Shelby County v. Holder Brief Amicus Curiae

    No. 12-96

In  Th e

Supreme Court of tfje TOnfteb i§>tate£

Sh e l b y  Co u n t y , A l a b a m a ,
Petitioner,

Eric  H. H o l d e r , Jr . A t t o r n e y  G e n e r a l , et al.,
Respondents.

On Writ of Certiorari to the 
United States Court of Appeals for the 

District of Columbia Circuit

BRIEF OF AMICUS CURIAE NATIONAL BAR 
ASSOCIATION IN SUPPORT OF RESPONDENTS

Michelle A. Price 
Jenna A. Hudson 
Gilbert LLP
1100 New York Ave., N.W., 
Suite 700
Washington, DC 20005 
(202) 772-2259 
cohenj@gotofirm .com

v.

John Page
National Bar Association 
1225 U th Street, N.W. 
Washington, DC 20001 
(202) 842-3900

Jonathan M. Cohen 
Counsel of Record

Mark A. Packman 
Adrian C. Azer 
Ivan J. Snyder

Counsel for Amicus Curiae



11

TABLE OF AUTHORITIES

Page(s)
Cases

City o f Boerne v. Flores,
521 U.S. 507 (1997)................................................20

Crawford v. Marion County Election Board,
553 U.S. 181 (2008)................................................9

Lopez v. Merced County, California,
473 F. Supp. 2d 1072 (E.D. Cal. 2007)............... 26

National Federation of Independent Business
v. Sebelius, 132 S. Ct. 2566 (2012)........................9

Reynolds v. Sims,
377 U.S. 533 (1967)...................................................3

Shelby County, Alabama v. Holder,
679 F.3d 848 (D.C. Cir. 2012).......................passim

South Carolina v. Katzenbach,
383 U.S. 301 (1966).................................................13

Texas v. United States,
Civ. A. No. 11-1303, 2012 WL 3671924 
(D.D.C. Aug. 28, 2012)......................................9, 10

Court Filings

Brief of Arizona, Georgia, South Carolina, and 
South Dakota as Amici Curiae in Support 
of Petitioner............................................................. 22

Brief of Points and Authorities in Support of 
Motion For Court-Ordered Redistricting 
Plan, Allen v. City of Evergreen, Alabama,
C.A. No. l:12-cv-00496-CB-M (S.D. Ala.
Dec. 12, 2012) 11



Ill

Brief of State of Alabama as Amicus Curiae
Supporting Petitioner......................................... 4, 5

Brief of the State of Texas as Amicus Curiae
In Support Of Petitioner......................................... 9

Complaint, Allen v. City of Evergreen,
Alabama, C.A. No. l:12-cv-00496-CB-M
(S.D. Ala. Aug. 6, 2012)................................. 11, 12

Consent Judgment and Decree, Augusta 
County, Virginia v. Gonzalez,
No. 05-1885 (D.D.C. Nov. 30, 2005)................... 23

Consent Judgment and Decree, Merced
County, California v. Holder, No. l:12-cv- 
00354 (D.C. Cir. Aug. 31, 2012)..............24, 25, 26

Joint Motion for Entry of Consent Judgment 
and Decree, New Hampshire v. Holder,
No. l:12-cv-01854 (D.C. Cir. Dec. 21, 2012)...... 23

Partial Consent Agreement, Allen v. City of 
Evergreen, Alabama,
C.A. No. 1:12-cv-00496-CB-M (S.D. Ala.
Aug. 20, 2012)..................................................11, 12

Plaintiffs Memorandum of Points and
Authorities in Opposition to Heilemanns 
Motion to Intervene, New Hampshire v.
Holder, No. l:12-cv-01854 (D.C. Cir. Dec.
19, 2012).................................................................. 23

Legislative Materials

42 U.S.C. § 1973 (2006)............................................... 13
42 U.S.C. § 1973b (2006).................................... passim
42 U.S.C. § 1973c (2006)......................................10, 15
H.R. Rep. No. 89-439 (1965)...................................... 22



IV

H.R. Rep. No. 94-196 (1975)...................................... 15
H.R. Rep. No. 109-478 (2006)........................... passim
S. Rep. No. 97—417 (1982)..................................passim
The Continuing Need for Section 5 Pre- 

Clearance: Hearing Before the Senate 
Comm, on the Judiciary, 109th Cong. 15 
(2006), available at
http://www.gpo.gov/fdsys/pkg/CHRG- 
109shrg28753/pdf/CHRG- 
109shrg28753.pdf........................................... 14, 19

Voting Rights Act: Section 5 of the Act- 
History, Scope and Purpose: Hearing 
Before the Subcomm. on the Constitution of 
the H. Comm, on the Judiciary, 109th 
Cong. 54 (2005)...................................................... 13

Voting Rights Act: An Examination o f the 
Scope and Criteria for Coverage Under the 
Special Provision the Act: Hearing Before 
the Subcomm. on the Constitution of the H.
Comm, on the Judiciary, 109th Cong. 90
(2005)........................................................................ 20

Rules

Supreme Court Rule 37 .3 ............................................. 1
Supreme Court Rule 37 .6 ............................................. 1
Other Authorities

40 Fed. Reg. 43,746 (Sept. 23, 1975).........................24

http://www.gpo.gov/fdsys/pkg/CHRG-109shrg28753/pdf/CHRG-109shrg28753.pdf
http://www.gpo.gov/fdsys/pkg/CHRG-109shrg28753/pdf/CHRG-109shrg28753.pdf
http://www.gpo.gov/fdsys/pkg/CHRG-109shrg28753/pdf/CHRG-109shrg28753.pdf


Y

Ana Henderson & Christopher Edley, Jr.,
Voting Rights Act Reauthorization:
Research-Based Recommendations to
Improve Voting Access, The Chief Justice
Earl Warren Institute on Race, Ethnicity
and Diversity, 9-10 (2006),
http ://w w w. la w .berkeley. e du/file s/W ar r en_
Inst._VRA_policy_report5-5.pdf................... 16, 17

Editorial, Florida’s Voting Fairness Problem,
Tampa Bay Times, Jan. 31, 2012,
/i££p://www.tampabay.com/opinion/editorial 
s/fl.oridas-voting-fairness-problem/1213083 ........ 7

Fannie Lou Hamer, Rosa Parks, and Coretta 
Scott King Voting Rights Act 
Reauthorization and Amendments Act of 
2006, Pub. L. No. 109-246, § 13(d)(2), 120 
Stat. 580 (July 27, 2006)....................................... 21

Gregory A. Caldeira, Litigation, Lobbying, and 
the Voting Rights Bar, in Controversies in 
Minority Voting: The Voting Rights Act in 
Perspective (Bernard Grofman & Chandler 
Davidson eds., 1992).............................................. 14

J. Gerald Hebert, An Assessment of the
Bailout Provisions o f the Voting Rights Act, 
in Voting Rights Act Reauthorization of
2006: Perspectives on Democracy,
Participation, and Power 257 (Ana 
Hernandez ed., 2006) ................................ 2, 22, 24

