Shelby County v. Holder Brief Amici Curiae

    No. 12-96

In The

Supreme Court of tl)t ®ntteb States;
Sh elby  Co u n ty , A lab am a , 

v.
Petitioner,

Eric H. H o ld er , Jr ., A tto rn ey  G eneral  of the 
U nited  States of A m e r ic a , et a l .,

Respondents.
On Writ of Certiorari to the 

United States Court of Appeals for the 
District of Columbia Circuit

BRIEF OF THE LEADERSHIP CONFERENCE 
ON CIVIL AND HUMAN RIGHTS AND THE 
LEADERSHIP CONFERENCE EDUCATION 

FUND ET AL. AS AMICI CURIAE IN SUPPORT 
OF RESPONDENTS

Lisa M. Bornstein 
The Leadership Confer­

ence on Civil and Hu ­
man Rights 

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

Matthew  M. Hoffman
(Counsel of record) 

Stephen J. Pollak 
John Townsend Rich 
SlRISHA V. KALICHETI 
Ella A. Capone 
Goodwin Procter LLP 
901 New York Ave., N.W. 
Washington, DC 20001 
(202) 346-4000

Counsel for Amici Curiae 

February 1, 2013



TABLE OF CONTENTS
Page

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

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

SUMMARY OF ARGUMENT...................................2

ARGUMENT.............................................................6

I. There Is Real and Substantial Risk That 
the Progress Made in Combatting Voting 
Discrimination Since 1965 Will Be Eroded
If § 5 Is Invalidated.............................................6

A. History Shows That Gains In Minority
Political Participation Can Be Reversed 
When Remedial Laws Are Invalidated...... 7

B. Recent Court Decisions Show That
Without the Protection of § 5 Many 
Covered Jurisdictions Would Adopt 
Practices That Abridge Minority Voting 
Rights.......................................................... 14

II. Congress’s Decision To Reauthorize § 5 and
To Retain the Existing Coverage Formula 
Are Amply Supported by the Legislative 
Record and Are Entitled to Deference.............20

A. Congress Reasonably Concluded on an 
Extensive Record That Discriminatory 
Voting Practices Still Continue in the 
Covered Jurisdictions.................................24



B. Congress’s Decision To Retain the 
Existing Coverage Formula Was 
Reasonable..................................................28

III. The Coverage of § 5 Will Likely Be Reduced 
Over Time Through the Application of the 
Bailout Mechanism...........................................33

CONCLUSION........................................................35

APPENDIX A: The Leadership Conference on Civil 
and Human Rights Participating 
Member Organizations

APPENDIX B: Additional Amici Curiae



Ill
TABLE OF AUTHORITIES

teases: Page
City of Boerne v. Flores, 521 U.S. 507 (1997)..........22
Crawford v. Marion County Election Board,

553 U.S. 181 (2008)..........................................14, 15
Florida u. United States, No. 11-1428, 2012 

U.S. Dist LEXIS 115647 (D.D.C. Aug. 16,
2012) .................................................................16, 17

Jeffers u. Clinton, 740 F. Supp. 585, 626-27 
(E.D. Ark, 1990)......................................................32

New York Trust Co. v. Eisner, 256 U.S_345 
(1921)........................................................................ 6

Northwest Austin Municipal Utility District 
Number One v. Holder, 577 U.S. 193 
(2009)..................................................................7,28, 34

South Carolina v. United States, No. 12-203,
2012 U.S. Dist LEXIS 146187 (D.D.C 
Oct. 10, 2012)..........................................................17, is

Texas v. Holder, No. 12-cv-128, 2012 U.S. Dist 
LEXIS 127119 (D.D.C. Aug. 30, 2012)...........15, 16

Texas v. United States, No. 11-1303, 2012 U.S.
Dist. LEXIS 121685 (D.D.C. 2012)....................... 19, 20

Turner Broad. Sys., Inc. u. FCC, 520 U.S. 180 
(1997) ......................................................5, 21, 22, 23

United States v. Cruikshank, 92 U.S. 542 
(i876)..........................................................10, 11, 12

United States v. Reese, 92 U.S. 214 (1876)... 10, 11, 12



IV

Constitutional Provisions
U.S. Const, amend. XIV.................................... 2, 31
U.S. Const, amend. XV................................ 2, 3, 7, 31

Statutes:
Act of Feb. 28, 1871, ch. 99, 16 Stat. 433.................. 7
Enforcement Act of 1870, 16 Stat. 140...................... 7
Fannie Lou Hamer, Rosa Parks, and Coretta 

Scott King Voting Rights Act 
Reauthorization and Amendments Act of 
2006, Pub L. No. 109-246, 120 Stat. 577 
(2006):
§ 2(b)(3)................................................................ 24
§ 2(b)(4)(A).................................................... 25, 27
§ 2(b)(4)(B)........................................................... 27
§ 2(b)(7)........................................................... 20-21
§ 2(b)(9)................................................................ 21
§ 3(c).....................................................................30

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

§ 2, 42 U.S.C. § 1973........................................... 29
§ 3(c), 42 U.S.C. § 1973a(c)................................. 32
§ 4(a), 42 U.S.C. § 1973b(a)................................ 32
§ 5, 42 U.S.C. § 1973c.................................passim

Legislative History:
152 Cong. R e c . 14,303 (2006)..................................24
152 Cong. r e c . 14,273-74 (2006).............................30
152 Cong. R e c . 14,275 (2006)..................................31
152 Cong. R e c . 14,301 (2006)..................................31
152 CONG. R e c . 15,325 (2006)..................................24



V

Extension of the Voting Rights Act: Hearings 
Before the Subcomm. on Civil and Constitu­
tional Rights of the H. Comm, on the Judici­
ary, 97th Cong. (1981).............................................13

H.R. R e p . No. 109-478....................................... passim
S. R e p . No. 109-295 (2006)........................................ 23
To Examine the Impact and Effectiveness of the 

Voting Rights Act: Hearing Before the Sub­
comm. on the Constitution of the House 
Comm, on the Judiciary, 109th Cong. (2006)......29

Voting Rights Act: An Examination of the Scope 
and Criteria for Coverage Under the Special 
Provisions of the Act: Hearing Before the Sub­
comm. on the Constitution of the H. Comm.
On the Judiciary, 109th Cong. (2005)..............34-35

Other Authorities:
Travis Crum, Note, The Voting Rights Act’s Se­

cret Weapon: Pocket Trigger Litigation and 
Dynamic Preclearance, 119 YALE L.J. 1992 
(2010).............................................................................32

Eric  Fo n er , R eco n str u c tio n : Am e ric a ’s U n ­
finished  R evo lu tion  (1988).................. 8, 9, 11, 12

W illiam  G illette , R etreat  from  R e co n ­
stru ction  1869-1879 (1979)................................. 12

Bernard Grofman et al ., Minority Repre­
sentation and the Quest for Voting 
Equality (1992).....................................................7, 10



VI

J. Gerald Hebert, An Assessment of the Bailout 
Provisions of The Voting Rights Act, in VOT­
ING R ights A ct R eau th o rization  of 2006: 
P erspectives on D em ocracy , Pa r tic ipa ­
tio n , AND POWER 257 (Ana Henderson ed.,
2007)..............................................................................35

L eeA n n a  K e ith , T he Colfax  M assacre  
(2008)..................................................................... 11, 12

M ich ael  J. Kla r m a n , From  J im  Crow  to  Civil  
R ig h ts : T he Suprem e  Court  and  the  
Stru ggle  for  Racial  Equ ality  (2004)..........8, 10

Charles  La n e , The Da y  Freedom  D ie d : T he 
Colfax  M a ssa cr e , the  Suprem e  Co u rt , and  
the  B etrayal  of R eco nstruction  (2008)............ l l

1 G eorge  Sa n ta y a n a , The L ife of R e a so n ; o r ,
the  Phases of H um an  Progress  (1905)................. 6

Richard M. Valelly, The Two Reconstruc­
tions: The Struggle for Black Enfran­
chisement (2004).................................................. 7,10

2 Charles Warren, The Supreme Court in 
United States History (1922) 12



INTEREST OF AMICI CURIAE
The Leadership Conference on Civil and Human 

Rights (“The Leadership Conference”) is a coalition of 
over 200 organizations committed to the protection of 
civil and human rights in the United States.1 It is 
the nation’s oldest, largest, and most diverse civil 
and human rights coalition. The Leadership Confer­
ence was founded in 1950 by three legendary leaders 
of the civil rights movement—A. Philip Randolph, of 
the Brotherhood of Sleeping Car Porters; Roy Wil­
kins, of the NAACP; and Arnold Aronson, of the Na­
tional Jewish Community Relations Advisory Coun­
cil. Its member organizations represent people of all 
races and ethnicities.2 One of the missions of The 
Leadership Conference is to promote effective civil 
rights legislation and policy. The Leadership Confer­
ence was in the vanguard of the movement to secure 
'passage of the Civil Rights Acts of 1957, 1960 and 
1964, the Voting Rights Act of 1965 and the Fair 
Housing Act of 1968. It also played a leading role in 
gathering evidence to submit to Congress and coor­
dinating the efforts of the civil rights community in 
connection with the 2006 amendments to the Voting 
Rights Act that are at issue in this case.

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



2

The Leadership Conference Education Fund (“The 
Education Fund”) is the research, education, and 
communications arm of The Leadership Conference. 
It focuses on documenting discrimination in Ameri­
can society, monitoring efforts to enforce civil rights 
legislation, and fostering better public understanding 
of issues of prejudice. The Education Fund has pub­
lished studies and reports on many subjects, includ­
ing voting rights.

The Leadership Conference and The Education 
Fund believe that a vital national interest is at stake 
in this case. That national interest is the right of all 
citizens to vote free from discrimination and to 
choose leaders that represent their interests and, by 
doing so, to promote the influence of the United 
States throughout the world as a viable and vibrant 
democracy.

Several other organizations also join as signatories 
to this brief. These organizations are identified and 
their interests set forth in Appendix B.

SUMMARY OF ARGUMENT
Congress’s decision in 2006 to reauthorize § 5 of 

the Voting Rights Act for 25 years and to maintain 
the existing coverage formula was a reasonable and 
appropriate exercise of its enforcement authority un­
der the Fourteenth and Fifteenth Amendments. The 
jurisdictions covered by § 5 are places where discrim­
inatory voting practices have historically been se­
vere. While many of these jurisdictions have made 
substantial progress toward eliminating discrimina­
tory voting practices, the legislative record amassed 
by Congress—as well as more recent history—shows 
that these gains are fragile and that discriminatory 
practices still persist. This Court should not take the



3

extraordinary step of second-guessing Congress’s de­
termination that § 5 is still needed, given the funda­
mental nature of the right to vote, the careful delib­
eration that Congress gave to the matter, and the ex­
tensive factual findings on which Congress’s judg­
ment rests.

