. Id. at 20. She claimed, 
“Language assistance is not the only assistance that 
the Division of Elections provides.... We have ... the 
demands of every voter in the state. I think it would 
[be] important to balance all of those needs and our 
resources to be able to make that determination.” Id. 
Alaska’s justification is particularly telling. State 
officials view compliance with the VRA as optional or 
extraneous to an election, rather than an integral 
part of it. Therefore, LEP Yup’ik voters and tribal 
councils from the Bethel region were forced to sue the 
State in 2007 to obtain relief. See Dkt. 1, Compl., 
Nick, supra (filed June 11, 2007).



15

In July 2008, a federal court issued a preliminary 
injunction to bar Alaska from further violations of the 
VRA. See Nick PI Order, supra. The court found that 
“State officials became aware of potential problems 
with their language-assistance program in the spring 
of 2006,” but their “efforts to overhaul the language 
assistance program did not begin in earnest until 
after this litigation.” Id. at 8. The court reasoned that 
an injunction was needed for three reasons: (1) the 
State had been covered by Section (4)(f)(4) “for many 
years”; (2) “the State lacks adequate records to docu­
ment past efforts to provide language assistance to 
Alaska Native voters”; and (3) the State’s post­
litigation efforts to come into compliance were “rela­
tively new and untested.” Id. Therefore, the court 
concluded that “the evidence of past shortcomings 
justifies the issuance of injunctive relief to ensure 
that Yup’ik-speaking voters have the means to fully 
participate in the upcoming State-run elections.” Id. 
at 8-9. The Nick injunction remains in place today.

The U.S. Department of Justice also found strong 
evidence of Alaska’s violations. The Department 
observed that the “last precleared bilingual election 
procedures” for Alaska Natives were under a plan 
“precleared by letter dated October 5, 1981.” App. 6- 
13, Letter from Christopher Coates, Chief, Voting 
Section to Gail Fenumiai, Director, Division of Elec­
tions, dated Aug. 1, 2008. However, Department 
officials noted that discovery in amici’s case against 
Alaska, “admissions by State elections officials,” and 
assertions by officials in a letter withdrawing the



16

changes indicated that “Alaska is not currently fully 
implementing the 1981 plan and is instead imple­
menting new and different procedures.” Id. The 
Department requested that Alaska inform it of the 
action the State planned “to take regarding the 
changes affecting voting that have not been submit­
ted for judicial review or preclearance.” Id. State 
officials ignored the Department’s request. Amici 
therefore were compelled to pursue their Section 5 
claim against Alaska, which has been stayed pending 
the Court’s decision in this case.

Alaska’s bailout history likewise reflects the 
State’s evasion of Section 5. “In 1982, Congress 
amended the bailout provision to encourage jurisdic­
tions to end their discriminatory practices and to 
integrate minority voters into the electoral process.” 
H.R.Rep.No. 109-478 at 25, reprinted in 2006 
U.S.C.C.A.N. 634. The bailout standard requires that 
jurisdictions demonstrate that they have been free of 
voting discrimination for ten years. See 42 U.S.C. 
§1973b(a). Alaska unsuccessfully attempted to bailout 
in 1978 and 1984, but dismissed its lawsuit on both 
occasions after the evidence showed that the State 
denied equal electoral opportunities to Native voters. 
See Paul F. Hancock & Lora L. Tredway, The Bailout 
Standard o f the Voting Rights Act: An Incentive to 
End Discrimination, 17 Urb. Law. 379, 403, 415 
(1985). Evidence of the State’s present failure to 
comply with the VRA explains why. Alaska’s covered 
status “has been and continues to be within the 
control of the jurisdiction.” H.R.Rep.No. 109-478 at



17

25, reprinted in 2006 U.S.C.C.A.N. 634. However, its 
ongoing violations have made it clear that it is not a 
jurisdiction with “a genuinely clean record” that will 
allow it to terminate coverage. Id.

The congressional record in 2006 highlights the 
continuing need for Section 5 in Alaska. It does not 
suffer from “utter hollowness” that “ignores the 
reality of today’s America,” but instead reflects the 
reality that despite some important progress, much 
work is left to be done to fully integrate Alaska Na­
tives into the political process. Petitioner’s Br. at 43- 
44. Alaska’s persistent failure to implement “the 
mandate placed on it in 1975” makes it “no less 
deserving of coverage today than it was in 1975.” 
Modern Enforcement, supra, at 79.

B. More Information Requests prevent 
voting discrim ination by Alaska.

More Information Requests (MIR) play an impor­
tant role in preventing voting discrimination against 
Alaska Natives. MIRs are an “administrative mecha­
nism” used by the Justice Department to obtain 
additional information needed to determine whether 
preclearance of a voting change is warranted under 
Section 5. H.R.Rep.No. 109-478 at 40, reprinted in 
2006 U.S.C.C.A.N. 645. Their use forces “covered 
jurisdictions to take action” that can include with­
drawing “a proposed change from consideration 
because it is discriminatory,” submitting “a new or



18

amended non-discriminatory voting plan,” or simply 
not making a change at all. Id.

Alaska routinely withdraws discriminatory 
voting changes after receiving an MIR, a pattern that 
has continued since reauthorization. In March 2008, 
Alaska attempted to circumvent the language claims 
brought in the Nick litigation. State officials made a 
short submission of a language plan without any 
explanation for their failure to implement the plan 
precleared by the Department in 1981. See First Am. 
Compl., Nick, supra, at Attachs. B-C. In May 2008, 
the Justice Department issued a detailed MIR letter 
identifying 16 categories of facts suggesting the 
absence of enforcement of the prior plan. See Dkt. 292 
at Exh. 199, Letter from Christopher Coates, Acting 
Chief, Voting Section, to Gail Fenumiai, Director, 
Division of Elections, dated May 19, 2008, Nick, 
supra. Instead of responding, the State abruptly 
withdrew its submission, preventing implementation 
of its retrogressive procedures. See Dkt. 292 at Pis.’ 
Exh. 271, Withdrawal Letter dated June 9, 2008, 
Nick, supra. In the process, Alaska derided the re­
quest, arguing that “DOJ’s questions on past prac­
tices are inappropriate.” Dkt. 249, at 9 n.19, Opp. to 
Mot. for Prelim. Inj., Nick, supra.

State officials later attempted to circumvent the 
MIR by submitting the State’s changes piecemeal, 
which the Department also rejected. According to the 
Department, it was necessary to review the entire 
plan together to determine whether it provided 
effective equal registration and voting opportunities



19

to Alaska Natives. See App. 6-13. Alaska’s experience 
with MIRs refutes Petitioner’s argument that “a 
jurisdiction’s voluntary abandonment of a change 
after a more-information request ... evidences an 
attempt to comply with constitutional guarantees, not 
to evade their enforcement.” Petitioner’s Br. at 53.