J. Gerald Hebert & Renata E. B. Strause, The 
Future of the Voting Rights Act, 64:4 
Rutgers L. Rev. 953 (2012)............................22, 24

http://www.tampabay.com/opinion/editorial


VI

Letter from Thomas E. Perez, Assistant 
Attorney General, to Nancy P. Jensen,
Baton Rouge, Louisiana (October 3, 2011)
in Voting Rights Act Objections and
Observers Searchable Index,
http ://lawy er scommittee. org/proj ects/sectio
n_5/.................................................................... 18, 19

Luis Ricardo Fraga & Maria Lizet Ocampo,
More Information Requests and the 
Deterrent Effect of Section 5 of the Voting 
Rights Act, Chief Justice Earl Warren 
Institute on Race, Ethnicity and Diversity, 
http ://w ww .law.berkeley.e du/file s/ch_3_fr a 
ga_ocampo_3-9-07.pdf........................................... 16

Michael Halberstam, The Myth of “Conquered 
Provinces”: Probing the Extent of the VRA’s 
Encroachment on State and Local 
Autonomy, 62 Hastings L.J. 923 (2011).......14, 16

Pamela S. Karlan, Two Section Twos and Two 
Section Fives: Voting Rights and Remedies 
After Flores, 39 Wm. & Mary L. Rev. 725 
(1998)...........................................................13, 14, 15

President Lyndon B. Johnson, Remarks at the 
Signing of the Voting Rights Act (Aug. 6,
1965), available at
http://millercenter.Org/president/speeches/d 
etail/4034................................................................... 3

The Right to Vote Under Attack: The
Campaign to Keep Millions of Americans 
from the Ballot Box, People for the 
American Way, http://www.pfaw.org/rww- 
in-focus/the-right-to-vote-under-attack-the- 
campaign-to-keep-millions-of-americans- 
from-the-ball (last visited Jan. 29, 2013). 8

http://millercenter.Org/president/speeches/d
http://www.pfaw.org/rww-in-focus/the-right-to-vote-under-attack-the-campaign-to-keep-millions-of-americans-from-the-ball
http://www.pfaw.org/rww-in-focus/the-right-to-vote-under-attack-the-campaign-to-keep-millions-of-americans-from-the-ball
http://www.pfaw.org/rww-in-focus/the-right-to-vote-under-attack-the-campaign-to-keep-millions-of-americans-from-the-ball
http://www.pfaw.org/rww-in-focus/the-right-to-vote-under-attack-the-campaign-to-keep-millions-of-americans-from-the-ball


Ryan J. Reilly, Conservative Group Attempts 
to Block New Hampshire’s Bailout from 
Voting Rights Act, Huffington Post, (Jan. 2,
2013, 4:59 PM)
http ://w w w .huffingtonpost. com/2013/01/02/ 
new-hampshire-voting-rights- 
act_n_2397801.html.............................................. 23

Ryan J. Reilly, Virginia Redistricting Plan 
“Shameful,” Says State Sen. Henry Marsh, 
Huffington Post, (Jan. 23, 2013, 5:31 PM) 
http://www.huffingtonpost.com/2013/01/22/ 
virginiaredistricting_n_2528519.html................12

Summary of Voter ID Laws Passed, The 
Brennan Center for Justice (2012), 
http://brennan.3cdn.net/2287283f66edc3a2f 
e_n3m6b9nvg.pdf....... ..............................................7

U.S. Dep’t of Justice, Section 4 of the Voting 
Rights Act,
http://www.justice.gov/crt/about/vot/misc/se
c_4.php#bailout_list (last visited Jan. 29,
2013) ................................................................. 20, 22

Vernon Francis et al., Preserving a
Fundamental Right: Reauthorization of the 
Voting Rights Act, Lawyers’ Committee for 
Civil Rights Under Law (2003), 
http://faculty.washington.edu/mbarreto/cou 
rses/Voting_Rights.pdf....................................13, 15

Wendy Weiser and Nhu-Y Ngo, Voting Rights 
in 2011: A Legislative Round-Up, The 
Brennan Center for Justice (2011), 
http://www.brennancenter.org/content/reso 
urce/voting_rights_in_201 l_a_legislative_r 
ound-up//............................................................... 8, 9

vii

http://www.huffingtonpost.com/2013/01/22/
http://brennan.3cdn.net/2287283f66edc3a2f
http://www.justice.gov/crt/about/vot/misc/se
http://faculty.washington.edu/mbarreto/cou
http://www.brennancenter.org/content/reso


STATEMENT OF INTEREST 
OF AMICUS CURIAE*

Amicus curiae, the National Bar Association, 
is the largest and oldest association of 
predominantly African-American attorneys and 
judges in the United States. It was founded in 1925 
when there were only 1,000 African-American 
attorneys in the country and when other national 
bar associations, such as the American Bar 
Association, did not admit African-American 
attorneys. The National Bar Association represents 
approximately 44,000 lawyers, judges, law 
professors, and law students, and it has over eighty 
affiliate chapters throughout the world.

The National Bar Association consistently 
has advocated for voting rights on behalf of African 
Americans and other minority populations since its 
founding nearly ninety years ago. It was at the 
forefront of the Civil Rights movement and played 
an integral role in helping African Americans secure 
the rights guaranteed by the United States 
constitution—particularly the right to vote. 1

1 In accordance with Supreme Court Rule 37.6, amicus 
curiae states that the position it takes in this brief has not 
been approved or financed by Petitioner, Respondents, or their 
counsel. Neither Petitioner, Respondents, nor their counsel 
had any role in authoring, nor made any monetary 
contribution to fund the preparation or submission, of this 
brief. Pursuant to Supreme Court Rule 37.3, amicus curiae 
states that all parties have consented to the filing of this brief; 
blanket letters of consent have been filed with the Clerk of the 
Court.



2

The National Bar Association therefore has 
an interest in and strongly supports the purposes 
for which Congress originally enacted Section 5 of 
the Voting Rights Act, i.e., “eliminat[ing] practices 
denying or abridging opportunities for minorities to 
participate in the political process.”2 Such practices 
still exist, and Section 5 remains necessary to 
combat discrimination and diminution of African 
American’s voting rights. The National Bar 
Association files this brief to demonstrate that 
Section 5 of the Voting Rights Act remains 
necessary to ensure equal access to the fundamental 
right to vote.

2 S. Rep. No. 97-417, at 44, 59 (1982); see also H.R. Rep. 
No. 109—478, at 58 (2006) (noting that Congress intended for 
the bailout provision to “encourage covered jurisdictions to 
work to end discriminatory conduct”); J. Gerald Hebert, An 
Assessment of the Bailout Provisions of the Voting Rights Act, 
in Voting Rights Act Re authorization of 2006: Perspectives on 
Democracy, Participation, and Power 257, 275 (Ana
Hernandez ed., 2006) (noting that the bailout provision 
mirrors Congress’ intent in passing the Voting Rights Act).



3

INTRODUCTION AND SUMMARY OF 
ARGUMENT

In 1965, Congress enacted the Voting Rights 
Act to protect every American’s right to vote. As 
this Court noted:

The right to vote freely for the 
candidate of one’s choice is of the 
essence of a democratic society, and 
any restrictions on that right strike at 
the heart of representative 
government. And the right of suffrage 
can be denied by a debasement or 
dilution of the weight of a citizen’s vote 
just as effectively as by wholly 
prohibiting the free exercise of the 
franchise.3

Section 5 of the Voting Rights Act supplemented the 
retroactive remedy provided in Section 2 by 
requiring jurisdictions with particularly severe 
histories of racial discrimination in voting to 
preclear any change to their voting standards, 
practices, or procedures. Section 5 thus prevents 
state and local actors from denying equal ballot 
access to minority voters.