We make three key points below.
1. If § 5 were to be invalidated, there is a real 

and substantial risk that the progress made in the 
covered jurisdictions since 1965 would be rolled back. 
American history offers a valuable lesson here. Fol­
lowing the Civil War, Congress enacted legislation 
designed to protect African Americans’ right to vote, 
and federal authorities aggressively enforced these 
laws. These efforts led to substantial gains in Afri­
can-American voter registration and political partic­
ipation throughout the South. But those gains were 
quickly wiped out once Reconstruction ended. Deci­
sions of this Court invalidating or narrowly constru­
ing federal laws designed to protect African- 
American voting rights played a major role in this 
reversal. With no effective federal statutory protec­
tion for minority voting rights, states and local juris­
dictions implemented a wide variety of discriminato­
ry laws and practices that effectively nullified the 
Fifteenth Amendment’s guarantees for generations.

Recent court decisions show that there is a risk 
that similar retrenchment would occur in the covered 
jurisdictions if § 5 were not in place. Relying on § 5, 
federal courts have blocked enforcement of new laws 
in Texas, Florida, and South Carolina that had the 
potential to disproportionately prevent minority vot­
ers from casting ballots. These included a strict new 
voter identification law in Texas and new restrictions



4

on early voting in Florida. A court also blocked South 
Carolina’s new voter ID law from taking effect in the 
2012 election because of likely discriminatory impact 
on African-American voters. While the court allowed 
the law to be enforced in future elections, it did so in 
reliance on a finding that the State had adopted 
ameliorative provisions that would reduce discrimi­
natory impact in future elections, with two judge not­
ing that § 5 had played an instrumental role in per­
suading the State to adopt these provisions and con­
strue them broadly. A court also refused to preclear 
Texas’s new Congressional, State Senate, and State 
House redistricting plans, specifically concluding 
that both the Congressional plan and the Senate 
plan were enacted with a discriminatory intent. Thus 
§ 5 played a critical role in protecting minority voting 
rights in the most recent election cycle. If § 5 were 
not in place, covered jurisdictions would find it much 
easier to implement discriminatory voting practices, 
and there is a significant risk that the gains of the 
last five decades would be eroded, just as the gains of 
the Reconstruction era were lost once the statutory 
scheme to protect those rights was no longer in force.

2. Congress’s determinations that § 5 is still 
needed to preserve and continue the progress of the 
last four decades and that the existing coverage for­
mula remains appropriate are amply supported by 
the legislative record and are entitled to the highest 
degree of deference from this Court. Petitioner Shel­
by County challenges the conclusions that Congress 
drew from the record and urges the Court to reweigh 
the evidence and draw its own conclusions. But that 
is not the proper role of this Court. As this Court has 
held and the Court of Appeals properly recognized, 
“[t]he Constitution gives to Congress the role of



5

weighing conflicting evidence in the legislative pro­
cess.” Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180, 
199 (1997). The Court does not reweigh the evidence 
de novo, but instead looks simply to whether Con­
gress has drawn reasonable inferences based on sub­
stantial evidence. Here, Congress amassed a sub­
stantial legislative record and reasonably concluded 
from that evidence that the protections of § 5 are still 
necessary and that the existing coverage formula 
remains appropriate. Those findings are entitled to 
deference. The Court should reject Shelby County’s 
invitation to substitute its own judgment for the con­
sidered judgment of Congress.

3. To the extent that the coverage formula is 
overinclusive or underinclusive, Congress intended 
that adjustments would be made on a case-by-case 
basis through the bailout and bail-in mechanisms. 
Congress anticipated that jurisdictions with “clean” 
records would avail themselves of bailout, and in 
fact, the number of bailouts has increased dramati­
cally since 2006. Obtaining a bailout is not a difficult 
or expensive procedure, and since 1982, when the 
bailout procedure was liberalized, no application for 
a bailout has been rejected. There is every reason to 
expect that the number of bailouts will continue to 
climb, which will naturally reduce the reach of § 5 in 
the manner that Congress intended.

In sum, striking down the 2006 reauthorization 
and invalidating § 5 wholesale, as Shelby County 
now urges, could have far-reaching consequences for 
minority voters. Without the continued protection of 
§ 5, there is a significant risk of “backsliding” by cov­
ered jurisdictions and a likelihood that millions of 
minority voters will face new barriers to the exercise 
of their most fundamental political right. The Court



6

should not allow this to happen. It should respect the 
judgment of Congress as to the both the continued 
need for the protections of § 5 and the appropriate­
ness of the existing coverage formula.

ARGUMENT
I. There Is Real and Substantial Risk That 

the Progress Made in Combatting Voting 
Discrimination Since 1965 Will Be Eroded 
If § 5 Is Invalidated.

As this Court has observed, “a page of history is 
worth a volume of logic.” New York Trust Co. v. Eis­
ner, 256 U.S. 345, 349 (1921).3 With that adage in 
mind, it is instructive to consider the history of Con­
gress’s first efforts to protect minority voting rights 
in the post-Civil War period, the role this Court 
played by invalidating those laws, and the conse­
quences that ensued.

That history shows that even very substantial 
gains in minority political participation can be rolled 
back. This Court’s decisions in the 1870s to invali­
date federal voting rights legislation paved the way 
for Southern states to enact laws that effectively 
barred African Americans from exercising their right 
to vote for many generations. If this Court were to 
invalidate § 5, there is a very real and substantial 
risk that this history would repeat itself. The Court 
should not allow that to happen.

3 Cf. l George Santayana, The Life of Reason; or, the Phas­
es OF HUMAN PROGRESS 284 (1905) (“Those who cannot remem­
ber the past are condemned to repeat it.”).



7

A. History Shows That Gains In Minority 
Political Participation Can Be Reversed 
When Remedial Laws Are Invalidated.

As this Court noted in Northwest Austin Municipal 
Utility District Number One v. Holder, 557 U.S. 193 
(2009), the United States has made extraordinary 
progress in combatting voting discrimination since 
1965, improvements which are “due in significant 
part to the Voting Rights Act itself’ and which “stand 
as a monument to its success.” Id. at 202. These 
gains include dramatic improvements in minority 
voter registration and turnout, as well as the fact 
that minority candidates have been elected to office 
at “unprecedented levels.” Id.

But there were also extraordinary advances in mi­
nority voter registration and political participation in 
the South in the decade following the Civil War. 
These gains resulted from aggressive federal efforts 
to secure and protect African Americans’ right to 
vote. By 1868, more than 700,000 African Americans 
had been registered to vote under the supervision of 
federal troops.4 As a result, 75% to 95% of eligible 
African-American men were registered to vote in the 
South during the early years of Reconstruction.5

The Fifteenth Amendment was ratified in 1870. 
Shortly afterward, Congress enacted the Enforce­
ment Act of 1870, 16 Stat. 140, which prohibited dis­
crimination in voter registration and prescribed 
criminal penalties for obstructing voting rights. The

4 Bernard Grofman et al., Minority Representation and 
the Quest for Voting Equality 5 (1992).
5 Richard M. Valelly, The Two Reconstructions: The 
Struggle for Black Enfranchisement 33 (2004).



8

Act was amended in 1871 to permit federal courts to 
appoint election supervisors to oversee federal elec­
tions and voting registration. Act of Feb. 28, 1871, 
ch. 99, 16 Stat. 433.

The combination of large numbers of African- 
American voters and the adoption of new legal 
mechanisms to protect their rights had a remarkable 
impact on minority political participation. Substan­
tial numbers of African Americans were elected to 
political office at all levels of government in the early 
1870s. By the end of Reconstruction, 18 African 
Americans had served in Southern states in such 
statewide offices as lieutenant governor, treasurer, 
superintendent of education or secretary of state, 
and by 1875 there were eight African Americans 
serving in Congress, representing six different 
states.6 More than 600 African Americans also 
served in state legislatures—the large majority of 
them former slaves.7 African Americans made up 
nearly half of the lower-house delegates in Missis­
sippi and Louisiana and were a majority in South 
Carolina, which also had an African-American jus­
tice on its Supreme Court.8 In the words of Professor 
Eric Foner, a leading historian of the Reconstruction 
period, this represented “a stunning departure in 
American politics.”9 And “[a]n equally remarkable

6 Eric Foner, Reconstruction: America’s Unfinished Revo­
lution 1863-1877, at 353, 538 (1988).
7 Id. at 355.

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

9 FONER, supra, at 355.



9

transformation occurred at the local level, where the 
decisions of public officials directly affected daily life 
and the distribution of power.”10 According to Profes­
sor Foner, “[i]n virtually every county with a sizable 
black population, blacks served in at least some local 
office during Reconstruction.”11

But these gains proved short-lived. Reconstruction 
ended in 1877, following a compromise between 
Democrats and Republicans that resolved the dis­
puted presidential election of 1876. Southern juris­
dictions then began implementing a wide variety of 
measures to nullify African-American voting rights. 
Many of the early measures involved racial gerry­
mandering techniques designed to dilute African- 
American voting strength and prevent the election of 
African Americans’ preferred candidates.12 In the 
1890s, state efforts to disenfranchise African- 
American voters became more brazen. Beginning 
with Mississippi in 1890, several Southern states

i  old.

u Id. at 356.
12 See id. at 590:

“Throughout the South, . . . districts were gerryman­
dered to reduce Republican voting strength. Missis­
sippi Redeemers concentrated the bulk of the black 
population in a ‘shoestring’ Congressional district 
running the length of the Mississippi River, leaving 
five others with white majorities. Alabama parceled 
out portions of its black belt into six separate districts 
to dilute the black vote. Cities from Richmond to 
Montgomery redrew ward lines to ensure Democratic 
control. Wilmington’s black wards, containing four 
fifths of the city’s population, elected only one third of 
its aldermen.”



10

rewrote their constitutions and enacted laws adopt­
ing literacy tests, poll taxes, “good character” re­
quirements, white primaries and other similar 
measures intended to exclude African Americans 
from the electorate.13 As a result, the gains in minor­
ity political participation during Reconstruction were 
quickly erased.14

This Court’s decisions in United States v. Reese, 92 
U.S. 214 (1876), and United States v. Cruikshank, 92 
U.S. 542 (1876), played a significant role in this re­
versal. In Reese, voting inspectors in Kentucky were 
indicted under the Enforcement Act for refusing to 
accept the vote of an African-American citizen. See 
92 U.S. at 238-39 (Hunt, J., dissenting). The Court 
affirmed the dismissal of the indictment, holding 
that key provisions of the Enforcement Act were un­
constitutional. Id. at 218-20.

In Cruikshank, decided the same day as Reese, the 
Court reversed the convictions of three Louisiana 
men under the Enforcement Act for conspiracy to de­

13 See GROFMAN ET AL., supra, at 8-9.
14 For example, in the 1880 presidential election, African- 
American turnout in the South ranged from a low of 42% in 
Georgia to a high of 84% in Florida. VALELLY, supra, at 128. By 
the 1900 election, turnout had been reduced to the single digits 
in five southern states, and was well on its way to virtual ex­
tinction throughout the region. Id. By the mid-1890s, the num­
ber of African Americans in the Mississippi legislature had 
been reduced to zero (down from 64 in 1873), and just one Afri­
can-American legislator remained in South Carolina. KLARMAN, 
supra, at 32. Similarly, local office-holding by African Ameri­
cans all but disappeared. Id.; see also VALELLY, supra, at 52 
(number of African-American legislators in the South fell by 
nearly 80% between the end of Reconstruction and 1890).