C. Polling place changes continue to dis­
criminate against Alaska Natives.

Petitioner downplays the important role that 
Section 5 plays in preventing discrimination by 
requiring that all voting changes be submitted for 
preclearance. See 42 U.S.C. §1973c. Without citing 
any evidence to support its conclusion, Petitioner 
criticizes Section 5 for “not confining itself to such 
issues as redistricting but continuing to apply to the 
most minute and obviously benign changes like 
moving a polling place from a private garage to a 
public school.” Petitioner’s Br. at 14.

This Court has rejected the narrow impact that 
Petitioner contends that polling place changes can 
have on minority voter participation. See Perkins v. 
Matthews, 400 U.S. 379 (1971). The reason for requir­
ing preclearance of polling place changes is apparent: 
“The abstract right to vote means little unless the 
right becomes a reality at the polling place on election 
day.” Id. at 387. The Court reasoned that “there 
inheres in the determination of the location of polling 
places an obvious potential for 'denying or abridging 
the right to vote on account of race or color.’ ” Id. at



20

388. Consequently, the Court determined that it was 
“clear” that Section 5 “requires prior submission of 
any changes in the location of polling places.” Id.

Evidence from Alaska demonstrates why polling 
place changes are not “obviously benign.” Petitioner’s 
Br. at 14. Native villages in many parts of the State, 
such as the Bethel region, are separated from each 
other by large expanses of water and frozen tundra 
without any roads to connect them. Some Native 
villages (such as Kasigluk) are divided by rivers, 
requiring that polling places be split for a half day on 
one side of the river and then transported by boat to 
voters living on the other side. See Continued Need, 
supra, at 1316. The State Division of Elections estim ates 
that statewide there are about 150 Native villages 
that are inaccessible by road. Id. Relocating polling 
places in Alaska is “an incredibly big deal” because 
moving “a polling station in a community that does 
not have cars and operates by snow machines or 
walking in 10-below weather in November ... may 
actually disenfranchise an entire community.” Mod­
ern Enforcement, supra, at 25.

Just last year, Section 5 prevented Alaska from 
implementing a number of discriminatory polling 
place changes. In May 2008, the State submitted for 
preclearance a plan to eliminate precincts in several 
Native villages covered by Section 4(f)(4) of the Act. 
See App. 1-5, Letter from Christopher Coates, Chief, 
Voting Section, to Gail Fenumiai, Director, Division of 
Elections, dated July 14, 2008. State officials pro­
posed to (1) “realign” Tatitlek, a community in which



21

about 85 percent of the residents are Alaska Native, 
to the predominately white community Cordova, 
which is located over 33 miles away and is not con­
nected by road; (2) consolidate Pedro Bay, in which a 
majority of its residents are Alaska Native, with 
Iliamna and Newhalen, which are located approxi­
mately 28 miles away, are not connected by road, and 
were the subject of a critical initiative on the August 
2008 ballot; and (3) consolidate Levelock, a community 
in which about 95 percent of the residents are Alaska 
Native, with Kokhanok, which are approximately 77 
miles apart and not connected by road.4 In summary, 
Alaska was attempting to combine precincts which 
are accessible to one another only by air or boat and 
have high concentrations of Alaska Native voters. See 
id.

The Justice Department responded to the State’s 
submission with a MIR letter requesting information 
about the research on which the voting changes were 
based, the distances between the polling places, and 
their accessibility to Alaska Native voters. See id. For 
example, the Department inquired about “the meth­
ods of transportation available to voters traveling 
from the old precinct to the new consolidated pre­
cinct” asking that if there were no roadways connect­
ing them that the State “indicate how voters will get

4 Population data is from the 2000 Census. See U.S. Census, 
http://www.census.gov/. Distance data is calculated using the 
Geographic Names Information System of the U.S. Geological 
Survey. See http://www.infoplease.com/atlcis/calculate-distance.html.

http://www.census.gov/
http://www.infoplease.com/atlcis/calculate-distance.html


22

to the consolidated location.” Id. The MIR also sug­
gested that Alaska’s election officials had not con­
sulted with Native voters about the changes and 
requested a “detailed description” of efforts “to secure 
the views of the public, including members of the 
minority community, regarding these changes.” Id. 
Finally, the MIR documented that when Department 
personnel communicated with State officials, they 
learned that Alaska also was taking steps to imple­
ment an unsubmitted voting change that would desig­
nate “the specified voting precincts” as “permanent 
absentee by-mail precincts.” Id. Rather than respond 
to these questions and submit the additional voting 
changes for Section 5 review, the State abruptly 
withdrew the submission two weeks later. See App. 
14-15, Letter from Christopher Coates, Chief, Voting 
Section, to Gail Fenumiai, Director, Division of Elec­
tions, dated Sept. 10, 2008.

The record from Alaska shows that preclearance 
remains necessary to block State officials from enforc­
ing polling place changes that would disenfranchise 
Alaska Native voters.

D. A  Section 5 objection in Alaska has 
lasting impact in deterring future dis­
crimination against Alaska Natives.

In Alaska, a Section 5 objection does not just stop 
enforcement of the discriminatory voting change at 
issue. It also discourages State officials from attempt­
ing to enforce similar discriminatory changes in the



23

future. Petitioner downplays that deterrent effect, 
arguing that there is “no evidence ... that officials in 
covered jurisdictions would revert to the conduct of 
their forbears if §5 were allowed to expire.” Peti­
tioner’s Br. at 42-43. Arriving at that conclusion 
sidesteps the substantial record that Congress con­
sidered regarding the deterrent effect of objections. 
With respect to Alaska, that deterrent effect does not 
just prevent State officials from reverting to discrimi­
nation by their forbears, but the discriminatory 
conduct in which they would continue to engage 
themselves without Section 5.

The Attorney General’s objection to a statewide 
redistricting plan following the 1990 Census illus­
trates the lasting deterrent effect that a Section 5 
objection has in Alaska. The State’s initial plan, 
which was prepared in secret, diluted the voting 
strength of Alaska Natives. See Continued Need, 
supra, at 1345-46. Several Native groups complained 
to the Justice Department about the “anti-Native” 
plan. Id. at 1346-47. The Department responded by 
sending an MIR asking that the State address con­
cerns such as: the plan’s reduction of the number of 
Alaska Native majority districts; the retrogressive 
effects of at least one district on Native voting 
strength; the “extraordinary” deference towards 
incumbent legislators’ districts except those of Native 
legislators, whose districts had been combined; and 
the State’s preparation of the redistricting plan 
without public input. Id. at 1347.