3 Reynolds v. Sims, 377 U.S. 533, 555 (1967); see also 
President Lyndon B. Johnson, Remarks at the Signing of the 
Voting Rights Act, (Aug. 6, 1965), available at
http://millercenter.org/president/speeches/detail/4034 (“The 
right to vote is the basic right, without which all others are 
meaningless.”).

http://millercenter.org/president/speeches/detail/4034


4

Petitioner and certain amici curiae contend 
that the discrimination that previously warranted 
the imposition of Section 5 no longer exists and, 
thus, Section 5 is no longer necessary. For example, 
amicus curiae the State of Alabama asserts that 
“the Alabama of 2013 is not the Alabama of 1965.”4 
This assertion is misplaced, however. Although 
Alabama in 2013 is better than Alabama in 1965, it 
is not perfect, and progress made to date is due, at 
least in part, to Section 5. Section 5 is therefore 
vital to continued progress.

Voting discrimination is not a thing of the 
past. Although the Voting Rights Act, and 
particularly Section 5, has resulted in great strides 
forward from Jim Crow-era disenfranchisement, 
jurisdictions are still attempting today to restrict 
the ability of minority voters to exercise their right 
to vote.

Historically, discrimination in Section 5 
jurisdictions was both overt and violent. Modern 
discrimination, although perhaps more subtle, also 
is devastating to the voting rights of minorities. 
Legislatures continue to discriminate against 
minority voters by means of restrictions on early 
voting and voter registration drives, onerous voter- 
identification requirements, and discriminatory 
redistricting plans. And these discriminatory acts 
continue to draw objections from the Department of 
Justice under Section 5. Thus, contrary to 
Petitioner’s and amici curiae’s contentions, Section

4 Br. of State of Alabama as Amicus Curiae Supporting 
Pet’r at 4.



5

5 remains necessary to protect minorities in covered 
jurisdictions from discrimination.

Further, Section 2 of the Voting Rights Act is 
an insufficient remedy to counter continuing 
discrimination. Unlike Section 5, which prevents 
and deters discriminatory practices, Section 2 
provides minority voters with a post hoc remedy for 
discriminatory conduct. Moreover, unlike
administrative proceedings under Section 5, 
Section 2 lawsuits are complicated, expensive, and 
time-consuming, and, if successful, provide a more 
limited remedy. Once a court strikes down an 
election practice under Section 2, jurisdictions can 
(and often do) enact new methods of voter 
discrimination. As the State of Alabama concedes, 
historically, when the United States government 
sued Alabama for discrimination, its legislature 
defied court orders and implemented new 
discriminatory measures.5 This “gamesmanship”6 
demonstrates that post hoc remedies (like Section 2) 
are an inadequate, or at least incomplete, means by 
which to protect equality in voter access.

Moreover, covered jurisdictions know that 
any discriminatory change to voting rules will be 
preemptively reviewed under Section 5. This deters 
covered jurisdictions from proposing discriminatory 
changes in the first place.

Petitioner and certain amici curiae also 
contend that Section 5 must be held

5 See id. at 6-7.
e Id.



6

unconstitutional because it is not sufficiently 
narrowly tailored. To the contrary, Section 5 
jurisdictions that have corrected past discriminatory 
practices can “hail out” under Section 4(e) of the 
Voting Rights Act. It therefore is within a covered 
jurisdiction’s control to demonstrate that voter 
discrimination is a thing of the past. Yet Petitioner 
has not attempted to avail itself of this option.

Given that discriminatory practices persist in 
Section 5 jurisdictions, that Section 2 provides only 
post hoc remedies that do not sufficiently protect 
minorities’ right to vote, that Section 5 deters 
discrimination, and that it is within a covered 
jurisdiction’s control to correct discriminatory 
practices and end federal oversight under Section 5, 
this Court should uphold the constitutionality of 
Section 5.

ARGUMENT

I. SECTION 5 PRECLEARANCE REMAINS 
NECESSARY

A. Section 5 Jurisdictions Continue 
To Discriminate Against 
Minorities

Petitioner and certain amici curiae argue 
that the discrimination that prompted Congress to 
pass the Voting Rights Act is a thing of the past. 
That is wrong.

In just the six years since Congress 
reauthorized the Voting Rights Act, Section 5



7

jurisdictions have proposed a wave of voting-related 
rules that abridge the rights of minorities to vote. 
That the means of discrimination today are less 
blatant than they were in 1965 does not make them 
less nefarious.

Jurisdictions subject to Section 5 recently 
have enacted limitations on voter registration drives 
and early voting that disproportionately impact 
minorities. Minorities are significantly more likely 
than Caucasians to register to vote at registration 
drives, which several Section 5 jurisdictions, 
including Florida and Texas, have sought to limit.7 
Minorities also are significantly more likely than 
Caucasians to vote early. For example, during the 
2008 presidential election, African Americans and 
Hispanics respectively comprised thirty-one percent 
and twenty-two percent of all citizens who cast votes 
on the last Sunday of early voting in Florida.8 The 
same two groups cast only thirteen percent and 
eleven percent of votes in that election in total.9 
Proposals to eliminate early voting on the Sunday 
before Election Day thus targets minority voters.

Section 5 jurisdictions also recently have 
proposed voter-identification laws that would 
disenfranchise minority voters, because African-

7 Summary of Voter ID Laws Passed, The Brennan
Center for Justice 5, 12 (2012),
http://brennan.3cdn.net/2287283f66edc3a2fe_n3m6b9nvg.pdf.

8 Editorial, Florida’s Voting Fairness Problem, Tampa
Bay Times, Jan. 31, 2012,
/jiip://www.tampabay.com/opinion/editorials/floridas-voting-
fairness-problem/1213083. 

s Id.

http://brennan.3cdn.net/2287283f66edc3a2fe_n3m6b9nvg.pdf
http://www.tampabay.com/opinion/editorials/floridas-voting-


8

American and Hispanic citizens are statistically less 
likely than Caucasians to possess the necessary 
identification required by voter-identification laws. 
While only eight percent of Caucasian voters do not 
possess current, government-issued photo 
identification, sixteen percent of Hispanics and 
twenty-five percent of African Americans do not 
possess this form of identification.10 Discrimination 
is compounded by the fact that, in states with voter- 
identification requirements, poll workers are more 
likely to request identification from African- 
American and Hispanic voters than from Caucasian 
voters. During the 2008 election, poll workers 
asked for identification from seventy percent of 
African-American voters and sixty-five percent of 
Hispanic voters, but only fifty-one percent of 
Caucasian voters.11 Potential partisan issues aside, 
Section 5 jurisdictions’ application of voter- 
identification laws reduces the opportunity and/or 
ability of minorities to exercise their constitutional 
right to vote.12

10 The Right to Vote Under Attack: The Campaign to Keep 
Millions of Americans from the Ballot Box, People for the 
American Way, http://www.pfaw.org/rww-in-focus/the-right-to- 
vote-under-attack-the-campaign-to-keep-millions-of- 
americans-from-the-ball (last visited Jan. 29, 2013).