11

ny African Americans a variety of civil rights, includ­
ing the right to vote. This case arose out of a disput­
ed election that escalated into an armed conflict—the 
notorious “Colfax Massacre” of 1873—in which 
whites seeking to expel African-American and Re­
publican officeholders stormed a courthouse in Grant 
Parish, Louisiana, killing more than 100 African 
Americans who had gathered to defend the court­
house.15 In reversing the convictions, the Court con­
cluded that many of the rights referred to in the in­
dictment—including the right of peaceable assembly, 
the right to bear arms, and the rights of life and per­
sonal liberty—were not granted or protected by the 
federal Constitution. 92 U.S. at 551-54. With respect 
to the convictions for hindering African Americans in 
the exercise of their voting rights, the Court conclud­
ed that the indictment had not alleged a racial mo­
tive: “We may suspect that race was the cause of the 
hostility; but it is not so averred.” Id. at 556.

Historians have long agreed that these decisions 
gutted the federal statutory scheme for the protec­
tion of African-American voting rights. In 1923, Su­
preme Court historian Charles Warren observed:

“The practical effect of these decisions was to 
leave the Federal statutes almost wholly ineffec­
tive to protect the negro, in view of the construc­
tion of the Amendments adopted by the Court,

15 See generally FONER, supra, at 437. For more detailed ac­
counts of the Colfax Massacre and its aftermath, see CHARLES
Lane, The Day Freedom Died: The Colfax Massacre, the 
Supreme Court, and the Betrayal of Reconstruction 
(2008); LeAnna Keith, The Colfax Massacre: The Untold 
Story of Black Power, White Terror, and the Death of Re­
construction (2008).



12

the lack of adequate legislation in the Southern 
States, and the extremely limited number of 
rights which the Court deemed inherent in a citi­
zen of the United States, as such, under the Con­
stitution.”16

Professor Foner describes Cruikshank as “devastat­
ing,” noting that it “rendered national prosecution of 
crimes committed against blacks virtually impossi­
ble, and gave a green light to acts of terror where lo­
cal officials either could not or would not enforce the 
law.”17 Professor William Gillette likewise notes that 
Reese “made future enforcement [of voting rights] 
vastly more difficult, and in some cases clearly im­
possible.”18 And another history notes that the two 
decisions “limited the likelihood of intervention to 
prevent systematic abuses,” and that “[i]n combina­
tion with the withdrawal of troops . . . this bar to 
oversight empowered mass intimidations and ma­
nipulations at the polls.”19 In short, the Court’s fail­
ure to protect African-American voting rights played 
a significant role in the retrenchment that followed 
the end of Reconstruction.

The advances in minority political participation in 
the United States over the last four decades are un­
doubtedly more solid than the gains that were made 
in the post-Civil War era. But the history of the post-

16 2 Charles Warren, The Supreme Court in United States 
History 604 (1922).

17 FONER, supra, at 530—31.

18 William Gillette, Retreat from Reconstruction 1869- 
1879, at 295 (1979).

19 KEITH, supra, at 158.



13

Reconstruction period serves as a warning that the 
clock of progress can be turned back if the political 
and judicial branches of government fail to exercise 
sufficient vigilance to protect minority voting rights. 
The comments of another prominent historian, Pro­
fessor C. Vann Woodward, at the hearings on the 
1982 reauthorization of the Voting Rights Act are 
pertinent in this regard. Asked why the history of 
Reconstruction is relevant, Professor Woodward re­
plied:

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

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

“My history teaches me that if it can happen 
once, it can happen again.”20

20 Extension of the Voting Rights Act: Hearings Before the Sub- 
comm. on Civil and Constitutional Rights of the H. Comm, on 
the Judiciary, 97th Cong. 2027 (1981).



14

B. Recent Court Decisions Show That With­
out the Protection of § 5 Many Covered 
Jurisdictions Would Adopt Practices 
That Abridge Minority Voting Rights.

Professor Woodward’s warning that history can re­
peat itself is as valid today as it was in 1982. Section 
5 continues to play a critical role both in encouraging 
states to safeguard the interests of minority voters 
and in preventing discriminatory laws from ever tak­
ing effect. If § 5 were not in place, there is a substan­
tial risk that many covered jurisdictions would im­
plement discriminatory practices that would erode 
the gains that minority voters have made since 1965.

Recent court decisions in preclearance cases show 
that covered jurisdictions continue to engage in both 
“first generation” type discriminatory tactics— 
imposing direct barriers on registration and the right 
to vote—and “second generation” tactics—limiting 
the ability of minority voters to elect their preferred 
candidates.21 In the former category, Texas enacted a 
new law in 2011 requiring voters to show photo iden­
tification in order to cast a ballot. While several 
states have enacted photo ID laws in recent years, 
and the Court has upheld the constitutionality of an 
Indiana photo ID law, Crawford u. Marion County 
Election Board, 553 U.S. 181 (2008), the Texas law

21 The term “second generation” is a misnomer. As the Court of 
Appeals noted, these tactics are “in fact decades-old forms of 
gamesmanship.” Pet. App. 28a. As noted above (supra n.12), 
these types of dilutive mechanisms were among the first dis­
criminatory practices to be adopted after Reconstruction. Such 
tactics are just as pernicious as direct barriers because they 
prevent minority voters from having an equal and fair oppor­
tunity to participate in the political process.



15

was extraordinarily onerous. The three-judge court 
reviewing the Texas statute noted that it was “far 
stricter” than either the Indiana law at issue in 
Crawford or a Georgia law that was precleared by 
the Justice Department. Texas v. Holder, No. 12-cv- 
128, 2012 U.S. Dist LEXIS 127119, at *47 (D.D.C. 
Aug. 30, 2012). First, while the Georgia and Indiana 
laws generally permitted voters to use expired IDs, 
the Texas law would have prohibited voters from us­
ing any ID that had expired more than 60 days pre­
viously. Id. at *47. Second, while the Texas law 
would have ostensibly allowed voters to obtain a free 
photo ID at a local office of the Texas Department of 
Public Safety (“DPS”), the burdens involved in ob­
taining a free ID would have been much heavier than 
in Indiana or Georgia. To obtain a photo ID, a voter 
would have been required to present one of a limited 
number of government issued documents, the cheap­
est of which (a certified birth certificate) cost $22— 
significantly more than the comparable cost in Indi­
ana. Id. at *47-48. Moreover, 81 of Texas’s 254 coun­
ties had no DPS office, and 34 additional counties 
had offices that were open two days a week or less. 
Id. at *15-16, *48-49. In some towns with large His­
panic or African-American populations, the nearest 
DPS office is 100 to 125 miles away. Id. at *81-82. 
And unlike the Indiana law, the Texas law did not 
enable indigent persons without valid photo ID to 
cast provisional ballots. Id. at *97.

Examining these features, the court concluded that 
Texas had “enacted a voter ID law that—at least to 
our knowledge—is the most stringent in the coun­
try.” Id. at *96. It held that the law would weigh 
heavily on Texas’s poorest residents, and that be­
cause the undisputed evidence showed that racial



16

minorities were disproportionately likely to live in 
poverty, the law would likely have a discriminatory 
effect. Id. at *43. The court explained:

“Based on the record evidence before us, it is vir­
tually certain that these burdens will dispropor­
tionately affect racial minorities. Simply put, 
many Hispanics and African Americans who vot­
ed in the last election will, because of the bur­
dens imposed by SB 14, likely be unable to vote 
in the next election. This is retrogression.” Id. at 
* 86 .

Because the court resolved the case based on the 
Texas law’s discriminatory effect, it did not reach the 
discriminatory purpose prong of § 5. Id. at *95. But it 
noted that the legislature had “[i]gnor[ed] warnings 
that [the bill], as written would disenfranchise mi­
norities” and tabled or defeated amendments that 
would have ameliorated these problems. Id. at 
*96-97.

Florida (which has five covered counties) provides 
another example of an effort to limit access to the 
ballot. In 2011, Florida enacted a law that would 
have decreased the number of early voting days 
(from 12 to 8) and offered election officials the discre­
tion to reduce the number of daily hours available for 
early voting (from 12 to 6). Florida v. United States, 
No. 11-1428, 2012 U.S. Dist LEXIS 115647, at *5, 
*24-28 (D.D.C. Aug. 16, 2012). A three-judge court 
denied Florida’s preclearance request, finding that 
“minority voters will be disproportionately affected 
by the changes in early voting procedures because 
they disproportionately use early in-person voting.” 
Id. at *6. The court further found that if early voting 
were limited to six hours per day, as permitted by



17

the new law, “it is likely that early voting would 
start after the workday starts and would end before 
the workday ends, making it even more inaccessible 
to many minority voters who have inflexible work 
schedules.” Id. at *91. It explained that “[t]his dra­
matic reduction in a form of voting disproportionate­
ly used by African-Americans would be analogous to 
. . . closing polling places in disproportionately Afri­
can-American precincts” and would impose a burden 
that would dissuade African Americans from voting 
Id. at *91-92.

In the Texas and Florida cases, § 5 was used to 
block changes that could have limited minority vot­
ers’ access to the ballot. But § 5 also plays an im­
portant role in shaping legislation so as to reduce 
discriminatory impact. For example, South Carolina, 
like Texas, enacted a photo ID law in 2011. South 
Carolina v. United States, No. 12-203, 2012 U.S. Dist 
LEXIS 146187, at *8-9 (D.D.C. Oct. 10, 2012). The 
South Carolina law, however, is less restrictive than 
the Texas law. Most notably, it contains a “reasona­
ble impediment” provision which allows voters with a 
non-photo voter registration card to vote simply by 
signing an affidavit stating the reason for not having 
obtained a photo ID. Id. at *11-12. During the course 
of the preclearance litigation, State officials provided 
authoritative interpretations that this provision 
would be interpreted expansively so that only the ve­
racity, not the reasonableness, of the voter’s stated 
reasons would be subject to challenge. Id. at *15-21.

Relying on these interpretations, the court found 
that the law was not discriminatory in purpose or 
effect and granted preclearance. Id. at *55. It also 
concluded, however, that without the reasonable im­
pediment provision the law might have a discrimina­



18

tory impact on African-American voters, who dispro­
portionately lack the required forms of photo ID. Id. 
at *59-60. Because the court concluded that it would 
not be possible to implement the law in the time re­
maining before the 2012 election, it blocked enforce­
ment of the law in 2012, explaining that “there is too 
much of a risk to African-American voters for us to 
roll the dice in such a fashion.” Id. at *60. It further 
noted that if State officials were to narrow their in­
terpretation of the law in the future, that change 
would require preclearance. Id. at *65-66.