24

A State trial court subsequently rejected the 
original redistricting plan as unconstitutional. Id. 
The Alaska Supreme Court then ordered the trial 
court to formulate an interim plan. Id. In Hickel v. 
Southeast Conference, 846 P.2d 38 (Alaska 1992), the 
State’s highest court struck down 11 districts in the 
interim plan, but left intact State District 36, which 
reduced the voting strength of Yup’iks. Continued 
Need, supra, at 1347. In 1993, the Attorney General 
interposed an objection to the retrogressive effects of 
District 36 and its companion Senate District R, 
which reduced the Native voting age population from 
55.7 percent to 50 percent despite the presence of 
extremely racially polarized voting in those districts. 
Id. at 1348. Section 5 thereby served as the only line 
of defense between the retrogressive redistricting 
plan and its discriminatory impact on Alaska Natives. 
Id.

As a result of the 1993 objection, Alaska was 
compelled to take “an entirely different approach to 
the process” in the 2000 redistricting cycle. Modern 
Enforcement, supra, at 81. It “hired a national voting 
rights expert to ensure that its proposed plan did not 
violate the VRA or reduce the ability of Alaska Na­
tives to elect candidates of their choice.” Id. State 
officials adopted a plan that did not “reduce the 
ability of Alaska Natives to elect candidates of their 
choice” and appointed a Native to the redistricting 
board to represent the nearly 20 percent of the State’s 
population excluded from the 1990 redistricting 
process. Id.; see Continued Need, supra, at 1318-19,



25

1350-51. That one “objection was felt statewide and 
continues to have an impact today.” Modern Enforce­
ment, supra, at 81.

Petitioner’s argument suggests that a Section 5 
objection should be treated as an isolated occurrence 
that has no deterrent effect on a covered jurisdiction’s 
future actions. The House Report rejected that nar­
row view of Section 5’s role, referring to the impact of 
an objection in Georgia that closely parallels the 
result of the 1993 objection in Alaska:

This does not mean, however, that Section 5 
did [not] play a critical role in the redistrict­
ing process. Rather, it means Section 5 en­
couraged the legislature to ensure that any 
voting changes would not have a discrimina­
tory effect on minority voters, and that it 
would not become embroiled in the preclear­
ance process.

H.R.Rep.No. 109-478 at 24, reprinted in 2006 
U.S.C.C.A.N. 633. Alaska’s post-reauthorization 
violations of Section 5 are a strong indication that 
State officials would readily return to their discrimi­
natory conduct if they did not have to obtain pre­
clearance.

II. Other substantive provisions of the VRA  
are inadequate substitutes for Section 5.

Section 5 is a central feature in the VRA’s arsenal 
to combat existing voting discrimination and the 
present effects of past unequal treatment in Alaska.



26

Other substantive provisions of the Act play an 
important role as well. However, they remain far less 
effective than the broad prophylactic relief that 
preclearance provides in preventing discriminatory 
voting changes from ever being implemented. Yet, 
Petitioner asks the Court to reject the role of Section 
5 in its entirety because Petitioner asserts that 
“private action is more effective than executive re­
view.” Petitioner’s Br. at 54.

Petitioner’s argument is fundamentally at odds 
with longstanding precedent. This Court recognized 
that Congress could remedy discrimination in an 
“inventive manner” as it did in Section 5. South 
Carolina v. Katzenbach, 383 U.S. at 327. Specifically, 
the VRA implemented the preclearance remedy 
“without any need for prior adjudication” because a 
case-by-case approach in challenging discriminatory 
tests and devices had proven unworkable. Id. at 328. 
Voting suits were “unusually onerous to prepare” and 
litigation of individual cases was “exceedingly slow.” 
Id. at 314. When the cases were successful, states 
would simply switch to a new discriminatory test, 
device, or procedure. Id. Therefore, the Court con­
cluded that “Congress might well decide to shift the 
advantage of time and inertia from the perpetrators 
of the evil to its victims.” Id. at 328.

Amici’s experience in the Nick litigation con­
firms the continuing vitality of the Court’s reasoning 
in Katzenbach. Almost two years after filing their 
claims under Sections 4(f)(4) and 208 of the VRA, 
amici have spent nearly $150,000 in out-of-pocket



27

costs, dedicated thousands of hours by four experi­
enced attorneys, employed four expert witnesses and 
five translators, completed nearly 20 depositions, and 
traveled thousands of miles back and forth across the 
frozen tundra in hazardous winter months. Amici 
have had to sacrifice their subsistence fishing to 
travel 500 miles to Anchorage to pursue their claims. 
The parties have exchanged over 7,000 pages of 
documents. There are now nearly 600 docket entries 
in the record of a single case that the presiding fed­
eral judge refers to as “vigorous.” Still, amici have not 
obtained final relief. In February 2009, amici had to 
file a comprehensive motion supported by more than 
three dozen declarations from Native voters in 17 
villages because of the State’s failure to comply with 
the more limited remedies ordered in the preliminary 
injunction. See Dkt. 518, Mot. for Further Relief, 
Nick, supra. After amici obtain final relief in their 
case, that relief will only apply to the approximately 
15,000 Alaska Natives living in the Bethel Census 
Area, and not to tens of thousands of Alaska Natives 
residing in other parts of the State. Far from being 
quick and effective as Petitioner maintains, amici’s 
experience has proven the model of protracted, in­
tense and costly litigation that Katzenbach described 
as antithetical to the fundamental right to vote. See 
383 U.S. at 327-28.



28

III. Educational discrim ination that de­
presses Native turnout shows the close­
ness of fit between the Section 4 trigger 
and statewide coverage of Alaska.

Petitioner contends that the Section 4 coverage 
formula improperly “relies on two proxies in attempt­
ing to identify jurisdictions with histories of voting 
discrimination: (1) literacy tests or other devices that 
prohibited voting, and (2) voting registration and 
turnout rates.” Petitioner’s Br. at 58 (citing 42 U.S.C. 
§1973b(b)). Without addressing the considerable 
record that Congress assembled in 2006, Petitioner 
maintains that these “proxies are out of date and 
cannot show a recent” relationship with ongoing 
discrimination. Id. at 58-59. Petitioner’s argument is 
refuted by this Court’s jurisprudence and evidence 
from Alaska showing the trigger’s closeness of fit with 
discrimination against Alaska Natives.

The preclearance requirements in Section 5 of 
the VRA apply to jurisdictions covered under the 
formula in Section 4 of the Act. As originally enacted, 
the Section 4 trigger focused on states and locales 
that had used literacy tests and experienced low voter 
registration or turnout. See Pub. L. No. 89-110, §4(a)- 
(b), 79 Stat. 437, 438 (1965). The Act defined “test or 
device” to include any prerequisites to registering or 
voting that required demonstration of “the ability to 
read, write, understand, or interpret any matter,” to 
prove education achievement or knowledge of any 
subject, possession of “good moral character,” or to 
prove qualifications “by the voucher of registered



29

voters, or members of any other class.” 42 U.S.C. 
§1973b(c). In 1975, Congress amended the Section 4 
trigger to include Alaska Natives and other minority 
voters who had experienced discrimination that 
impeded their political participation.