11 Id.
12 Alabama, Florida, Mississippi, and Texas have 

proposed laws requiring voters to show photo identification at 
the polls. Wendy Weiser and Nhu-Y Ngo, Voting Rights in 
2011: A  Legislative Round-Up, The Brennan Center for Justice 
(2011),
http://www.brennancenter.org/content/resource/voting_rights_i 
n_2011_a_legislative_round-up/. As of September 2013 in New 
Hampshire, a voter must produce New Hampshire or United

http://www.pfaw.org/rww-in-focus/the-right-to-vote-under-attack-the-campaign-to-keep-millions-of-americans-from-the-ball
http://www.pfaw.org/rww-in-focus/the-right-to-vote-under-attack-the-campaign-to-keep-millions-of-americans-from-the-ball
http://www.pfaw.org/rww-in-focus/the-right-to-vote-under-attack-the-campaign-to-keep-millions-of-americans-from-the-ball
http://www.brennancenter.org/content/resource/voting_rights_i


9

Section 5 jurisdictions also recently have 
proposed redistricting schemes that federal courts 
concluded were drafted with discriminatory intent 
and would have a discriminatory effect. For 
example, in August 2012, the United States District 
Court for the District of Columbia denied 
preclearance for Texas’ proposed redistricting plan 
for the United States House of Representatives.13

States government-issued photo identification or execute an 
affidavit of identity to vote; no other form of identification will 
be accepted. Id. Virginia recently passed a law that not only 
requires identification to vote, but also eliminates the option to 
confirm identity when voting or applying for an absentee 
ballot by signing an affidavit. Id. At least one amicus curiae 
argues that because this Court previously approved a voter- 
identification law passed in Indiana, which is not subject to 
Section 5, the Court must hold unconstitutional the 
Department of Justice’s insistence on the necessity of 
preclearing voter-identification laws in Section 5 jurisdictions. 
See generally Br. of the State of Texas as Amicus Curiae In 
Support Of Pet’r. In Crawford v. Marion County Election 
Board, this Court deferred to the judgment of the Indiana 
legislature regarding the necessity of a voter-identification 
law, reasoning that “[i]t is for state legislatures to weigh the 
costs and benefits of possible changes in their elections codes .
. . .” 553 U.S. 181, 208 (2008) (Scalia, J., concurring). If the 
Court is willing to defer to the Indiana legislature’s judgment, 
despite the minimal amount of evidence on which that 
judgment was based, this Court likewise should defer to 
Congress’ judgment in reauthorizing Section 5, which was 
made upon a far more extensive evidentiary record. See, Nat’l 
Fed’n of Indep. Bus. u. Sebelius, 132 S. Ct. 2566, 2579-80 
(2012) (“Members of this Court are vested with the authority 
to interpret the law; we possess neither the expertise nor the 
prerogative to make policy judgments.”).

13 Texas v. United States, Civ. A. No. 11-1303, 2012 WL 
3671924 (D.D.C. Aug. 28, 2012). The court also denied



10

Between 2000 and 2010, the population of 
Texas grew by more than four million people.* 14 
Texas therefore gained four seats in Congress and 
needed to redraw its congressional districts.15 
Section 5 required Texas to submit its plan for 
preclearance. The court found, however, that the 
proposed plan had a discriminatory intent and 
would have had a discriminatory effect. 
Specifically, the court found a discriminatory effect 
because the proportion of congressional districts in 
which African Americans and Hispanics had the 
ability to elect candidates of their choice (often 
referred to as “ability districts”16) decreased under 
the proposed plan.17 The court found that the plan 
had a discriminatory intent because, among other 
things, Texas had redrawn ability districts in a way 
that (a) moved their main source of economic growth 
to non-ability districts, but made no such changes to 
non-minority districts,18 and (b) excluded African- 
American and Hispanic members of Congress from 
the drafting process.19 The court therefore denied 
preclearance for Texas’ revised congressional plan.20

It is particularly surprising that am icus 
curiae the State of Alabama argues that voter 
discrimination is no longer a problem because just

preclearance for Texas’ revised districting plans for State 
Senate and State House of Representatives. Id.

14 Id. at *1.
is Id.
16 Id. at *2 (citing 42 U.S.C. § 1973c(b) (2006)).
17 Id. at *18.
is Id. at *19-20.
is Id. at *21.
20 Id. at *37.



11

last year, under Section 5, the United States 
District Court for the Southern District of Alabama 
enjoined Evergreen, Alabama from employing a 
potentially discriminatory redistricting plan.21 In 
2011 and 2012, Evergreen attempted to implement 
a new voter redistricting plan after the 2010 census 
revealed that, since 2000, the city’s African- 
American population had increased and its 
Caucasian population had declined.22 The proposed 
plan packed the African-American population into 
two of the city’s five voting districts, and fragmented 
the remaining African-American population among 
the other three districts.23 The city adopted this 
plan without any meaningful participation from the 
African-American community.24 It also did not 
submit the plan for preclearance review until June 
12, 2012, and failed to provide all of the information 
necessary for preclearance until July 23, 2012—only 
36 days before the August 28, 2012 election.25

21 See Partial Consent Agreement at 5, Allen v. City of 
Evergreen, Ala., C.A. No. l:12-cv-00496-CB-M (S.D. Ala. Aug. 
20, 2012) [hereinafter Allen Consent Agreement],

22 Id. at 3; Complaint at 5, Allen v. City of Evergreen, 
Ala., C.A. No. l:12-cv-00496-CB-M (S.D. Ala. Aug. 6, 2012) 
[hereinafter Allen Complaint],

23 Id. at 8.
24 Brief of Points and Authorities in Support of Motion 

For Court-Ordered Redistricting Plan at 9, Allen v. City of 
Evergreen, Ala., C.A. No. l:12-cv-00496-CB-M (S.D. Ala. Dec. 
12, 2012) (stating that “black citizens sought in vain changes 
in district boundaries which would give them a more equal 
opportunity to elect candidates of their choice”).

23 Allen Complaint, supra note 22, at 8-9; Allen Consent 
Agreement, supra note 21, at 3. Evergreen also failed to 
request expedited consideration for preclearance, which would



12

Despite its failure to obtain Section 5 preclearance, 
Evergreen began to conduct the 2012 election for 
mayor and council members using the 2012 plan.26 
As a result, the court enjoined further use of the 
2012 plan and delayed Evergreen’s elections.27

Although 2013 is not exactly 1965, as 
demonstrated above, the vestiges of that damaging 
period remain strong and discrimination in Section 
5 jurisdictions is not a thing of the past.

B. Section 2 Is An Insufficient 
Remedy To Voting Discrimination

Petitioners and their amici curiae also argue 
that Section 5 is unnecessary because Section 2 
provides adequate protection against efforts to 
infringe minorities’ right to vote. But Section 2 of 
the Voting Rights Act is a backward-looking remedy

have averted, or at least lessened, the law’s potential 
discriminatory impact. Allen Complaint at 8-9.