Two judges noted in a concurring opinion that § 5 
played a critical role in persuading the legislature to 
adopt the reasonable impediment provision and en­
couraging state officials to construe it broadly:

“[0]ne cannot doubt the vital function that Sec­
tion 5 of the Voting Rights Act has played here. 
Without the review process under the Voting 
Rights Act, South Carolina’s voter photo ID law 
certainly would have been more restrictive. Sev­
eral legislators have commented that they were 
seeking to structure a law that could be pre­
cleared. . . . The key ameliorative provisions were 
added during that legislative process and were 
shaped by the need for pre-clearance. And the 
evolving interpretation of these key provisions of 
Act R54, particularly the reasonable impediment 
provision, subsequently presented to this Court 
were driven by South Carolina officials’ efforts to 
satisfy the requirements of the Voting Rights 
Act.” Id. at *70-71 (Bates, J., concurring).

Another Texas case provides an egregious illustra­
tion of dilutive tactics designed to prevent minority 
voters from electing their preferred candidates. In



19

Texas v. United States, No. 11-1303, 2012 U.S. Dist. 
LEXIS 121685 (D.D.C. Aug. 28, 2012), the court de­
clined to preclear Texas’s redistricting plans for Con­
gress, the State Senate, and the State House of Rep­
resentatives. The court did not rely only on § 5’s dis­
criminatory effects prong, but also expressly found 
that some of the plans were enacted with discrimina­
tory purpose.

The court held that the Congressional plan would 
have a retrogressive effect and that it was enacted 
with discriminatory purpose. Id. at *53, *76-77. It 
noted that “substantial surgery” had been conducted 
to remove the district offices of incumbent minority 
representatives from their new districts while no 
such surgery was performed on the districts of Anglo 
incumbents, that the “economic guts” of districts rep­
resented by minorities had also been removed, and 
that Texas had not offered a convincing explanation 
for these actions. Id. at *74-77. It also found that Af­
rican-American and Hispanic members had been ex­
cluded from the process of drafting the new maps 
and that that there were procedural and substantive 
departures from the normal decision-making process. 
Id. at *77-79. It further noted Texas’s “history of 
failures to comply with the VRA” in prior redistrict­
ing. Id. at *77.

With respect to the State Senate plan, the court 
concluded that the state had deliberately “cracked” 
an existing district by dividing politically cohesive 
and geographically concentrated African-American 
and Hispanic communities among three separate dis­
tricts—again with no credible explanation for such 
action. Id. at *84-94. Finally, the court found that 
the State House plan would abridge minority voting 
rights in at least four districts. Id. at *94. Although



20

the court did not reach the issue of discriminatory 
intent with respect to the House plan, it cited trou­
bling evidence that mapmakers had specifically 
sought to manipulate the Hispanic vote and to 
“crack” districts along racial lines to dilute minority 
voting power. Id. at *129-30.

These decisions demonstrate that notwithstanding 
the many years that have elapsed since the Voting 
Rights Act was first enacted, covered jurisdictions 
continue to engage in practices that have the effect— 
and in some cases the purpose—of denying minority 
voters access to the ballot and an equal chance to 
elect their preferred candidates. During the 2012 
election cycle, § 5 was instrumental in blocking dis­
criminatory voting changes in covered jurisdictions 
from taking effect and persuading state officials to 
adopt ameliorative measures to reduce discriminato­
ry impact. Without the safeguards provided by § 5, it 
is likely that these discriminatory changes (and po­
tentially others) would be implemented, and the pro­
gress made in the covered jurisdictions since 1965 
would begin to erode, just as it did in the post- 
Reconstruction era. As history shows, the clock of 
progress has been turned back before, and this Court 
should not let it happen again.
II. Congress’s Decision To Reauthorize § 5 and 

To Retain the Existing Coverage Formula 
Are Amply Supported by the Legislative 
Record and Are Entitled to Deference.

In reauthorizing § 5, Congress concluded that, de­
spite significant progress toward achieving political 
equality for minority voters in the covered jurisdic­
tions, “40 years has not been a sufficient amount of 
time to eliminate the vestiges of discrimination fol­



21

lowing nearly 100 years of disregard for the dictates 
of the 15th amendment and to ensure that the right 
of all citizens to vote is protected as guaranteed by 
the Constitution.” Pub. L. No. 109-246, § 2(b)(7), 120 
Stat. 577 (2006). It further found that, without con­
tinuation of § 5, minority voters “will be deprived of 
the opportunity to exercise their right to vote, or will 
have their votes diluted, undermining the significant 
gains made by minorities in the last 40 years.” Id. 
§ 2(b)(9).

Congress amassed a substantial legislative record 
to support these conclusions. Shelby County now 
asks the Court to reexamine that record and draw its 
own conclusions about whether voting discrimination 
still exists in the covered jurisdictions and whether 
the coverage formula remains reasonable. This ar­
gument fundamentally misapprehends the role of 
this Court in reviewing Congressional determina­
tions.

Turner Broadcasting System, Inc. v. FCC, 520 U.S. 
180 (1997) illustrates the level of deference that is 
appropriate in this case.22 In Turner, the Court af­
firmed the constitutionality of the “must-carry” pro­
visions of the Cable Television Consumer Protection 
and Competition Act against a First Amendment 
challenge. The Court explained:

“In reviewing the constitutionality of a statute, 
courts must accord substantial deference to the 
predictive judgments of Congress. Our sole obli­
gation is to assure that, in formulating its judg­
ments, Congress has drawn reasonable infer-

22 The Court of Appeals repeatedly cited Turner. See Pet. App. 
21a, 35a, 44a, 47a.



22

ences based on substantial evidence. . . .
[Substantiality is to be measured in this context 
by a standard more deferential than we accord to 
judgments of an administrative agency. We owe 
Congress’ findings deference in part because the 
institution is far better equipped than the judici­
ary to amass and evaluate the vast amounts of 
data bearing upon legislative questions. . . . This 
is not the sum of the matter, however. We owe 
Congress’ findings an additional measure of def­
erence out of respect for its authority to exercise 
the legislative power. Even in the realm of First 
Amendment questions where Congress must 
base its conclusions upon substantial evidence, 
deference must be accorded to its findings as to 
the harm to be avoided and to the remedial 
measures adopted for that end, lest we infringe 
on traditional legislative authority to make pre­
dictive judgments when enacting nationwide 
regulatory policy.” Id. at 195-96 (citations and 
internal quotation marks omitted).

The Court emphasized that “[t]he Constitution gives 
to Congress the role of weighing conflicting evidence 
in the legislative process,” id. at 199, and that the 
Court is not to “reweigh the evidence de novo, or to 
replace Congress’ factual predictions with [its] own.” 
Id. at 211 (citation and internal quotation marks 
omitted).23

23 See also City of Boerne v. Flores, 521 U.S. 507, 531 (1997) 
(“Judicial deference, in most cases, is based not on the state of 
the legislative record Congress compiles but ‘on due regard for 
the decision of the body constitutionally appointed to decide.’” 
(quoting Oregon v. Mitchell, 400 U.S. 112, 207 (1970) (opinion of 
Harlan, J.)).



23

This case, like Turner, involves a constitutional 
challenge to a statutory scheme that is based on spe­
cific Congressional findings. Congress undertook an 
extensive effort to collect evidence and solicit the 
views of potentially affected parties (including both 
supporters and critics of § 5). Before the bill was in­
troduced, the House held ten oversight hearings, at 
which it heard testimony from 39 witnesses, includ­
ing “State and local elected officials, scholars, attor­
neys, and other representatives from the voting and 
civil rights community,” as well as receiving written 
testimony from the Department of Justice, govern­
mental and non-governmental organizations and 
private citizens. H.R. Rep. No. 109-478, at 5 (2006). 
It then held two additional legislative hearings and 
received oral and written testimony from another 
seven witnesses. Id. The Senate held another ten 
hearings on the bill, and heard testimony from some 
40 witnesses. S. Rep. No. 109-295, at 2 (2006). The 
views that Shelby County expresses here—that § 5 is 
no longer needed and that the coverage formula 
should be changed—were heard and considered in 
the legislative process. But when Congress ultimate­
ly weighed the evidence, it did not agree. It found 
that voting discrimination continues in the covered 
jurisdictions and that the coverage formula remains 
appropriate. There is an ample legislative record to 
support these conclusions. Under Turner, the Court 
should defer to Congress’s judgment.

It is also significant that the decision to reauthor­
ize § 5 and retain the coverage formula received 
overwhelming bipartisan support in both houses of 
Congress—including broad support from the elected 
representatives of covered jurisdictions. The House 
of Representatives passed the 2006 Act by a vote of



24

390-33, while the Senate vote was unanimous, 98- 
0.24 The Act was then signed into law by President 
George W. Bush—himself the former governor of a 
covered state. Members of Congress are elected rep­
resentatives who are intimately familiar with voting 
patterns and electoral practices in the states and dis­
tricts they represent. As such, they are uniquely 
qualified to make decisions about the extent of ongo­
ing voting discrimination. Their judgments as to the 
continued need for § 5 and the proper coverage for­
mula should be accorded the highest deference.

A. Congress Reasonably Concluded on an 
Extensive Record That Discriminatory 
Voting Practices Still Continue in the 
Covered Jurisdictions.

While Shelby County argues that Congress did not 
build a record to support its conclusion that § 5 is 
still needed in the covered jurisdictions, Congress in 
fact made specific findings regarding the continued 
need for § 5 based on an extensive legislative record. 
Congress’s conclusion that voting discrimination con­
tinues to be a serious problem in covered jurisdic­
tions is reasonable and entitled to deference.

1. Congress found that “continued evidence of ra­
cially polarized voting in each of the jurisdictions 
covered by [§ 5] demonstrates that racial and lan­
guage minorities remain politically vulnerable, war­
ranting the continued protection of the Voting Rights 
Act of 1965.” Pub. L. No. 109-246, § 2(b)(3). The

24 152 Cong. REC. 14,303 (2006) (House vote); 152 CONG. REC. 
15,325 (2006) (Senate vote). Shelby County’s representative m 
the House, Rep. Bachus, voted for the reauthorization, as did 
both Alabama senators, Sen. Shelby and Sen. Sessions.



25

House Report cited and relied on numerous court de­
cisions finding legally significant racially polarized 
voting in several covered jurisdictions. H.R. R e p . N o . 
109-478, at 35. Shelby County does not dispute the 
continued presence of racially polarized voting. In­
stead, it argues (Pet. Br. at 31) that racially polar­
ized voting is not important because it is not gov­
ernment discrimination.

Congress, however, reasonably concluded that ra­
cially polarized voting was an important indication of 
the continued need for § 5. While racially polarized 
voting is not itself unlawful, the House Report ex­
plained that “[t]he potential for discrimination in 
environments characterized by racially polarized vot­
ing is great.” H.R. Rep. No. 109-478, at 35 (emphasis 
added). When voting is polarized along racial lines, it 
facilitates the use of discriminatory electoral practic­
es by the majority to limit the minority’s voting pow­
er and political influence. Absent racially polarized 
voting, there is much less likelihood of discrimina­
tion. Thus Congress reasonably placed great weight 
on evidence that voting in the covered jurisdictions 
continues to be polarized along racial lines.