The trigger for Alaska Natives is “virtually 
identical” to the original trigger in Section 4, except 
that it expanded the term “test or device” to “also 
mean the use of English-only election materials in 
jurisdictions where more than 5 percent of the voting 
age citizen population is comprised of members of any 
single language minority group.”5 121 CONG. R e c . 
H4716 (daily ed. June 2, 1975) (statement of Rep. 
Edwards); see 42 U.S.C. §1973b(b). Application of the 
triggering formula resulted in statewide coverage of 
Alaska for Alaska Natives. See 40 Fed. Reg. 49,422 
(Oct. 22, 1975). Because of its coverage, Alaska must 
provide all election materials in the Alaska Native 
languages. See 42 U.S.C. §1973b(f)(4). The State also 
must obtain Section 5 preclearance of any voting 
change different from what was in force or effect on 
November 1, 1972, see 42 U.S.C. §1973c(a), including 
any changes necessary to provide effective language 
assistance. See 28 C.F.R. §55.22. Administrative 
preclearance of the State’s voting changes remains 
essential to protect the fundamental right of the 
amici to participate in the political process.

3 See 42 U.S.C. §1973b(f)(3). “Language minorities” was 
defined as “persons who are American Indian, Asian American, 
Alaskan Natives or of Spanish heritage.” 42 U.S.C. § 19731(c)(3).



30

Congress amended the coverage trigger in Sec­
tion 4 because of overwhelming evidence of “a sys­
tematic pattern of voting discrimination and 
exclusion against minority group citizens who are 
from environments in which the dominant language 
is other than English.” S .R e p .N o . 94-295 at 24 (1975), 
reprinted in 1975 U.S.C.C.A.N. 774, 790. Intentional 
discrimination against language minorities was 
combined with educational discrimination “resulting 
in severe disabilities and continuing illiteracy in the 
English language.” 42 U.S.C. §1973b(f)(l). Congress 
responded by applying “the Act’s special remedies to 
jurisdictions where language minorities reside in 
greatest concentrations and where there is evidence 
of low voting participation.” S .R e p .N o . 94-295 at 32 
(1975), reprinted in 1975 U.S.C.C.A.N. 798. The 
statutory findings declare that, “in order to enforce 
the guarantees of the fourteenth and fifteenth 
amendments to the United States Constitution, it is 
necessary to eliminate such discrimination by prohib­
iting English-only elections, and by prescribing other 
remedial devices.” 42 U.S.C. §1973b(f)(l).

This Court repeatedly has upheld the Section 5 
triggers, narrowed by the bailout provision, as a 
constitutional exercise of congressional powers to 
protect the fundamental right to vote. See Lopez v. 
Monterey County, 525 U.S. 266, 283 (1999); City o f  
Rome v. United States, 446 U.S. 156, 177 (1980); 
South Carolina v. Katzenbach, 383 U.S. 308, 325-27 
(1966). In a quartet of decisions, the Court also de­
termined that Congress reasonably exercised its



31

authority in remedying the discriminatory effects of 
English literacy tests and unequal educational oppor­
tunities in covered jurisdictions. See Oregon v. 
Mitchell, 400 U.S. 112 (1970) (unanimously upholding 
the nationwide ban on literacy tests); Gaston County 
v. United States, 395 U.S. 285, 291-92 (1969) (uphold­
ing the Section 5 coverage formula based upon voter 
participation rates as a proxy for identifying jurisdic­
tions with “racially disparate school systems”); Katzen- 
bach v. Morgan, 384 U.S. 641 (1966) (upholding 
the requirement that jurisdictions provide language 
assistance for Puerto Rican voters educated in Span­
ish); South Carolina v. Katzenbach, 383 U.S. at 314, 
327-30 (upholding the Section 5 trigger as a permissi­
ble way to identify jurisdictions with a “significant 
danger” of voting discrimination, as documented by “a 
low voting rate”).

Amici and other Alaska Natives are a testament 
to the relationship between Alaska’s coverage under 
Section 4 and continuing discrimination against them 
by the State. Set against the well-established frame­
work for remedying the effects of unequal educational 
opportunities, the continuing coverage of Alaska 
under the Section 4 trigger is constitutional. Amici 
and other Alaska Natives were denied access to 
public schooling, resulting in their high illiteracy and 
LEP rates. Coupling that discrimination with 
Alaska’s use of English-only elections has resulted in 
low voter participation rates. Instead of invalidating 
the efficacy of the Section 4 trigger, Petitioner’s 
argument reaffirms it.



32

A. Alaska has denied equal educational 
opportunities to Alaska Natives.

Amici and other Alaska Natives face “present 
barriers to equal educational opportunities” and “the 
current effect that past educational discrimination 
has on today’s ... adult population.” S .R e p .N o . 102- 
315 at 5 (1992). Segregated schooling was the norm in 
Alaska for over a century, and was a reality for amici 
when they wanted to attend public school but could 
not. See Settlement Agreement, Hootch v. State 
Operated Sch. Sys., Civil No. 72-2450, settled sub 
nom., ex rel. Tobeluk v. Lind (Alaska Super. Ct, Sept. 
3, 1976) (Hootch Settlement). Specifically, “a dual 
school system emerged unofficially in Alaska” because 
of “resentment among the relatively few whites over 
emphasis on education for Natives and a belief that 
integrated schools would give only inferior educa­
tion.” Id. at <[[9. In 1956, Alaska’s territorial attorney 
general indicated that the territory had not created 
school districts in Alaska Native areas, despite the 
territory’s clear authority to do so. See U.S. Dep’t of 
Interior, Organization o f School Districts on Indian 
Reservations in Alaska, 63 Interior Dec. 333, 335 
(Sept. 17, 1956).

In 1959, the year Alaska became a state, out of 
34 public secondary schools operated by the territo­
rial government, just six were in communities in 
which at least half of the population was Alaska 
Native. Hootch Settlement at ^12. By 1960, just 1,832 
out of 5,365 Native children between the ages of 14 
and 19 were enrolled in high school. State of Alaska,



33

Governor’s Comm, on Educ., An Overall Education 
Plan for Rural Alaska 2 (rev. Feb. 26, 1966), at App.
E. By the mid-1970s, there were about 2,783 secon­
dary school age children who lived in villages with a 
public or Bureau of Indian Affairs elementary school 
but without a secondary school or daily access to such a 
school. Over 95 percent of those children were Native; 
statewide, only 120 non-Native children of secondary 
school age had no ready access to a secondary school. 
Hootch Settlement at f l9 .  If Native children did not 
“wish to leave home, [were] not able to leave home, or 
refuse[d] to leave home to attend boarding school or 
the boarding home program, they [were] denied 
secondary school education,” resulting in “a highly 
disproportionate number of Alaska Natives ... not ... 
attending secondary schools.” First Am. Compl. ^51, 
Hootch v. State Operated Sch. Sys., case no. 72-2450- 
CIV (Alaska Super. Ct. Oct. 5, 1972). Amici therefore 
received no schooling past the fifth primary grade.