26 Allen Consent Agreement, supra note 21, at 3.
27 Id. at 6. Similarly, a mere matter of weeks ago, the

Virginia state Senate passed a redistricting plan that some 
observers contend is racially motivated. See Ryan J. Reilly, 
Virginia Redistricting Plan “Shameful, ” Says State Sen. Henry 
Marsh, Huffington Post, (Jan. 23, 2013, 5:31 PM)
http://www.huffingtonpost.com/2013/01/22/virginiaredistrictin 
g_n_2528519.html. Because Virginia is subject to Section 5, if 
necessary, the preclearance process would ensure that the 
plan would not take effect unless the state demonstrated that 
it has neither a discriminatory purpose nor a discriminatory 
effect. As addressed below, infra Part I.B., if the plan was 
subject only to a Section 2 post hoc challenge, it potentially 
could impact multiple elections before a challenge was 
litigated to conclusion.

http://www.huffingtonpost.com/2013/01/22/virginiaredistrictin


13

that, alone, is an insufficient antidote to 
discriminatory voting practices.

Before Congress enacted the Voting Rights 
Act of 1965, the Department of Justice brought 
individual lawsuits against jurisdictions with 
discriminatory voting practices,28 similar to the way 
the Department of Justice and individual plaintiffs 
can bring lawsuits under Section 2.29 As this Court 
has noted, however, litigation of voting rights cases 
is “exceedingly slow” and “usually onerous to 
prepare,” in part because the plaintiff must collect 
copious amounts of documentation about the 
discrimination.30 Section 2 requires that a 
discriminatory policy go into effect potentially for 
several election cycles before there is enough 
evidence to bring a successful Section 2 challenge.31

Further, few potential plaintiffs want to 
pursue Section 2 cases because they require “huge

28 Vernon Francis et al., Preserving a Fundamental
Right: Reauthorization of the Voting Rights Act, Lawyers’ 
Committee for Civil Rights Under Law 1 (2003),
http://faculty.washington.edu/mbarreto/coursesAloting_Rights.

pdf.
29 See 42 U.S.C. § 1973 (2006).
30 South Carolina v. Katzenbach, 383 U.S. 301, 314 

(1966).
si Voting Rights Act: Section 5 of the Act- History, Scope 

and Purpose: Hearing Before the Subcomm. On the
Constitution of the H. Comm, on the Judiciary, 109th Cong. 54 
(2005) (statement of Nina Perales, Regional Counsel for the 
Mexican American Legal Defense and Educational Fund); see 
also Pamela S. Karlan, Two Section Twos and Two Section 
Fives: Voting Rights and Remedies After Flores, 39 Wm. & 
Mary L. Rev. 725, 736 (1998) (internal citation omitted).

http://faculty.washington.edu/mbarreto/coursesAloting_Rights


14

amounts of resources in the litigation process to be 
used, both by the jurisdictions and by the individual 
citizens.”32 While a few nonprofit organizations 
represent plaintiffs in voting rights cases, they have 
limited resources,33 and the voting rights bar as a 
whole is very small.34 Even when a violation of the 
Voting Rights Act is “blatant,” costs can be 
staggering: in one case with multiple, well
established examples of discrimination, a plaintiffs’ 
attorney worked 5,525 hours and spent $96,000 in 
out-of-pocket expenses, “exclusive of expenses 
incurred by Justice Department lawyers after the 
department intervened [in support of the plaintiffs] 
and the costs of expert witnesses and paralegals.”35

Because Section 2 requires such massive 
efforts and imposes such extensive costs, striking 
down Section 5, and thus having Section 2 as the 
only remaining means to address discrimination

32 The Continuing Need for Section 5 Pre-Clearance:
Hearing Before the Senate Comm, on the Judiciary, 109th 
Cong. 15 (2006), available at
http://www.gpo.gov/fdsys/pkg/CHRG-109shrg28753/pdf/CHRG- 
109shrg28753.pdf [hereinafter Continuing Need].

33 See Michael Halberstam, The Myth of “Conquered 
Provinces”: Probing the Extent of the VRA’s Encroachment on 
State and Local Autonomy, 62 Hastings L.J. 923, 956 (2011) 
(citing Gregory A. Caldeira, Litigation, Lobbying, and the 
Voting Rights Bar, in Controversies in Minority Voting: The 
Voting Rights Act in Perspective 230-57 (Bernard Grofman & 
Chandler Davidson eds., 1992)).

34 Continuing Need, supra note 32, at 15 (statement of 
Anita Earls, Director of Advocacy, Center for Civil Rights).

35 Karlan, supra note 31, at 736 (internal citation 
omitted).

http://www.gpo.gov/fdsys/pkg/CHRG-109shrg28753/pdf/CHRG-109shrg28753.pdf
http://www.gpo.gov/fdsys/pkg/CHRG-109shrg28753/pdf/CHRG-109shrg28753.pdf


15

“would quite plausibly leave literally thousands of 
unconstitutional systems in place.”36

C. Section 5 Deters Discriminatory 
Practices

Section 5 deters discrimination by placing the 
burden and cost of litigating discriminatory 
practices on covered jurisdictions, rather than 
placing that burden on victims of discrimination. 
Under Section 5, covered jurisdictions must prove 
that a proposed rule has neither a discriminatory 
intent nor effect. This serves to address the reality 
of discrimination and the shortfalls of Section 2.37 
In fact, as Congress explained:

Section 5 was a response to a common 
practice in some jurisdictions of staying one 
step ahead of the federal courts by passing 
new discriminatory voting laws as soon as the 
old ones had been struck down. . . . Congress 
therefore decided . . .  to shift the advantage of 
time and inertia from the perpetrators of the 
evil to its victim [.]38

Section 5 additionally deters discrimination 
through its requirement that a covered jurisdiction 
seeking preclearance must specify the extent to 
which minorities were involved in its decision­
making process.39 In practice, this requirement

36 Id.
37 See 42 U.S.C. § 1973c (2006).
38 See Francis, supra note 28, at 26 n.113 (quoting H.R. 

Rep. No. 94-196, at 57-58 (1975)).
38 Id.



16

deters discrimination by “encouraging] local 
jurisdictions to consult and involve local minority 
representatives in the preclearance process,”40 
which will highlight the potential for discriminatory 
effect before  measures are enacted.

Section 5 also provides that during the 
preclearance review process, if the Department of 
Justice preliminarily finds that some aspect of a 
proposed rule change is discriminatory, or that it 
needs additional information about a proposed rule 
change, it will request additional information from 
the jurisdiction.41 Congress, scholars, and voting 
rights attorneys alike have found that such requests 
(which are referred to as “more information 
requests” or “MIRs”) deter covered jurisdictions 
from enacting discriminatory procedures because, in 
practice, many jurisdictions withdraw requests for 
preclearance when they receive such a request.42

Between 1990 and 2005, the Department of 
Justice issued 885 MIRs in response to which the

40 Halberstam, supra note 33, at 958.
41 Id. at 963.
42 See, e.g., Ana Henderson & Christopher Edley, Jr.,

Voting Rights Act Reauthorization: Research-Based
Recommendations to Improve Voting Access, The Chief Justice 
Earl Warren Institute on Race, Ethnicity and Diversity, 9-10 
(2006),
http://www.law.berkeley.edu/filesAyarren_Inst._VRA_policy_r 
eport5-5.pdf (citing Luis Ricardo Fraga & Maria Lizet Ocampo, 
More Information Requests and the Deterrent Effect of Section 
5 of the Voting Rights Act, Chief Justice Earl Warren Institute 
on Race, Ethnicity and Diversity,
http://www.law.berkeley.edu/files/ch_3_fraga_ocampo_3-9- 
07.pdf); H.R. Rep. No. 109-478, at 3.