2. Congress also found that “the hundreds of objec­
tions interposed [and] requests for more information 
submitted followed by voting changes withdrawn 
from consideration by jurisdictions covered by [§ 5]” 
evidenced continued discrimination. Pub. L. No. 109- 
246, § 2(b)(4)(A). The House Report noted that more 
objections were lodged between 1982 and 2004 than 
between 1965 and 1982 and that these objections 
“did not encompass minor inadvertent changes.” H.R. 
Rep. No. 109-478, at 21. It found that the voting 
changes devised by covered jurisdictions resembled 
the methods used in earlier years, including, “enact-



26

ing discriminatory redistricting plans; switching of­
fices from elected to appointed positions, relocating 
polling places; enacting discriminatory annexations 
and deannexations; setting numbered posts; and 
changing elections from single member districts to 
at-large voting and implementing majority vote re­
quirements.” Id. at 36. It cited numerous examples, 
including several from the post-2000 redistricting cy­
cle. Id. at 36-40. And it found that these proposed 
changes were “calculated decisions to keep minority 
voters from fully participating in the political pro­
cess,” showing that “attempts to discriminate persist 
and evolve, such that Section 5 is still needed to pro­
tect minority voters in the future.” Id. at 21.20 Shelby 
County largely ignores this evidence, instead arguing 
that the number of objections is small and the rate is 
declining. Pet. Br. at 29-30. But Congress reasonably 
looked at both the number of objections and the na­
ture of the practices that were objected to, which 
supported its conclusion that § 5 was still necessary.

3. Congress also found that in addition to formal 
objections, requests by the Department of Justice for 
more information (“MIRs”) had “affected more than 
800 additional voting changes that were submitted 
for preclearance, compelling covered jurisdictions to 
either alter the proposal or withdraw it from consid­
eration altogether.” H.R. Rep. No. 109-478, at 40—41. 
Shelby County argues that this evidence is not im­
portant because an MIR does not show a constitu­
tional violation. Pet. Br. at 30. But regardless of 25

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



27

whether particular changes would have violated the 
Constitution, Congress could reasonably conclude 
that the fact that jurisdictions were withdrawing or 
modifying changes in response to inquiries from the 
Department of Justice showed that § 5 was continu­
ing to play an important role in preventing jurisdic­
tions from trying to implement potentially discrimi­
natory changes in the first place.

4. Congress also looked at actions for judicial pre­
clearance and found that “the number of requests for 
declaratory judgments denied by the United States 
District Court for the District of Columbia” evidenced 
continuing discrimination. Pub. L. No. 109-246, 
§ 2(b)(4)(B). As the Court of Appeals noted, the evi­
dence before Congress showed that plaintiffs either 
withdrew their proposed changes or lost on the mer­
its in 25 declaratory judgment actions filed between 
1982 and 2004, compared to 17 between 1966 and 
1982. Shelby County ignores this evidence.

5. Congress also found that actions undertaken by 
the Department of Justice since 1982 to block en­
forcement of changes that had not been precleared 
evidenced continued discrimination. It noted that 
these enforcement actions had “prevented election 
practices, such as annexation, at-large voting, and 
the use of multi-member districts, from being enact­
ed to dilute minority voting strength.” Pub. L. No. 
109-246, § 2(b)(4)(A). The House Report cites numer­
ous examples. H.R. R e p . No. 109-478, at 41—44. Shel­
by County argues that § 5 enforcement actions are 
not important because they only show that changes 
were not properly submitted for preclearance and 
that some of these changes may have been nondis- 
criminatory. Pet. Br. at 30 n.6. But the examples cit­
ed by Congress involve practices that are potentially



28

highly discriminatory and could have had a severe 
impact on minority voting rights.

In sum, Congress had an ample factual record to 
support its conclusion that § 5 is still needed in the 
covered jurisdictions. Even if the evidence could be 
read to support a different conclusion, the role of this 
Court is not to re weigh the evidence de novo but 
simply to determine whether Congress has drawn 
reasonable inferences based on substantial evidence. 
Congress’s conclusion that § 5 is necessary was rea­
sonably based on a careful consideration of the rec­
ord, and the Court should defer to that judgment.

B. Congress’s Decision To Retain the Exist­
ing Coverage Formula Was Reasonable.

In Northwest Austin, this Court expressed concern 
that § 5 “differentiates between the States, despite 
our historic tradition that all states enjoy equal sov­
ereignty,” and questioned whether “the evil that § 5 
is meant to address” is still “concentrated in the ju­
risdictions singled out for preclearance.” Nw. Austin, 
557 U.S. at 203. Picking up on this theme, Shelby 
County argues that the coverage formula is no longer 
rational. But the legislative record shows that Con­
gress reasonably concluded that voting discrimina­
tion was still concentrated in the jurisdictions sub­
ject to § 5 and that the existing coverage formula 
therefore remained appropriate. That conclusion is 
also entitled to deference.

1. Congress heard evidence that discriminatory 
practices are more common in covered jurisdictions 
than in non-covered jurisdictions. The most signifi­
cant evidence is the study by Professor Ellen Katz



29

which was presented to the House.26 Professor Katz 
compared published § 2 decisions and concluded that 
of the 114 successful plaintiff outcomes, 64 originat­
ed in covered jurisdictions, even though these juris­
dictions account for less than a quarter of the U.S 
population. She further found that § 2 plaintiffs from 
covered jurisdictions were more likely to prevail on 
discrimination claims than plaintiffs from non- 
covered jurisdictions; while 30% of lawsuits from 
non-covered jurisdictions produced a favorable result 
for the plaintiffs, the comparable figure from covered 
jurisdictions was 40.5%.27 The House Report cited 
and relied on Professor Katz’s findings as evidence 
that discrimination was more severe in the ̂ covered 
jurisdictions than in non-covered jurisdictions. H.R. 
REP. No. 109-478, at 53.

Shelby County does not dispute the significance of 
the Katz study. Rather, it argues that Congress drew 
the wrong conclusions from the study, and offers an 
alternative analysis of the data. Pet. Br. at 47-48. 
But it is not the role of this Court to reweigh the evi­
dence that was before Congress. Congress examined 
the data and drew reasonable conclusions, and its 
judgment should not be second-guessed.

2. Congress did not reflexively reenact all provi­
sions of the Voting Rights Act. It carefully considered 
the need for each provision and made adjustments

26 To Examine the Impact and Effectiveness of the Voting Rights 
Act: Hearing Before the Subcomm. on the Constitution of the 
House Comm, on the Judiciary, 109th Cong. 964-1124 (2006).
27 Id. at 974.



30

where it considered them necessary.28 For example, 
Congress determined that the provisions relating to 
the appointment of federal examiners to monitor vot­
ing registration were outdated and repealed those 
provisions. Pub. L. No. 109-246, § 3(c); H.R. Rep. No. 
109-478 at 61-62.

Congress also gave careful consideration to wheth­
er changes should be made to the coverage formula. 
Rep. Norwood offered an amendment on the House 
floor that would have altered the formula so that 
coverage would be determined by voting and regis­
tration rates in the three most recent presidential 
elections.29 In response, the Chairman of the House 
Judiciary Committee, Rep. Sensenbrenner, stated 
that the amendment would “gut[] the Voting Rights 
Act” by “radically altering the coverage formula of 
the Voting Rights Act in a way that severs its con­
nection to jurisdictions with proven discriminatory 
histories.”30 He explained:

“The existing formula triggering coverage un­
der the Voting Rights Act is not at all outdated in 
any meaningful sense of the term, and States 
covered are not unfairly punished under the cov­
erage formula. Sixteen States are covered in 
whole or in part under the temporary provisions

28 See H.R. Rep. No. 109-478 at 61 (“[T]he Committee recogniz­
es that the electoral environment has evolved since 1965. . . . 
Recognizing these realities, the Committee amended and elimi­
nated certain provisions to ensure that the VRA remains a rele­
vant and effective remedy to the continued problems of discrim­
ination in the 21st century.”).
29 152 Cong. Rec. 14,273-74 (2006).

30 Id. at 14,274.



31

of the Voting Rights Act. The formula does not 
limit coverage to a particular region, but encom­
passes those States and jurisdictions where less 
than 50 percent of the citizens of voting age pop­
ulation registered or turned out to vote in 1964, 
1968 or 1972.

“But coverage is not, and I repeat ‘not’ predi­
cated on these statistics alone. States are not 
covered unless they applied discriminatory vot­
ing tests. And it was this aspect of the formula 
that brought these jurisdictions with the most 
serious histories of discrimination under Federal 
scrutiny.”31

Following debate, the Norwood amendment was 
soundly defeated, 318-96.32 Thus the legislative rec­
ord shows that Congress made a considered decision 
that the existing coverage formula remained appro­
priate.

3. Congress was aware of criticisms that the ex­
isting formula is both underinclusive and overinclu- 
sive. But this problem is inherent in any coverage 
formula that could possibly be devised (including the 
alternative proposed by Rep. Norwood). The ap­
proach taken by Congress was to continue to target 
the jurisdictions where discrimination has historical­
ly been most severe and where the evidence showed 
that there was still a strong potential for discrimina­
tion. To the extent that changes in coverage may be 
appropriate, Congress addressed this issue through 
the statute’s “bailout” and “bail-in” procedures. Bail-

31 Id. at 14,275.
32 Id. at 14,301.



32

in allows federal courts to subject particular jurisdic­
tions to preclearance upon finding a Fourteenth or 
Fifteenth Amendment violation. See 42 U.S.C. 
§ 1973a(c).33 Bailout, as amended by Congress in 
1982, allows individual covered jurisdictions to ob­
tain a declaratory judgment removing them from § 5 
coverage if they can demonstrate a “clean” record for 
a period of 10 years Id. § 1973b(a).

Congress placed particular emphasis on the avail­
ability of bailout. The House Report noted that 11 
counties had bailed out since the procedure was lib­
eralized in 1982, and commented:

“The Committee was encouraged that the bailout 
requirements have been utilized by some juris­
dictions, and believes that the success of those 
jurisdictions illustrates that: (1) covered status is 
neither permanent nor over-broad; and (2) cov­
ered status has been and continues to be within 
the control of the jurisdiction such that those ju­
risdictions that have a genuinely clean record 
and want to terminate coverage have the ability 
to do so.” H.R. Rep. No. 109-478 at 25.34

33 The Court of Appeals noted that Arkansas and New Mexico 
have been subjected to bail-in procedures, as have cities or 
counties in California, Florida, Nebraska, New Mexico, South 
Dakota and Tennessee. Pet. App. 61a-62a. See Jeffers v. Clin­
ton, 740 F. Supp. 585, 626-27 (E.D. Ark, 1990) (imposing partial 
preclearance on Arkansas); Travis Crum, Note, The Voting 
Rights Act’s Secret Weapon: Pocket Trigger Litigation and Dy­
namic Preclearance, 119 YALE L.J. 1992, 2010 & nn.100-08 
(2010) (collecting cases).
34 See also H.R. REP. No. 109-478 at 58 (“The Committee reiter­
ates that termination of covered status has been and continues 
to be within the reach of compliant covered jurisdictions and



33

In short, Congress expected that jurisdictions with a 
clean record could and would avail themselves of 
bailout.