In Hootch v. State Operated School System, a 
class of Eskimo, Aleut, and Indian parents and chil­
dren from some of the amici’s villages sued the State 
to remedy the separate and unequal schooling.6 Id. 
The case was settled in 1976, when Alaska agreed for 
the first time to establish a public secondary school in 
all 126 Native villages that wanted one, including the

6 The Senate cited Hootch as evidence of educational 
discrimination that necessitated amending the Section 4 trigger 
to include Alaska Natives. See S.REP.No. 94-295 at 29, reprinted 
in 1975 U.S.C.C.A.N. at 795-96.



34

amici’s own villages. See Hootch Settlement. It took 
Alaska nearly three decades to begin to implement 
the mandate of Brown v. Board o f Education, 347 
U.S. 483 (1954). Secondary schools were unavailable 
in most Native villages until the early 1980s, when 
Alaska’s legislature approved $137 million to provide 
secondary education in 105 villages and to build 92 
new high schools. Stephen E. Cotton, Thirty Years 
Later: The Molly Hootch Case, SHARING O ur  PATHWAYS 
vol. 9, issue 4, at 4, 9 (Sept./Oct. 2004). Construction 
of the last of the so-called “Molly Hootch” high schools 
was not completed until the mid-1980s. Diane 
Olthuis, The Molly Hootch Case: 1972, Emmonak, in 
It H appened  in  A laska  129 (2006).

Building schools did not end the State’s discrimi­
nation. In 1999, Kasayulie v. State found that Alaska 
had “discrepancies in funding made available to 
Native and non-Native students.” H.R.Rep.No. 109- 
478 at 51, reprinted in 2006 U.S.C.C.A.N. 651. De­
spite “the affirmative duty on the State to provide 
public education,” the court held that the funding 
discrepancies between the predominately non-Native 
urban areas and the Native villages “unconstitution­
ally discriminated against Alaska Natives.” Id. There 
was evidence of ongoing funding disparities in an­
other case that was pending during reauthorization. 
See Continued Need, supra, at 1336; Decision and 
Order, Moore v. State, case no. 3AN-04-9756-CIV slip 
op. at 194-95 (Alaska Super. Ct. June 21, 2007).

Alaska’s continued failure to provide equal 
educational opportunities has profoundly affected the



35

ability of Native voters to read registration and voting 
materials. In 2004, only 47.5 percent of all Native 
students graduated from high school compared to the 
statewide average of 62.9 percent. H.R.Rep.No. 109- 
478 at 50-51, reprinted in 2006 U.S.C.C.A.N. 651. In 
2005, just 19.5 percent of all Alaska Native seniors 
statewide “were proficient in reading comprehension” 
in a high school graduation test. Continued Need, 
supra, at 1335; Modern Enforcement, supra, at 79. 
Educational discrimination in Alaska is not limited 
only to amici, but now impacts a new generation of 
young adults who are or soon will become eligible to 
vote.

B. Alaska Natives continue to suffer from  
high illiteracy rates and low voter 
participation resulting from discrim i­
nation in education and voting.

Where education barriers are present, they have 
“a deleterious effect on the ability of language minori­
ties to become English proficient and literate.” 
H.R.Rep.No. 102-655, at 6, reprinted, in 1992 
U.S.C.C.A.N. 766, 770. Alaska Natives suffer from 
the effects of present unequal educational opportuni­
ties and past discrimination identified by Congress in 
1975. According to 2002 Census data, the average 
LEP rate among Alaska Native voters on 59 reserva­
tions wTas 22.6 percent. See Continued Need, supra, at 
2169. Forty percent of all Alaska Native reservations 
had LEP rates “greater than 50 percent.” Id. Among 
LEP Alaska Native voters, 28.3 percent are illiterate,



36

nearly 21 times the national illiteracy rate of 1.35 
percent for voting-age U.S. citizens. See id. at 2163, 
2170. There is a strong correlation between limited- 
English proficiency and illiteracy, with forty percent 
of all Alaska Native reservations having “illiteracy 
rates greater than 50 percent.” Id. at 2170.

Alaska Natives in the Bethel area have some of 
the highest LEP rates in Alaska, including eight 
Yup’ik villages in which more than half of eligible 
voters are LEP and 10 villages with LEP rates be­
tween 20 to 50 percent. See Id. at 2281. Among the 
region’s Alaska Natives aged sixty and older, 91.7 
percent lack a high school diploma and 86.3 percent 
have less than a ninth grade education. See Nick PI 
Mot., supra, at 4. Yup’ik voters in the Bethel area 
have consistently had depressed voter turnout be­
cause of the lack of language assistance, trailing 
statewide turnout in the 2004 Presidential Election 
by more than 20 percent. Id. at 24. Alaska election 
officials were dismissive of the known impact their 
violations of the VRA had on depressing Yup’ik turn­
out in the Bethel area, stating their lack of concern 
“because that has been the trend of that area.” Id. at 
23-24. In the 2008 Presidential Election, turnout 
among Alaska Natives was just 47 percent,7 nearly 20

7 See Nat’l Cong, of Am. Indians, Election 2008: Impact in 
Indian Country (Nov. 6, 2008), http://www.ncai.org/fileadmin/pdf 
Election2008AnalysisFINALCompatibilityMode.pdf.

http://www.ncai.org/fileadmin/pdf


37

percent lower than the statewide turnout rate of 66 
percent.8

“Sections 4(f) and 203 have been instrumental in 
fostering progress” to combat the “unequal educa­
tional opportunities” provided to Alaska Natives. 
H .R .R e p .N o . 109-478 at 18, reprinted in 2006 
U.S.C.C.A.N. 628. They “level the playing field” for 
illiterate and LEP Native voters, “ensuring that the 
most fundamental right of all citizens is preserved 
regardless of one’s ability to speak English well.” Id. 
at 61, reprinted in 2006 U.S.C.C.A.N. 661-62. Section 
4(f)(4) requires that Alaska provide assistance in 
Alaska Native languages for “any registration or 
voting notices, forms, instructions, assistance, or 
other materials or information relating to the elec­
toral process, including ballots...” 42 U.S.C. 
§1973b(4)(f)(4); see also 42 U.S.C. §1973aa-la (provid­
ing for identical requirements under Section 203); 28
C.F.R. §55.18 (summarizing language assistance that 
must be provided under both sections).