http://www.law.berkeley.edu/filesAyarren_Inst._VRA_policy_r
http://www.law.berkeley.edu/files/ch_3_fraga_ocampo_3-9-07.pdf
http://www.law.berkeley.edu/files/ch_3_fraga_ocampo_3-9-07.pdf


17

covered jurisdiction either (i) changed its 
preclearance submission, (ii) withdrew its request 
for preclearance, or (iii) ignored the MIRs, which is 
the functional equivalent of withdrawal because the 
jurisdiction cannot implement the proposed 
change.43 Ultimately, the Department of Justice 
objected to 365 submissions during that time 
period.44

For example, in Monterey County, California, 
election officials sought to reduce the number of 
polling places for a recall election for governor.45 In 
response to an MIR, Monterey County withdrew its 
request for preclearance of five of its proposed 
precinct consolidations.46 The Department of 
Justice ultimately granted preclearance, but as 
Congress noted, “ [ajbsent Section 5 coverage there 
would not have been a withdrawal of these 
particular polling place consolidations.”47 As 
Congress has concluded, the frequency with which 
MIRs result in preclearance withdrawals 
demonstrates that Section 5’s “strength lies not only 
in the number of discriminatory voting changes it 
has thwarted . . . [but also] in the discriminatory 
voting changes that have never materialized.”48

Additionally, a jurisdiction must prove that 
its proposed changes are not discriminatory or the

43 Henderson & Edley, supra note 42, at 11.
44 Id.
45 H.R. Rep. No. 109-478, at 41 (internal citation 

omitted).
46 Id.
47 Id.
48 Id. at 36.



18

Department of Justice will deny preclearance. This 
denial of preclearance also prevents discriminatory 
rules from taking effect.

For example, in 2012, a parish in the State of 
Louisiana (a Section 5 jurisdiction), enacted a new 
redistricting plan that would have significantly 
lowered the percentage of potential African- 
American voters in one of the districts in the Parish, 
mainly by adding a new, primarily white, area to 
the district.49

The Parish claimed these changes were 
necessary to prevent the district from being under­
populated, but the United States Department of 
Justice rejected that argument and noted that the 
district was only the third-least populated district 
without the proposed plan, and that adding the new 
area made it over-populated and violated the 
Constitution’s one-person, one-vote requirement.50 
The Parish did not explain why it had not made 
simple non-discriminatory changes to the district by 
adding adjacent areas that had fewer people and 
were majority African-American. The Department 
of Justice therefore concluded that the Parish had

49 Letter from Thomas E. Perez, Assistant Attorney 
General, to Nancy P. Jensen, Baton Rouge, Louisiana (October 
3, 2011) in Voting Rights Act Objections and Observers 
Searchable Index,
http://lawyerscommittee.org/projects/section_5/ (Search by 
“Objection Letter”; then “State-Louisiana”; then “Published 
after 10/01/2011”; click “Search” and then click the PDF icon), 

so id.

http://lawyerscommittee.org/projects/section_5/


19

not established that the plan was adopted without a 
discriminatory purpose.51

Similarly, in Texas, when a Section 5 
jurisdiction attempted to decrease the number of 
polling places from 84 to 12, the Department of 
Justice objected.52 Had the proposed change taken 
effect, it would have disproportionately burdened 
minority and low-income individuals because they 
are less likely to have the transportation necessary, 
or the flexibility to take the time off of work, to 
travel to the fewer and more distant polling 
places.53 Moreover, the Department of Justice 
found that if the jurisdiction implemented the 
change, “the site with the smallest proportion of 
minority voters served just 6,500, while the site that 
served a population that was 79.2% African 
American and Hispanic served over 67,000 voters.”54 
If not for Section 5, the proposed change would have 
been enacted and minority voters would have 
suffered.

II. WHEN SECTION 5 IS NO LONGER 
NECESSARY IN A COVERED 
JURISDICTION, THAT JURISDICTION 
CAN “BAIL OUT” OF SECTION 5

When covered jurisdictions have “eliminate[d] 
practices denying or abridging opportunities for 
minorities to participate in the political process,”55

si Id.
52 Continuing Need, supra note 32, at 4.
53 Id.
54 Id. at 4-5.

S. Rep. No. 97-417, at 44, 59.55



20

Section 4(e) of the Voting Rights Act expressly 
allows such jurisdictions to “bail out” of Section 5. 
This mechanism—which the congressional record 
shows is “easily proven for jurisdictions that do not 
discriminate in their voting practices”56—ensures 
that the means by which Congress seeks to correct 
past discrimination are “neither permanent nor 
overbroad.”57 Moreover, hundreds of jurisdictions 
have “bailed out” of Section 5.58 In fact, every 
jurisdiction that has sought to bail out has 
established that it was entitled to bail out.59 
Petitioner here has not, however, even attempted to 
bail out or to establish that it has corrected past 
discrimination.60

Under Section 4(e) of the Voting Rights Act, a 
covered jurisdiction bails out of Section 5 by proving 
that it currently does not engage in discriminatory 
practices and has not done so in the past ten

56 Voting Rights Act: An Examination of the Scope and 
Criteria for Coverage Under the Special Provision the Act: 
Hearing Before the Subcomm. on the Constitution of the H. 
Comm, on the Judiciary, 109th Cong. 90 (2005).

57 H.R. Rep. No. 109—478, at 25; see also City of Boerne v. 
Flores, 521 U.S. 507, 533 (1997) (noting that the bailout 
provision of the Voting Rights Act the Voting Rights Act’s 
means are proportionate to its ends).

58 Shelby Cnty., Ala. v. Holder, 679 F.3d 848, 881 (D.C. 
Cir. 2012) (citing U.S. Dep’t of Justice, Section 4 of the Voting 
Rights Act,
http://www.justice.gOv/crt/about/vot/misc/sec_4.php#bailout_lis 
t (last visited Jan. 29, 2013)).

59 Id.
60 Id. at 857.

http://www.justice.gOv/crt/about/vot/misc/sec_4.php%23bailout_lis


21

years.61 Moreover, if, after an independent 
investigation, the Department of Justice finds that a 
covered jurisdiction has demonstrated by “objective 
and compelling evidence” that it satisfied Section 
4(e), the Department of Justice may consent to the

61 Specifically, the jurisdiction must prove that it 
currently is seeking to expand minority participation in the 
political process and has, at no time in the preceding ten 
years:

(1) used a voter-eligibility requirement that had 
the purpose or effect of “denying or abridging” the 
right to vote based on race, color, or membership in a 
language-minority group;
(2) maintained voting procedures that inhibit or 
dilute equal access to voting;
(3) had a final judgment entered against it, or 
entered into a consent decree or settlement agreement, 
finding that it had employed discriminatory voting 
practices;
(4) been assigned a federal observer to monitor 
elections held in the jurisdiction;
(5) failed to timely submit voting changes for 
preclearance applications or to timely withdraw 
unapproved changes as required under Section 5;
(6) had any preclearance applications opposed by 
the Department of Justice and United States District 
Court for the District of Columbia;
(7) allowed known harassment or intimidation of 
voters to persist; nor
(8) violated any voting-related provision of the 
Constitution, state, or federal law (unless such 
violation was “trivial,” “properly corrected,” or “not 
repeated”).