4. While it is true that § 5 differentiates between 
states, our Constitutional system has built-in safe­
guards that protect the states against discrimination 
by the federal government—most notably, the partic­
ipation of state representatives in the Legislative 
Branch. In the Senate, where states are represented 
as distinct political entities and each state has an 
equal vote, the vote to approve the 2006 extension 
was unanimous, 98-0. While there was limited oppo­
sition in the House, the reauthorization nonetheless 
passed with overwhelming bipartisan support, 
390-33. There was not a single state, covered or un­
covered, in which a majority of the House delegation 
voted against reauthorization.
III. The Coverage of § 5 Will Likely Be Reduced 

Over Time Through the Application of the 
Bailout Mechanism.

Shelby County urges the Court to invalidate § 5 in 
its entirety. This would be a drastic action that 
would remove a vital tool for combatting discrimina­
tion from all covered jurisdictions, including those 
that have continued to engage in discriminatory 
practices or where there is a significant risk of back­
sliding. Rather than taking such a radical step, the 
Court should allow decisions about whether coverage 
should be maintained in individual jurisdictions to 
be made on a case-by-case basis through the bailout

hopes that more covered States and political subdivisions will 
take advantage of the process.”).



34

process, as Congress intended and as this Court did 
in Northwest Austin.

The bailout process is working just as Congress in­
tended. Prior to 1982 only five bailout applications 
were granted. From 1982 through 2006 an additional 
17 applications were granted. Since 2006 the rate of 
bailouts has increased substantially (no doubt due in 
part to the Court’s decision in Northwest Austin). A 
total of 25 bailout applications have been granted 
since 2006, including applications from covered ju­
risdictions in Alabama, California, Georgia, North 
Carolina, Texas and Virginia.35 These figures under­
state the impact of the bailout process because one 
application often covers many different political sub­
divisions. Of the 236 jurisdictions that have bailed 
out so far, 145 have occurred since 2006.36

Obtaining a bailout is not a difficult or expensive 
proposition for a jurisdiction that has maintained a 
clean record. The standards for bailout are well de­
fined, and Congress heard evidence that “[f]or the 
vast majority of jurisdictions, the process is relative­
ly straightforward and easy” and the criteria are 
“easily proven for jurisdictions that do not discrimi­
nate in their voting practices.”37 Since the procedure

35 In addition, an application by New Hampshire on behalf of 
itself and the 10 covered towns within the State is currently 
awaiting court approval. See New Hampshire v. Holder, No. 12- 
cv-1854 (D.D.C.).
36 The figures in this paragraph are derived from the infor­
mation on the Department of Justice website. See 
http://www.justice.gov/crt/about/vot/misc/sec_4.php (last visited 
Jan. 31, 2013).
37 Voting Rights Act: An Examination of the Scope and Criteria 
for Coverage Under the Special Provisions of the Act: Hearing

http://www.justice.gov/crt/about/vot/misc/sec_4.php


35

was liberalized in 1982, no bailout application has 
ever been denied.38 In short, there is every reason to 
expect that the number of successful bailout applica­
tions will continue to climb as the covered jurisdic­
tions continue to make progress toward eliminating 
voting discrimination. This process will naturally re­
duce the coverage of § 5 over time. The Court should 
allow this process to proceed in the manner that 
Congress intended.

CONCLUSION
The judgment of the Court of Appeals should be af­

firmed.
Respectfully submitted,

L isa  M. Bornstein  
The L eadership  Con fer ­

ence on  C ivil and  H u ­
m an  R ights 

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

M atthew  M. H offm an  
(Counsel of record) 

Stephen  J. Pollak  
J ohn  T ow nsend  R ich 
SlRISHA V. KALICHETI 
Ella  A. Capone  
G oodw in  Procter  LLP  
901 New York Ave., N.W, 
Washington, DC 20001 
(202) 346-4000

Counsel for Amici Curiae 
February 1, 2013

Before the Subcomm. on the Constitution of the H. Comm. On 
the Judiciary, 109th Cong. 90 (2005).
38 J. Gerald Hebert, An Assessment of the Bailout Provisions of 
The Voting Rights Act, in VOTING RIGHTS ACT REAUTHORIZA- 
tion of 2006: Perspectives on Democracy, Participation, 
AND POWER 257, 268 (Ana Henderson ed. 2007).



APPENDIX



APPENDIX A
The Leadership Conference 
on Civil and Human Rights 

Participating Member Organizations*

(Bold names denote Executive Committee 
member organizations)

A. Philip Randolph Institute 
AARP
Advancement Project
African Methodist Episcopal Church
Alaska Federation of Natives
Alliance for Retired Americans
Alpha Kappa Alpha Sorority, Inc.
Alpha Phi Alpha Fraternity, Inc.
American-Arab Anti-Discrimination Committee
American Association for Affirmative Action
American Association of People with Disabili­

ties
AAUW
American Baptist Churches, U.S.A.-National Minis­

tries
American Civil Liberties Union
American Council of the Blind 
American Ethical Union

* Some member organizations are filing separate amicus briefs.



2a

American Federation of Government Employees
American Federation of Labor-Congress of In­

dustrial Organizations
American Federation of State, County & Mu­

nicipal Employees, AFL-CIO
American Federation of Teachers, AFL-CIO
American Friends Service Committee 
American Islamic Congress (AIC)
American Jewish Committee
American Nurses Association
American Society for Public Administration
American Speech-Language-Hearing Association
Americans for Democratic Action
Amnesty International USA
Anti-Defamation League
Appleseed
Asian American Justice Center
Asian Pacific American Labor Alliance
Association for Education and Rehabilitation of the 

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

School of Law
Building & Construction Trades Department, AFL- 

CIO
Center for Community Change 
Center for Responsible Lending



3a

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

sion
Church Women United 
Coalition of Black Trade Unionists 
Common Cause
Communications Workers of America 
Community Action Partnership 
Community Transportation Association of America 
Compassion & Choices 
DC Vote
Delta Sigma Theta Sorority
DEMOS: A Network for Ideas & Action
Disability Rights Education and Defense Fund
Division of Homeland Ministries-Christian Church 

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



4a

Gay, Lesbian and Straight Education Network 
(GLSEN)

General Board of Church & Society of the United 
Methodist Church

Global Rights: Partners for Justice
GMP International Union
Hip Hop Caucus
Human Rights Campaign
Human Rights First
Immigration Equality
Improved Benevolent & Protective Order of Elks of 

the World
International Association of Machinists and Aero­

space Workers
International Association of Official Human Rights 

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

space and Agricultural Implement Workers of 
America (UAW)

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

Law



5a

Kappa Alpha Psi Fraternity
Labor Council for Latin American Advancement
Laborers’ International Union of North America
Lambda Legal
LatinoJustice PRLDEF
Lawyers’ Committee for Civil Rights Under 

Law
League of United Latin American Citizens 
League of Women Voters of the United States
Legal Aid Society — Employment Law Center 
Legal Momentum
Mashantucket Pequot Tribal Nation
Matthew Shepard Foundation
Mexican American Legal Defense and Educa­

tional Fund
Na’Amat USA
NAACP
NAACP Legal Defense and Educational Fund, 

Inc.
NALEO Educational Fund
National Alliance of Postal & Federal Employees
National Association for Equal Opportunity in High­

er Education
National Association of Colored Women’s Clubs, Inc. 
National Association of Community Health Centers 
National Association of Consumer Advocates (NACA)



6a

National Association of Human Rights Workers
National Association of Negro Business & Profes­

sional Women’s Clubs, Inc.
National Association of Neighborhoods
National Association of Social Workers
9 to 5 National Association of Working Women
National Bar Association
National Black Caucus of State Legislators
National Black Justice Coalition
National CAPACD -  National Coalition For Asian 

Pacific American Community Development
National Center for Transgender Equality
National Center on Time & Learning
National Coalition for the Homeless
National Coalition on Black Civic Participation
National Coalition to Abolish the Death Penalty
National Committee on Pay Equity
National Community Reinvestment Coalition
National Conference of Black Mayors, Inc.
National Congress for Puerto Rican Rights
National Congress of American Indians
National Consumer Law Center
National Council of Churches of Christ in the U.S.
National Council of Jewish Women
National Council of La Raza
National Council of Negro Women



7a

National Council on Independent Living 
National Disability Rights Network 
National Education Association 
National Employment Lawyers Association 
National Fair Housing Alliance 
National Farmers Union
National Federation of Filipino American Associa­

tions
National Gay & Lesbian Task Force
National Health Law Program
National Hispanic Media Coalition
National Immigration Forum
National Immigration Law Center
National Korean American Service and Education 

Consortium, Inc. (NAKASEC)
National Latina Institute for Reproductive Health
National Lawyers Guild
National Legal Aid & Defender Association
National Low Income Housing Coalition
National Organization for Women
National Partnership for Women & Families
National Senior Citizens Law Center
National Sorority of Phi Delta Kappa, Inc.
National Urban League
National Women’s Law Center
National Women’s Political Caucus



8a

Native American Rights Fund 
Newspaper Guild
OCA (formerly known as Organization of Chinese 

Americans)
Office of Communications of the United Church of 

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

CIO
SAALT (South Asian Americans Leading Together)



9a

Secular Coalition for America
Service Employees International Union
Sierra Club
Sigma Gamma Rho Sorority, Inc.
Sikh American Legal Defense and Education Fund 
Sikh Coalition
Southeast Asia Resource Action Center (SEARAC) 
Southern Christian Leadership Conference 
Southern Poverty Law Center 
Teach For America
The Association of Junior Leagues International, Inc 
The Association of University Centers on Disabilities 
The National Conference for Community and Justice 
The National PTA 
Trans Africa Forum 
Union for Reform Judaism 
Unitarian Universalist Association 
UNITE HERE!
United Brotherhood of Carpenters and Joiners of 

America
United Church of Christ-Justice and Witness Minis­

tries
United Farm Workers of America (UFW)
United Food and Commercial Workers International 

Union
United Mine Workers of America



10a

United States International Council on Disabilities
United States Students Association
United Steelworkers of America
United Synagogue of Conservative Judaism
Women of Reform Judaism
Workers Defense League
Workmen’s Circle
YMCA of the USA, National Board
YWCA USA
Zeta Phi Beta Sorority, Inc.