Alaska is demonstrative of the “significant num­
ber of jurisdictions” that “have yet to fully comply” 
with Section 4(f)(4)’s obligations. H .R .R e p .N o . 109- 
478 at 58, reprinted in 2006 U.S.C.C.A.N. 659. 
Alaska’s violations have “had the effect of keeping 
citizens from experiencing full participation in the

8 See State of Alaska, Division of Elections, Official Results 
of the Nov. 4, 2008 General Election, http://www.elections.alaska. 
gov/08general/data/results.pdf.

http://www.elections.alaska


38

electoral process.” Id. at 58-59, reprinted in 2006 
U.S.C.C.A.N. 659. In reauthorizing Section 4(f)(4), 
Congress cited “the enforcement actions filed to 
protect language minorities” such as those to compel 
Alaska’s compliance. VRARA §2(b)(8), 120 Stat. 578. 
Petitioner’s criticism of the Section 4 trigger rests on 
the incorrect assumption that the passage of time, 
rather than eliminating the discrimination that 
resulted in coverage, should be the constitutional 
touchstone. Jurisdictions like Alaska “are covered 
because they discriminated against their minority 
populations. They should not be released from over­
sight simply because time has passed; they should be 
released if they can demonstrate that they are no 
longer discriminating, such as through bailout.” 
Modern Enforcement, supra, at 74. Section 5 remains 
essential to ensure that Alaska provides all of its 
citizens, including Alaska Natives, with equal access 
to registration and voting.

IV. Conclusion.

Sections 4 and 5 of the VRA are essential to 
protect the ability of Alaska Natives to have equal 
access to registration and voting opportunities. State 
discrimination continues to be a part of the contem­
porary reality of elections in Alaska. Congress was 
well aware of that fact when it reauthorized the tempo­
rary provisions of the VRA in 2006. See VRARA 
§2(b)(b), 120 Stat. 577-78. As such, it properly acted 
“under its broadest power -  to remedy continued



39

discrimination.” H.R.Rep.No. 109-478 at 53, reprinted 
in 2006 U.S.C.C.A.N. 654.

Accordingly, the judgment of the District Court 
should be affirmed.

Respectfully submitted,
Jam es T homas T ucker

25th of March 2009

Counsel o f Record 
N atalie L andreth  
N ative A m erican  R ights F und 
801 B Street, Suite 401 
Anchorage, Alaska 99501 
(907) 276-0680



App. 1

[SEAL] U.S, Department of Justice

Civil Rights Division

CC:MSR:SMC:jdh Voting Section -  NWB

Gail Fenumiai, Esq.
Director, Division of Elections
P.O. Box 110017
Juneau, Alaska 99811-0017
Dear Ms. Fenumiai:

This refers to the consolidation of the Tatitlek 
Precinct into the Cordova Precinct, and the subse­
quent polling place change, precinct realignment and 
precinct name change to the Cordova-Tatitlek Pre­
cinct; consolidation of the North Prince of Wales 
Precinct into the Klawock Precinct, and the subse­
quent polling place change, and precinct realignment; 
consolidation of the Pedro Bay Precinct into the 
Iliamna-Newhalen Precinct, and the subsequent 
polling place change precinct realignment and pre­
cinct name change to the Iliamna Lake North Pre­
cinct; and the consolidation of the Levelock Precinct 
into the Kokhanok Precinct, and the subsequent 
polling place change, precinct realignment and pre­
cinct name change to the Iliamna Lake south Pre­
cinct, for the State of Alaska, submitted to the 
Attorney General pursuant to Section 5 of the Voting

DJ 166-012-3
2008-2739
2008-3714

950 Pennsylvania Avenue, NW  
Washington, DC 20530

July 14, 2008



App. 2

Rights Act, 42 U.S.C. 1973c. We received your sub­
mission on May 13, 2008.

With regard to the changes affecting the North 
Prince of Wales Precinct, the Attorney General does 
not interpose any objection to the specified change. 
However, we note that Section 5 expressly provides 
that the failure of the Attorney General to object does 
not bar subsequent litigation to enjoin the enforce­
ment of the change. Procedures for the Administra­
tion of Section 5 of the Voting Rights Act (28 C.F.R. 
51.41).

With regard to the remaining specified changes, 
our analysis indicates that the information sent is 
insufficient to enable us to determine that the pro­
posed changes do not have the purpose and will not 
have the effect of denying or abridging the right to 
vote on account of race, color, or membership in a 
language minority group, as required under Section 
5. The following information is necessary so that we 
may complete our review of your submission:

1. A detailed explanation of the proposed 
changes including: (a) the criteria used to determine 
that the Tatitlek, Pedro Bay and Levelock Precincts 
should be eliminated; (b) reasons for the selection of 
the precincts these would be consolidated into; (c) a 
description of any alternative(s) precincts considered 
for the consolidation and the reason(s) why each such 
alternative was not recommended or approved; and 
(d) the factual basis, including any reports, studies, 
analyses, or views (whatever formal or informal), for



App. 3

the State’s determination that the proposed changes 
will not have a retrogressive effect on minority voters.

2. A map for each of the consolidations, which 
depicts the existing voting precincts and the locations 
of their current polling places, and any other loca­
tions considered as potential polling places for these 
consolidated precincts. The maps should be accompa­
nied by a listing of the names and addresses of the 
current polling place locations along with the dis­
tance between each current location and the location 
with which it is being consolidated.

3. Please indicate the methods of transportation 
available to voters traveling from the old precinct to 
the new consolidated precinct. If no roadways connect 
the two, please indicate how voters will get to the 
consolidated location.

4. Please provide any methodology the State 
used to determine that there are no Alaskan Native- 
speakers in the impacted precincts, which are covered 
by the provisions of Section 203 of the Voting Rights 
Act. Please provide names of community members 
spoken to regarding the presence or absence of lim- 
ited-English proficient voters, including their daytime 
telephone numbers.

5. A detailed description of the efforts, both 
formal and informal, made by the State to secure the 
views of the public, including members of the minor­
ity community, regarding these changes. Describe the 
substance of any comments or suggestions received, 
provide the names and daytime telephone numbers of



App. 4

the persons making the comments or suggestions, 
and articulate the State’s response, if any.

6. Voter registration and turnout data, by race, 
for elections since 1998 for the precincts being elimi­
nated and subsequently consolidated.

During your recent conversation with Ms. 
Stephanie Celandine, of our staff, regarding these 
consolidations, you noted that the specified voting 
precincts affected by the consolidations would be 
designated as permanent absentee by-mail precincts. 
According to our records, this change affecting voting 
has not been submitted to the United States District 
Court of the District of Columbia for judicial review 
or to the Attorney General for administrative review 
as required by Section 5 of the Voting Rights Act, 42 
U.S.C. 1973c. If our information is correct, it is neces­
sary that this change be brought before the District 
Court for the District of Columbia or submitted to the 
Attorney General for a determination that it does not 
have the purpose and will not have the effect of 
discriminating on account of race, color, or member­
ship in a language minority group. Changes which 
affect voting are legally unenforceable without Sec­
tion 5 preclearance. Clark v. Roemer, 500 U.S. 646 
(1991); Procedures for the Administration of Section 5 
of the Voting Rights Act (28 C.F.R. 51.10).