See 42 U.S.C. 1973b(a)(l), (a)(3) (2006); see also Fannie Lou 
Hamer, Rosa Parks, and Coretta Scott King Voting Rights Act 
Reauthorization and Amendments Act of 2006, Pub. L. No. 
109-246, § 13(d)(2), 120 Stat. 580 (July 27, 2006) (providing 
additional detail on the enumerated factors); S. Rep. No. 9 7 -  
417, at 53 (same).



22

jurisdiction’s request to bail out.62 A jurisdiction 
that has complied with the Voting Rights Act thus 
can “exempt itself’ from Section 5 quickly and 
efficiently.63

In total, as of May 9, 2012, there were 136 
covered jurisdictions and sub-jurisdictions that had 
successfully bailed out.64 Indeed, since Congress 
liberalized bailout in 1982 to “incentiv[ize] 
jurisdictions to attain compliance with the law and 
increasje] participation by minority citizens in the 
political process in their community,”65 every single 
jurisdiction that has sought to bail out has done so

62 42 U.S.C. § 1973b(a)(9). It is worth noting, however, 
that even if a covered jurisdiction bails out, its declaratory 
judgment action can be reopened within ten years should the 
Department of Justice or an aggrieved person allege conduct 
that would have barred bailout had it occurred during the ten 
years preceding the jurisdiction’s bailout application. Id. 
§ 1973b(a)(5).

63 J. Gerald Hebert & Renata E. B. Strause, The Future 
of the Voting Rights Act, 64:4 Rutgers L. Rev. 953, 965 (2012) 
(quoting H.R. Rep. No. 89—439, at 15 (1965)).

64 Shelby Cnty., 679 F.3d at 856 (citing U.S. Dep’t of 
Justice, Section 4 of the Voting Rights Act, 
http://www.justice.gOv/crt/about/vot/misc/sec_4.php#bailout_lis 
t (last visited Jan. 29, 2013)). Petitioners and/or their amici 
curiae argue that the prospect of bailout is “illusory” because a 
state’s ability to bailout can be hindered by its subdivision’s 
actions. See, e.g., Br. of Arizona, Georgia, South Carolina, and 
South Dakota as Amici Curiae in Support of Pet’r at 27-30. 
This is, however, at best an argument for further liberalizing 
Section 4(e), not for striking down Section 5.

65 Hebert, supra note 2, at 262 (quoting S. Rep. No. 97 - 
417, at 44); see also Shelby Cnty., 679 at 856 (noting that “the 
1982 version of the Voting Rights Act made bailout 
substantially more permissive”).

http://www.justice.gOv/crt/about/vot/misc/sec_4.php%23bailout_lis


23

successfully.66 More than 100 jurisdictions 
currently have bailout applications pending.67

Moreover, the Voting Rights Act does not 
require jurisdictions to be perfect in order to bail 
out; a jurisdiction can bail out despite its failure to 
comply with Section 5 preclearance so long as any 
such failure was “trivial,” “properly corrected,” or 
“not repeated.”68 This flexibility has enabled once-

66 Shelby Cnty., 679 F.3d at 882.
67 Id. Most recently, the Department of Justice and the

State of New Hampshire filed a joint motion for a consent 
decree to the United States District Court for the District of 
Columbia stating that New Hampshire has met the 
requirements laid out in Section 4(e), and thus is entitled to 
bailout. Joint Motion for Entry of Consent Judgment and 
Decree, New Hampshire v. Holder, No. l:12-cv-01854 (D.C. 
Cir. Dec. 21, 2012). The District Court’s ruling is pending. At 
least one interest group has sought to intervene in New 
Hampshire’s bailout action (and thus stop preclearance). See 
Ryan J. Reilly, Conservative Group Attempts to Block New 
Hampshire’s Bailout from Voting Rights Act, Huffington Post, 
(Jan. 2, 2013, 4:59 PM)
http://www.huffingtonpost.com/2013/01/02/new-hampshire-
voting-rights-act_n_2397801.html. The Department of Justice 
has argued that such permissive intervention should not be 
granted because the interest group’s “purpose appears to be to 
advance” Petitioner’s position in this action, rather than a 
legitimate concern regarding the merits of New Hampshire s 
compliance with the Voting Rights Act. See Plaintiffs 
Memorandum of Points and Authorities in Opposition to 
Heilemann’s Motion to Intervene at 15, New Hampshire v. 
Holder, No. l:12-cv-01854 (D.C. Cir. Dec. 19, 2012).

es 42 U.S.C. § 1973b(a)(3); S. Rep. No. 97-417, at 53. See, 
e g., Consent Judgment and Decree at 6, Augusta Cnty., Va. v. 
Gonzalez, No. 05-1885 (D.D.C. Nov. 30, 2005) (granting bailout 
where covered jurisdiction had implemented minor changes to 
its electoral procedures without first seeking preclearance).

http://www.huffingtonpost.com/2013/01/02/new-hampshire-


24

bad actors” who have meaningfully eliminated 
discrimination to bail out.69

For example, on August 31, 2012, the United 
States District Court for the District of Columbia 
granted a consent judgment and decree releasing 
Merced County, California from Section 5.70 Merced 
County had been a covered jurisdiction since 1975, 
when the Attorney General and Director of the 
Census determined that it fell under the Voting 
Rights Act’s coverage formula because the County 
provided registration and voting materials only in 
English and more than five percent of voting-age 
citizens in the County spoke only Spanish.71 Since 
at least 2002, however, (i.e., the ten years preceding 
the County’s bailout), and during the pendency of 
the bailout action, Merced County provided voter

For example, the Department of Justice will allow a 
jurisdiction that inadvertently failed to submit minor rule 
changes for preclearance to submit such changes for clearance 
while applying for bail out so long as the jurisdiction 
establishes that it was not seeking to evade the preclearance 
process. See Hebert, supra note 2, at 273.

69 Hebert & Strause, supra note 63, at 967. In fact, 
Congress expressly acknowledged that the preclearance 
provision should apply only to jurisdictions so long as those 
jurisdictions were unable to correct discriminatory practices on 
their own, and thus liberalized the bailout provision. See H.R. 
Rep. No. 109-478, at 10, 25; see also Hebert & Strause, supra 
note 63, at 955-56 (noting that when Congress renewed the 
Voting Rights Act in 1982, it did not change the coverage 
formula, but it did amend the provisions under which 
jurisdictions can bail out).

70 Consent Judgment and Decree at 14, Merced Cnty., 
Cal. v. Holder, No. l:12-cv-00354 (D.C. Cir. Aug. 31, 2012) 
[hereinafter Merced County Consent Judgment and Decree].