APPENDIX B 
Additional Signatories

In addition to The Leadership Conference and The 
Education Fund, the following organizations are sig­
natories to this Brief:

American-Arab Anti-Discrimination Committee
The American-Arab Anti-Discrimination Commit­

tee (“ADC”) is a civil rights organization committed 
to defending the rights of people of Arab descent and 
promoting their rich cultural heritage. ADC is the 
largest Arab-American grassroots civil rights organi­
zation in the United States. ADC is at the forefront 
in addressing discrimination and bias against Arab 
Americans. Through its Legal Department, ADC of­
fers counseling in cases of discrimination and defa­
mation, and provides assistance in selected litiga­
tion. ADC strongly urges the Court to find Section 5 
of the Voting Rights Act constitutional. It is apparent 
that Section 5 provides the necessary safeguards to 
prevent discrimination. States with high concentra­
tions of Arab Americans have encountered racial po­
larization, which in turn affects the community’s 
ability to vote and feelings of comfort when voting. 
ADC has been, and continues to be, a significant 
force in securing justice for members of this commu­
nity.

AARP
AARP is a nonpartisan, nonprofit organization 

with a membership. AARP strives to enable people 
age 50+ to secure independence, choice and control in 
ways beneficial and affordable to them and to society 
as a whole. In a variety of ways, including legal ad­



2b

vocacy as an amicus curiae, AARP supports the fun­
damental right to vote. To that end, AARP advocates 
for interpretation and enforcement of federal and 
state laws so as to encourage robust political en­
gagement, including voting by all persons eligible to 
do so. AARP strongly favors removal of unfair and 
unnecessary impediments to electoral participation, 
including measures that diminish the voting rights 
of minority citizens.

Anti-Defamation League
The Anti-Defamation League (“ADL”) was founded 

in 1913—at a time when anti-Semitism was rampant 
in the United States—to advance good will and mu­
tual understanding among Americans of all creeds 
and races, and to combat racial and religious preju­
dice in the United States. ADL is vitally interested in 
protecting the civil rights of all persons, whether 
they are members of the minority or the majority, 
and in ensuring that each individual receives equal 
treatment under the law regardless of race, ethnici­
ty, or religion. ADL recognizes the Voting Rights Act 
of 1965 as one of the most important and most effec­
tive pieces of civil rights legislation ever passed.

Advancement Project
Advancement Project (“AP”), is a nonpartisan, not 

for profit, national racial justice organization. In 
partnership with local communities, AP engages in 
legal advocacy to achieve universal opportunity and 
a just democracy. AP has a voter protection program 
that focuses on litigation, policy, coalition-building, 
and voter education and community empowerment 
strategies. In 2012, AP utilized Section 5 to protect



3b

against retrogression of voting rights for African 
American and Latino communities in Florida and 
Texas. The continued viability of Section 5 is essen­
tial to AP’s voter protection work in these and other 
covered jurisdictions. Thus, the issues in this case 
are directly related to AP’s work to protect the right 
to vote and ensure that elections are free, fair, and 
accessible.

American Federation of Labor and Congress of 
Industrial Organizations

The American Federation of Labor and Congress of 
Industrial Organizations (“AFL-CIO”) is a federation 
of 56 national and international labor organizations 
with a total membership of approximately 12.2 mil­
lion working men and women throughout the Nation, 
including in every jurisdiction that is covered by Sec­
tion 5 of the Voting Rights Act. The AFL-CIO repre­
sents the interests of working families, many of 
whom reside in jurisdictions covered by section 5 and 
are affected by changes to election laws. The AFL- 
CIO has long been active in legislative efforts and 
litigation to protect and advance the right to vote 
and to keep elections fair and free from discrimina­
tion. The AFL-CIO has a strong interest in the Court 
upholding and respecting Congress’s legislative deci­
sions in 2006 regarding the reauthorization of the 
Voting Rights Act.

American Jewish Committee
American Jewish Committee (“AJC”) is a national 

organization of Jewish Americans founded in 1906 
committed to, among other concerns, assuring equal 
protection of law and equal rights of citizenship for



4b

all Americans, including the right to vote. Long be­
fore enactment of the 1965 Voting Rights Act, AJC 
sought effective federal protection of the right to 
vote.

The Center for American Progress
The Center for American Progress is an independ­

ent nonpartisan educational institute dedicated to 
improving the lives of Americans through progres­
sive ideas and action. Building on the achievements 
of progressive pioneers such as Teddy Roosevelt and 
Martin Luther King, the Center’s work addresses 
21st-century challenges, including combating racial 
and ethnic discrimination. The issues of this case are 
directly related to the work of the Center for Ameri­
can Progress work in these areas.

Charles Hamilton Houston Institute for Racial 
Justice

Established in the fall of 2005 at Harvard Law 
School, the Charles Hamilton Houston Institute for 
Race and Justice (“CHHIRJ”) seeks to honor the ex­
traordinary contributions of one of the great lawyers 
of the twentieth century. Charles Hamilton Houston 
dedicated his life to using the law to address matters 
of racial discrimination. CHHIRJ is committed to 
continuing Mr. Houston’s legacy through research, 
instruction, and advocacy. CHHIRJ, through re­
search and litigation, seeks to address various issues 
of disparity and racial justice. The issue of ensuring 
the voting rights of minority group members protect­
ed under Section 5 of the Voting Rights Act is direct­
ly related to the Institute’s mission.



5b

Church Women United
Church Women United is a national volunteer 

Christian ecumenical women’s organization that 
works to prevent discrimination and promotes ac­
tions and programs that embody racial, ethnic, and 
religious diversity and inclusion. The issues in this 
case are directly related to Church Women United’s 
work in these areas.

Common Cause
Common Cause is a nonpartisan, nonprofit advoca­

cy organization founded in 1970 as a vehicle for citi­
zens to make their voices heard in the political pro­
cess and to hold their elected leaders accountable to 
the public interest. Today, Common Cause is one of 
the largest nonprofit organizations working for ac­
countability and reform in America. With over
400,000 members and supporters, Common Cause 
advocates for honest and open government. As part 
of its core mission, Common Cause works at the state 
and federal levels to defend the bedrock freedom of 
our democracy: casting a vote and having it counted, 
free from discrimination, suppressive tactics and in­
timidation. Common Cause is a leading partner or­
ganization of the national nonpartisan “Election Pro­
tection” coalition, which provides nonpartisan infor­
mation to voters about the election process. Common 
Cause has a long history of supporting the Voting 
Rights Act, including its renewal in 2006 and 1982. 
Common Cause’s former chairman emeritus, the late 
Archibald Cox, defended the constitutionality of the 
Voting Rights Act before this Court in 1966.



6b

Demos
Demos is a national public policy center working 

for an America where we all have an equal say in our 
democracy and an equal chance in our economy. Re­
moving barriers to political participation and ensur­
ing full representation of America’s diverse citizenry 
are central to Demos’ mission. Demos actively sup­
ported Congress’ 2006 reauthorization of the protec­
tions of Section 5 of the Voting Rights Act and be­
lieves those protections remain indispensable to the 
goal of full and equal access to political participation.

The Fair Elections Legal Network
The Fair Elections Legal Network (“FELN”) is a 

national, nonpartisan advocacy organization whose 
overall mission is to remove barriers to registration 
and voting for traditionally underrepresented con­
stituencies and protect their ability to exercise the 
right to vote. The issues of this case are directly re­
lated to FELN's work in these areas.

The Hip Hop Caucus
The Hip Hop Caucus is a national membership or­

ganization working to combat discrimination and 
promote inclusion, particularly on behalf of urban 
and hip hop communities. The issues of this case are 
directly related to Hip Hop Caucus' work in these ar­
eas; voter suppression laws were the main target of 
its Respect My Vote! Campaign in which the Caucus 
aimed to educate urban voters (mostly 18-40) so as to 
help them exercise their right to vote in spite of sup­
pression efforts. The Hip Hop Caucus uses its high 
profile platform of hip hop connections and networks 
to bring attention to issues that affect urban com­



7b

munities, especially where there are injustices. It is 
honored to join forces with other leading civil rights 
organizations in a concerted effort to address issues 
surrounding the voting rights of the underrepresent­
ed, namely African Americans.

The Lawyers’ Committee for Civil Rights-San 
Francisco Bay Area

The Lawyers’ Committee for Civil Rights of the 
San Francisco Bay Area (“LCCR-SF”) was founded 
after the assassination of Dr. Martin Luther King, 
Jr. in 1968 by leading members of the San Francisco 
Bar. LCCR-SF is a civil rights and legal services or­
ganization that advances, protects and promotes the 
rights of communities of color and immigrants and 
refugees, with a specific focus on low-income com­
munities and a long-standing commitment to African 
Americans. Its core programs remain focused on ad­
dressing structural racism and ensuring that every­
one has equal access to justice. LCCR-SF continues 
to expand on its legacy as a leader in the develop­
ment, advocacy, and advancement of voting rights 
protections, both state and federal, through ongoing 
contributions to scholarly, litigation and community 
outreach and education efforts. The issues in this 
case are directly related to LCCR-SF’s work in these 
areas.

The League of Women Voters
The League of Women Voters of the United States 

is a nonpartisan, community-based organization that 
promotes political responsibility by encouraging 
Americans to participate actively and knowledgeably 
in government and the electoral process. Founded in



8b

1920 as an outgrowth of the struggle to win voting 
rights for women, the League now has more than
140.000 members and supporters, and is organized 
in approximately 800 communities and in every 
state. For more than 90 years, the League has 
worked to protect every American citizen’s right to 
vote. The League has been a leader in seeking to re­
move the unnecessary barriers that too many Ameri­
cans face in registering to vote and casting a ballot, 
and the League continues to reach out to increase 
political participation among women, youth, and tra­
ditionally underrepresented communities, including 
racial and ethnic minorities and new citizens. The 
League has long supported the Voting Rights Act as 
a fundamental guarantee of the rights of American 
citizenship.

National Association for Equal Opportunity in 
Higher Education

The National Association for Equal Opportunity in 
Higher Education (“NAFEO”), 209 3rd Street, S.E., 
Washington, D.C., was founded in 1969 as the non­
profit, voluntary, independent association of the 105 
historically black colleges and universities 
(“HBCUs”) and other equal educational opportunity 
institutions in 25 states, the District of Columbia, 
and Virgin Islands. NAFEO institutions today in­
clude 92 Predominantly Black Institutions (“PBIs”). 
HBCUs and PBIs enroll 500,000 students, have
52.000 faculty and 5 million alumni, most of whose 
opportunities and successes are as the direct result 
of the Voting Rights Act. NAFEO was organized to 
articulate the need for a higher education system 
where race, income, and previous education are not 
the determinants of either the quality or quantity of



9b

higher education, and to tear down barriers to the 
full and unfettered participation of African Ameri­
cans and other Americans who were historically dis­
enfranchised in the educational, economic and civic 
life of this nation. NAFEO is not only committed to 
these goals, but its members are committed in terms 
of their resources, human and financial, to achieving 
these goals. NAFEO views the full and fair enforce­
ment under the Voting Rights Act as well as its ex­
tension and expansion as essential to the realization 
of these goals.