The Attorney General has sixty days to consider 
a completed submission pursuant to Section 5. This 
sixty-day review period will begin when we receive 
the information specified above. See the Procedures



App. 5

for the Administration of Section 5 of the Voting 
Rights Act (28 C.F.R. 51.37). However, if no response 
is received within sixty days of this request, the 
Attorney General may object to the proposed changes 
consistent with the burden of proof placed upon the 
submitting authority. See also 28 C.F.R. 51.40 and 
51.52(a) and (c). Changes which affect voting are 
legally unenforceable unless Section 5 preclearance 
has been obtained. Clark v. Roemer, 500 U.S. 646 
(1991); 28 C.F.R. 51.10. Therefore, please inform us of 
the action the State of Alaska plans to take to comply 
with this request.

If you have any questions concerning this letter 
or if we can assist you in obtaining the requested 
information, you should call Ms. Celandine of our 
staff. Refer to File Nos. 2008-2739 and 2008-3714 in 
any response to this letter so that your correspon­
dence will be channeled properly.

Sincerely,
/s/ Maureen S. [Illegible] 
for Christopher Coates 

Chief, Voting Section



App. 6

[SEAL] U.S. Department of Justice

Civil Rights Division

CC:TFM:SBD:LB:jdh Voting Section -N W B

VIA FACSIMILE & FIRST CLASS MAIL
Gail Fenumiai 
Director
Division of Elections 
State of Alaska 
P.O. Box 110017 
Juneau, Alaska 99811-0017
Dear Ms. Fenumiai:

This refers to the changes in bilingual election 
procedures for the State of Alaska (“State”), submit­
ted to the Attorney General pursuant to Section 5 of 
the Voting Rights Act, 42 U.S.C. 1973c. We received 
your response to our May 19, 2008 request for addi­
tional information on June 9, 2008.

Your June 9, 2008, letter withdraws your sub­
mission of the State’s revised Minority Language 
Assistance Program (“MLAP”) from Section 5 review. 
Accordingly, no determination by the Attorney Gen­
eral is required concerning this matter. See Proce­
dures for the Administration o f Section 5 o f the Voting 
Rights Act, 28 C.F.R. 51.25(a). Please be advised, 
however, that the State of Alaska is required to 
provide bilingual election materials and minority

DJ 166-012-3 
2008-1726

950 Pennsylvania Avenue, NW  
Washington, DC 20530

August 1, 2008



App. 7

language assistance in the Native American and 
Alaska Native languages under Sections 4(f)(4) and 
203 of the Voting Rights Act. Therefore, to the extent 
that the State seeks to implement new procedures, 
preclearance of those procedures will be required 
before they may be implemented.

The last precleared bilingual election procedures 
for the State are the 1981 plan for the Alaska Native 
languages, precleared by letter dated October 5, 1981, 
and the 2002 and 2003 plans for the Tagalog lan­
guage, precleared by letters dated October 22, 2002 
and November 17, 2003. However, according to dis­
covery conducted in the case, Nick, et al. v. Bethel, et 
al. (D. AK, 3:07-CV-00098-TMB) (“Nick”), admissions 
by State elections officials, and assertions in your 
letter dated June 9, 2008, regarding “conditions 
existing at the time of the submission” and the State’s 
continued implementation of “enhancements,” it 
appears that the State of Alaska is not currently fully 
implementing the 1981 plan and is instead imple­
menting new and different procedures. Any proce­
dures deviating from the prior precleared procedures 
are changes affecting voting for which preclearance is 
required. See Clark v. Roemer, 500 U.S. 646 (1991).

According to our records, some of those changes 
affecting voting in the state’s minority language 
program that have been implemented since 1981 
have not been submitted to the United States District 
Court for the District of Columbia for judicial review 
or to the Attorney General for administrative review 
as required by Section 5 of the Voting Rights Act. If



App. 8

our information is correct, it is necessary that these 
changes either be brought before the District Court 
for the District of Columbia or submitted to the 
Attorney General for a determination that they do 
not have the purpose and will not have the effect of 
discriminating on account of race, color, or member­
ship in a language minority group. Changes which 
affect voting are legally unenforceable without Sec­
tion 5 preclearance. Id.; 28 C.F.R. 51.10.

Should you elect to make a submission to the 
Attorney General for administrative review rather 
than seek a declaratory judgment from the District 
Court for the District of Columbia, it should be made 
in accordance with Subparts B and C of the proce­
dural guidelines, 28 C.F.R. Part 51. At that time we 
will review your statewide bilingual procedures; 
however, any documentation previously provided 
need not be resubmitted.

The State of Alaska has recently submitted 
portions of its statewide bilingual procedures for 
Section 5 review in submissions dated June 2, 2008 
(bilingual assistance forms and posters), June 10, 
2008 (bilingual vote-by-mail materials), June 13, 
2008 (bilingual vote-by-mail instructions), June 23, 
2008 (Native Language and Tagalog audio on voting 
machines, and Native language audio CDs in polling 
places), and July 21, 2008 (using Native language 
audio CD recordings on automated phone system and 
website). With regard to these changes, please refer 
to the separate letter to you dated today, in which we 
state that it would be inappropriate for the Attorney



App. 9

General to make a preelearanee determination until 
the related changes have been submitted for Section 
5 review.

We are aware of the Order entered on July 30, 
2008, in the Nick litigation, requiring the State to 
implement certain bilingual elections procedures 
within the Bethel Census Area in the Yup’ik lan­
guage. While those specific federal court-ordered 
procedures do not have to be submitted for Section 5 
review, any procedures outside the scope of the Order 
that are changes affecting voting are legally unen­
forceable without Section 5 preclearance. Id.

Additionally, your letter dated June 9, 2008, 
contains some misconceptions regarding the Section 5 
process, specifically the standard and scope of review 
of Section 5 submissions by the Attorney General, the 
process involving comments from outside parties, and 
reason for and purpose of the more information letter.

The Voting Rights Reauthorization Act of 20061 
made clear that the standard of review under Section 
5 includes any discriminatory purpose and not simply 
“retrogressive purpose” as explained in Reno v. Boss­
ier Parish School Board, 528 U.S. 320 (2000). The 
applicable legal standard for determining whether 
discriminatory purpose exists is Village o f Arlington 
Heights v. Metropolitan Housing Development Corp.,

1 Fannie Lou Hamer, Rosa Parks, and Coretta Scott Ring 
Voting Rights Act Reauthorization and Amendments Act of 2006, 
Pub. L. No. 109-246, sec. 5, 5(c), 120 Stat. 577, 581



App. 10

429 U.S. 252, 266 (1977). This approach requires an 
inquiry into 1) the impact of the decision; 2) the 
historical background of the decision, particularly if it 
reveals a series of decisions undertaken with dis­
criminatory intent; 3) the sequence of events leading 
up to the decision; 4) whether the challenged decision 
departs, either procedurally or substantively, from 
the normal practice; and 5) contemporaneous state­
ments and viewpoints held by the decision-makers. 
Id. at 266-68.