71 Id. U 40; see also 40 Fed. Reg. 43,746 (Sept. 23, 1975).



25

registration materials in both English and Spanish, 
provided in-person bilingual assistance at all polling 
places, and printed all signs, ballots, and sample 
ballots in both English and Spanish.72

Although Merced County had failed to submit 
several potential voting changes for preclearance 
during the ten years preceding its bailout action, 
the Department of Justice determined after an 
independent investigation that “the [County’s] 
failure to make such submissions prior to 
implementation was inadvertent or based on a good 
faith belief the changes were not covered by Section 
5 [rather than] the product of any discriminatory 
reason.”73 Additionally, as soon as the Department 
of Justice notified Merced County of these errors, 
the County submitted those proposed rule changes 
to the Department of Justice for approval.74 The 
Department of Justice did not object to the late- 
submitted requests and found that “objective and 
compelling evidence” demonstrated that Merced 
County, including its eighty-four political 
subdivisions, had met the requirements of Section 
4(e).75 The Department of Justice therefore agreed

72 Merced County Consent Judgment and Decree, supra 
note 70, KH 22-23.

73 Id. 1 29.
74 Id.
75 See 42 U.S.C. § 1973b(a)(9). The Department of 

Justice found that Merced County met all other enumerated 
requirements to bail out. For example, Merced County had 
submitted 252 preclearance requests in the preceding ten 
years. See Merced County Consent Judgment and Decree, 
supra note 70, f  29. The Department of Justice had not 
objected to a preclearance request from Merced County for



26

that Merced County had corrected its previous 
language-related discriminatory voting practice and 
was entitled to bail out of Section 5’s preclearance 
requirement.76 The District Court agreed and 
entered judgment for Merced County.77

Unlike Merced County and the hundreds of 
other jurisdictions that have been excused from 
Section 5 by correcting past discrimination, 
Petitioner has never sought to bail out.78 This is not 
surprising, given that the Department of Justice 
recently has objected to annexations and 
redistricting plans proposed in Shelby County and 
because the County recently has failed to seek 
preclearance on multiple occasions.79 
Discrimination therefore persists in Shelby 
County80—as it does in many Section 5
jurisdictions—and Petitioner should not be 
permitted to escape its obligations under the Voting 
Rights Act. If and when Petitioner “eliminate [s] 
practices denying or abridging opportunities for

over ten years. Id. U 19. Although Merced County did have 
one Section 5 suit filed against it in 2006, that case did not go 
to judgment, and thus did not preclude bailout. See id. H 28; 
see also Lopez v. Merced Cnty., Cal., 473 F. Supp. 2d 1072 
(E.D. Cal. 2007). The Court also found that Merced County 
had “engaged in a variety of constructive efforts” to correct 
prior discrimination. See Merced County Consent Judgment 
and Decree, supra note 70, If 40 (citing 42 U.S.C. 
§ 1973b (a) (1) (F)(iii)).

76 See Merced County Consent Judgment and Decree, 
supra note 70, fH 7-9, 13, 31.

77 See id. at 16.
78 Shelby Cnty., Ala., 679 F.3d at 882.
78 Id.
so Id. at 857.



27

minorities to participate in the political process,”81 
then it can bail out of Section 5.

*  *  *

As demonstrated above, discrimination 
against minority voters persists and Section 5 
deters jurisdictions from enacting voting procedures 
that have discriminatory intent or effect in a way 
that post hoc litigation cannot do. Moreover, to the 
extent a covered jurisdiction demonstrates that is 
has corrected past discriminatory practices—which 
Petitioner has not even attempted to do—that 
jurisdiction will no longer be subject to federal 
oversight under Section 5. Section 5 thus remains a 
meaningful and proportionate guardian of the 
fundamental right to vote and should be upheld.

January 31, 2013 

John Page
NATIONAL BAR

ASSOCIATION 
1225 11th St., N.W. 
Washington, DC
20001
(202) 842-3900

Respectfully submitted,

Jonathan M. Cohen 
Counsel of Record 

Mark A. Packman 
Adrian C. Azer 
Ivan J. Snyder 
Michelle A. Price 
Jenna A. Hudson 
GILBERT LLP 
1100 New York Ave., N.W., 
Suite 700
Washington, DC 20005 
(202) 772-2259 
cohenj@gotofi.rm.com

si S. Rep. No. 97-417, at 44, 59.

mailto:cohenj@gotofi.rm.com




No. 12-96

In The

^upremg (Uourt of the Hmtgft ^tatgH

Sh elby  Cou n ty , A labam a ,
Petitioner,

v.

Eric H. H o ld er , Jr ., A tto rn ey  General of the U nited  Sta t e s , e t al.,
_____________________________  Respondent.
AFFIDAVIT OF SERVICE

I HEREBY CERTIFY that all parties required to be served, have been served, on this 
31st day of January, 2013, in accordance with U.S. Supreme Court Rule 29.5(c), three 
(3) copies of the foregoing BRIEF OF AMICUS CURIAE  NATIONAL BAR 
ASSOCIATION IN SUPPORT OF RESPONDENTS by placing said copies with U.S. 
Mail, First Class Mail, postage prepaid, addressed as listed below. I further certify 
that in accordance with U.S. Supreme Court Rule 25.9 an electronic version of the 
foregoing was sent to the parties listed below:

Bert W. Rein 
Wiley Rein LLP 
1776 Iv Street, NW 
Washington, DC 20006 
brein@wileyrein.com

Donald B. Verrilli, Jr.
Solicitor General of the United States 
United States Department of Justice 
950 Pennsylvania Avenue, NW 
Washington, DC 20530-0001 
SupremeCtBriefs@usdoj.gov

Debo P. Adegbile 
NAACP Legal Defense

& Educational Fund, Inc.
99 Hudson Street 
16th Floor
New York, NY" 10013 
dadegbile@naacpldf.org

Jon M. Greenbaum 
Lawyers’ Committee for

Civil Rights Under Law 
1401 New York Avenue, NW 
Suite 400
Washington, DC 20005 
jgreenbaum@lawyerscommittee.org

Laughlin McDonald 
American Civil Liberties 

Union Foundation 
230 Peachtree Street, NW 
Suite 1440
Atlanta, GA 30303-1227 
lmcdonald@aclu.org

mailto:brein@wileyrein.com
mailto:SupremeCtBriefs@usdoj.gov
mailto:dadegbile@naacpldf.org
mailto:jgreenbaum@lawyerscommittee.org
mailto:lmcdonald@aclu.org


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Byk6 n  S. A d a m s , Le g a l  & Co m m e r c ia l  Printers  

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Sworn to and subscribed before me this 31st day of January, 2013.

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My commission expires April 30, 2014.



No. 12-96

In  T h e

upretne Court of t\)t ®mteb States*

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

v.

E ric  H . H o l d e r , Jr . A t t o r n e y  G e n e r a l , et al.,
Respondents.

CERTIFICATE OF WORD COUNT

As required by Supreme Court Rule 33.1(h), I declare that the Brief of 
Amicus Curiae National Bar Association In Support of Respondents in case No. 12- 
96 contains 6,200 words, excluding parts of the document that are exempted by 
Supreme Court Rule 33.1(d).

I declare under penalty of perjury that the foregoing is true and correct.

Executed on the^L th  day of January, 2013.

Jonathan M. Cohen 
Counsel o f Record, 

G il b e r t  LLP
1100 New York Avenue, N.W., Suite 700 
Washington, DC 20005 
(202) 772-2259 
cohenj@gotofirm.com

mailto:cohenj@gotofirm.com


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