Likewise, the discriminatory effect of a voting 
change must be measured by whether there is retro­
gression from a “benchmark” practice which is legally 
enforceable under Section 5, either by virtue of hav­
ing been precleared or not being subject to preclear­
ance. The Attorney General’s review of a submission 
thus requires the covered jurisdiction to accurately 
and completely identify the relevant benchmark 
practice. 28 C.F.R. 51.27(b), 51.54.

The Supreme Court has emphasized with respect 
to a covered jurisdiction that seeks judicial or admin­
istrative preclearance of a voting change under 
Section 5, “irrespective of which avenue of preclear­
ance the covered jurisdiction chooses, it has the same 
burden of demonstrating that the changes are not 
motivated by a discriminatory purpose and will not 
have an adverse impact on minority voters . . . ” 
McCain v. Lybrand, 465 U.S. 236, 247 (1984).



App. 11

A request for more information, like the Depart­
ment’s May 19, 2008 letter, seeks to assist the sub­
mitting jurisdiction in meeting its burden of 
establishing an absence of discriminatory purpose 
and discriminatory effect, where such information 
was not clearly presented in the initial submission. 
Therefore, the questions contained in the May 19, 
2008 letter are relevant to the Section 5 analysis and 
necessary for the Attorney General to determine 
whether the submitted changes were motivated by 
any discriminatory purpose or will have a discrimina­
tory effect as compared to the relevant benchmark. 
Moreover, we believe that the State of Alaska’s re­
sponse to the questions contained in the May 19, 2008 
letter are necessary for the Department to review the 
State’s submissions relating to or including bilingual 
election procedures, and to make a determination as 
to discriminatory purpose and retrogressive effect.

Likewise, the scope of review of Section 5 sub­
missions by the Attorney General is broad and in­
cludes all information and documentation before him, 
including information provided by the submitting 
jurisdiction, information provided by outside parties 
in the form of comment, and any other relevant 
information obtained through a variety of public and 
internal means. 28 C.F.R. 51.26 through 51.30. In its 
letter dated March 18, 2008, the State informed the 
Attorney General that it was involved in the Nick 
private litigation regarding the very issues submitted 
for review. Court filings in that litigation are publicly 
available and were reviewed during the Attorney



App. 12

General’s consideration of the State’s submission, as 
were comments from third parties.

The Procedures for Section 5 review contemplate 
and encourage comments from third parties and the 
Attorney General reviews, as a matter of course, 
those comments received during the sixty day period. 
28 C.F.R. 51.26 through 51.33. Both the Section 5 
Procedures and the Freedom of Information Act, 5 
U.S.C. 552, allow for persons outside of the Depart­
ment to obtain a copy of the submission and any 
comments upon request, subject to certain restric­
tions of privacy and confidentiality. 28 C.F.R. 51.29. 
An individual or group who provides information 
concerning a change affecting voting may choose to 
keep their identity confidential. 28 C.F.R. 51.29(d). 
Additionally, the Attorney General may, in his discre­
tion, inform the submitting authority of comments 
made by third parties, as was done in this matter. 28 
C.F.R. 51.36. However, no jurisdiction has a standing 
request to be notified of all comments received for all 
submissions.

Lastly, the Section 5 Procedures provide a means 
for the Attorney General to seek clarification and 
additional information from a jurisdiction, when 
necessary, including when issues are raised during 
the sixty-day review process or information provided 
by the submitting authority is insufficient. 28 C.F.R. 
51.37. Such procedures also allow the jurisdiction and 
opportunity to respond to and rebut allegations so 
that the Attorney General can make a fully informed 
determination. Id. During the review of the State’s



App. 13

submission dated March 18, 2008, those issues set 
forth in the Department’s letter dated May 19, 2008, 
came to light and the Attorney General sought the 
State’s response to and clarification of same.

To enable us to meet our responsibility to enforce 
the Voting Rights Act, please inform us of the action 
the State of Alaska plans to take regarding the 
changes affecting voting that have not been submit­
ted for judicial review or preclearance. If you have 
any questions, you should call Ms. Lema Bashir (202- 
305-0063) of our staff. Please refer to File No. 2008- 
1726 in any response to this letter so that your corre­
spondence will be channeled properly.

Since the Section 5 status of Alaska’s minority 
language assistance program is before the court in 
Nick, et al. v. Bethel, et al. (D. AK, 3:07-CV-00098- 
TMB), we are providing a copy of this letter to the 
court and counsel of record in that case.

Sincerely,
/s/ [Illegible] 

for
Christopher Coates 
Chief, Voting Section

cc: Court and Counsel of Record



App. 14

[SEAL] U.S. Department of Justice

Civil Rights Division

CC:MSR:SMC:par 
DJ 166-012-3 
2008-2739 
2008-3714

Voting Section -  NWB
950 Pennsylvania Avenue, NW
Washington, DC 20530

September 10, 2008
Ms. Gail Fenumiai 
Director, Division of Elections 
P.O. Box 110017 
Juneau, Alaska 99811-0017
Dear Ms. Fenumiai:

This refers to the consolidation of the Tatitlek 
Precinct into the Cordova Precinct, and the subse­
quent polling place change, precinct realignment and 
precinct name change to the Cordova-Tatitlek Pre­
cinct; consolidation of the Pedro Bay Precinct into the 
Iliamna-Newhalen Precinct, and the subsequent 
polling place change, precinct realignment and pre­
cinct name change to the Iliamna Lake North Pre­
cinct; the consolidation of the Levelock Precinct into 
the Kokhanok-Iguigig Precinct, and the subsequent 
polling place change, precinct realignment and pre­
cinct name change to the Iliamna Lake South Pre­
cinct; and resulting designation of the Tatitlek, Pedro 
Bay and Levelock Precincts as permanent absentee 
by-mail precincts for the State of Alaska, submitted to 
the Attorney General pursuant to Section 5 of the 
Voting Rights Act, 42 U.S.C. 1973c. We received your



App. 15

response to our July 14, 2008, request for additional 
information on July 30, 2008.

Your July 30, 2008, letter withdraws your sub­
mission from Section 5 review. Accordingly, no deter­
mination by the Attorney General is required 
concerning this matter. See the Procedures for the 
Administration of Section 5 (28 C.F.R. 51.25(a)).

Sincerely,
/s/ Maureen S. [Illegible] 
for Christopher Coates 

Chief, Voting Section