The National Association of Social Workers
The National Association of Social Workers 

(“NASW”) is the largest professional membership or­
ganization of social workers in the world with nearly
145,000 social workers and 56 chapters. The NASW, 
Alabama Chapter has 1,148 members. With the pur­
pose of developing and disseminating high standards 
of practice while strengthening and unifying the so­
cial work profession as a whole, NASW promulgates 
professional standards and criteria, conducts re­
search, publishes studies of interest to the profes­
sion, provides continuing education and enforces the 
NASW Code of Ethics. The National Association of 
Social Workers recognizes that “those who are young, 
not white, poor and less educated are disproportion­
ately unlikely to vote . . . [and] that increasing voter 
participation for these groups . . .  is important as 
those elected will make decisions on policies that af­
fect [the] lives of society’s most vulnerable popula­
tions” (NASW, Voter Participation in SOCIAL 
WORK SPEAKS 346, 348 (9th ed., 2012; approved by 
the NASW Delegate Assembly in August 2011). 
NASW supports full implementation and enforce­



10b

ment of federal voting rights laws, including the Vot­
ing Rights Act of 1965, as amended in 2006. SOCIAL 
WORK SPEAKS, supra, at 349-350.

National Black Law Students Association
The National Black Law Students Association 

(“NBLSA”) is a membership organization formed in 
1968 to promote the educational, professional, politi­
cal, and social objectives of Black law students. To­
day, NBLSA is the largest student-run organization 
in the United States, with nearly 6,000 members, 
over 200 chapters in our nation‘s law schools, a grow­
ing pre-law division, and six international chapters 
or affiliates. NBLSA has an interest in this case be­
cause one of the purposes of NBLSA is to utilize the 
collective resources of the member chapters to influ­
ence the legal community by bringing about mean­
ingful legal and political change that addresses the 
needs and concerns of the Black community. In re­
newing the Voting Rights Act, Congress gathered ex­
tensive evidence of a continuing need for prophylac­
tic legislation that ensures that the right to vote is 
not abridged on account of race. Without section 5, 
there is a risk that much of the political and social 
progress made since the passage of the Voting Rights 
Act would be lost.

National Council of Jewish Women
The National Council of Jewish Women (“NCJW”) 

is a grassroots organization of 90,000 volunteers and 
advocates who turn progressive ideals into action. 
Inspired by Jewish values, NCJW strives for social 
justice by improving the quality of life for women, 
children, and families and by safeguarding individu-



lib

al rights and freedoms. NCJW's Resolutions state 
that NCJW resolves to work for "Election laws, poli­
cies, and practices that ensure easy and equitable 
access to the electoral process and that every vote 
counts and can be verified.” In addition its principles 
state that “A democratic society and its people must 
value diversity and promote mutual understanding 
and respect for all” and “discrimination on the basis 
of race, gender, national origin, ethnicity, religion, 
age, disability, marital status, sexual orientation, or 
gender identity must be eliminated.” Consistent with 
its Principles and Resolutions, NCJW joins this brief.

National Education Association
The National Education Association (“NEA”) is a 

nationwide employee organization with more than 
three million members, the vast majority of whom 
are employed by public school districts, colleges, and 
universities. NEA is strongly committed to equal 
voter access and enfranchisement. To that end, NEA 
vigorously supports the Voting Rights Act, including 
its 2006 reauthorization.

National Urban League
The National Urban League, founded in 1910, is an 

historic national civil rights organization dedicated 
to economic empowerment, combating discrimina­
tion, and promoting inclusion in order to elevate the 
standard of living in significantly underserved urban 
communities. The organization and its 98 local affili­
ates work through program development, public poli­
cy, research, advocacy, civic engagement, and pro­
vide direct services—including education, employ­
ment training and placement, health services, and



12b

housing—that improve the lives of over 2.6 million 
people. The National Urban League has historically 
fought for and supported the Voting Rights Act of 
1965, including the Congressional decision in 2006 to 
extend § 5 of the Voting Rights Act for 25 years. Giv­
en its history and direct work in local communities, 
the National Urban League finds that the single is­
sue that arguably stands to have the greatest impact 
on the future of Black America is the right to vote 
and have that vote counted. Indeed, more than half a 
century after the Voting Rights Act of 1965 was 
passed, protecting the Constitutional right to vote 
from poll taxes, literacy tests or other barriers, we 
face today a nationwide strategic campaign to sup­
press the vote of African Americans. As a 103-year 
old civil rights and human services organization, the 
National Urban League remains committed to this 
fight. Protecting each individual’s fundamental right 
to vote, and the implications of the power of the vote, 
is inextricably linked to every individual’s economic 
and social wellbeing and essential to preserving the 
very functioning of our democracy. The issues of this 
case are therefore especially and directly related to 
the work of the National Urban League.

Project Vote
Project Vote, Inc. is a national nonpartisan, non­

profit 501(c)(3) based in Washington, DC that pro­
motes voting in historically underrepresented com­
munities. Through its research, advocacy, and direct 
legal services, Project Vote works to ensure that the­
se constituencies are able to fully participate in 
American civic life by registering and voting. Since 
its founding, Project Vote has assisted millions of 
low-income and minority citizens nationwide with



13b

voter registration, trained hundreds of low-income 
and minority organizers, and provided nonpartisan 
voter education on issues of voting rights and elec­
tion administration.

Public Advocates, Inc.
Public Advocates Inc. is a California-based civil 

rights law firm and advocacy organization that chal­
lenges the systemic causes of poverty and racial dis­
crimination by strengthening community voices in 
public policy and achieving tangible legal victories. 
Public Advocates spurs change through collaboration 
with grassroots groups representing low-income 
communities, people of color and immigrants, com­
bined with strategic policy reform, media advocacy 
and litigation. Since its founding in 1971, Public Ad­
vocates has engaged in a wide range of cutting edge 
civil rights issues from school finance, urban devel­
opment, transportation policy, and climate justice, to 
language access, employment discrimination, and 
health services disparities. The issues of this case 
are directly related to Public Advocates’ civil rights 
mission and work.

Service Employees International Union
Service Employees International Union (“SEIU”) is 

one of the largest unions in North America. It repre­
sents over 2.1 million workers in service industries 
throughout the United States and Canada. Directly 
and through its affiliated local unions, SEIU activity 
participates in federal elections and has historically 
promoted legislation designed to assure full partici­
pation in the political process to citizens without re­
gard to race, gender, sexual orientation or other clas­



14b

sifications that should have no bearing on such par­
ticipation. Because SEIU has many members who 
reside in jurisdictions currently subject to section 5 
of the Voting Rights Act who wish to participate in a 
fair and open electoral process, SEIU has a substan­
tial interest in the outcome of this litigation.

Southern Poverty Law Center
The Southern Poverty Law Center, founded in 

1971 and based in Montgomery, Alabama, has liti­
gated numerous civil rights cases on behalf of minor­
ities, women, prisoners, and other victims of discrim­
ination. The Center also founded and operates 
Teaching Tolerance, a national program designed to 
reduce prejudice, improve intergroup relations and 
support equitable school experiences for our nation’s 
children. Although the Center’s legal work is concen­
trated in the South, its attorneys appear in courts 
throughout the country to ensure that all people re­
ceive equal and just treatment under federal and 
state law. The issues of this case are directly related 
to the Southern Poverty Law Center’s purpose and 
mission.

Union for Reform Judaism
Central Conference of American Rabbis
Women of Reform Judaism

The Union for Reform Judaism has 900 congrega­
tions across North America, and these congregations 
include 1.5 million Reform Jews. The membership of 
the Central Conference of American Rabbis includes 
more than 2000 Reform rabbis. The Women of Re­
form Judaism represents more than 65,000 women 
in nearly 500 women’s groups in North America and



15b

around the world. Discrimination has no place in our 
society, including at the ballot box. Voting is the 
foundation of American democracy and the most im­
portant tool Americans have to influence our gov­
ernment’s policies. We must not allow our nation's 
commitment to voting rights to be diminished.





G O O D W I N  I P R O C T E R Matthew M. Hoffman 
202.346.4116 
mhoffman® 
goodwinprocter.com

Goodwin Procter llp 
Counselors at Law 
901 New York Avenue NW 
Washington, DC 20001
T: 202.346.4000 
F: 202.346.4444

February 1,2013

The Honorable William K. Suter 
Clerk
The Supreme Court of the United States 
1 First Street, N.E.
Washington, DC 20543

Re: Shelby County, Alabama v. Eric H. Holder. Jr., Attorney General of the United States
of America, No. 12-96

Dear Mr. Suter:

Enclosed are forty (40) copies of the Brief of The Leadership Conference on Civil and Human 
Rights and The Leadership Conference Education Fund et al. As Amici Curiae in Support of 
Respondents in this matter.

Also enclosed are (1) a Certificate of Service confirming service of copies of the brief upon 
counsel for all parties and of electronic copies of the brief upon counsel for all parties and upon 
the Clerk’s Office and (2) a word count certificate.

We understand that letters to the Clerk from all parties consenting to the filing of any amicus 
briefs are already on file with the Court.

1 ̂  V

Matthew M. Hoffman

Enclosures

Cc: Counsel for the parties (w/ enclosures)



No. 12-96

IN THE
SUPREME COURT OF THE UNITED STATES

Sh elby  Co u n ty , A la b a m a , Petitioner, 
v.

E ric  H. H o ld e r , J r ., A tto rn ey  G en er a l  of the  U nited  States  of
AMERICA, ETAL., Respondents.

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

District of Columbia Circuit

CERTIFICATE OF SERVICE

I am a member of the Bar of this Court, and I hereby certify pursuant to

Supreme Court Rules 29.3, 29.5, and 37.5 that I have, this 1st day of February,

2013, served three copies of the Brief of The Leadership Conference on Civil and

Human Rights and The Leadership Conference Educational Fund et al. As Amici

Curiae in Support of Respondents upon each party separately represented in this

proceeding by causing them to be deposited with the United States Postal Service,

with first-class postage prepaid, addressed to counsel of record at the addresses

listed below:

Bert W. Rein 
Wiley Rein LLP 
1776 K Street, N.W.
Washington, DC 20006 
brein@wilevrein.com 
(202) 719-7000

Counsel of record for Petitioner

mailto:brein@wilevrein.com


Debo P. Adegbile
NAACP Legal Defense & Educational Fund, Inc.
99 Hudson Street, 16th Floor 
New York, NY 10013 
dadegbile@naacnldf.org 
(212) 965-2249

Counsel of record for Respondent 

Jon M. Greenbaum
Lawyers’ Committee for Civil Rights Under Law 
1401 New York Avenue, N.W., Suite 400 
Washington, DC 20005 
igreenbaum@lawverscommittee.org 
(202) 662-8315

Counsel of record for Respondent 

Laughlin McDonald
American Civil Liberties Union Foundation
230 Peachtree Street NW
Atlanta, GA 30303-1504
lmcdonald@aclu.org
(404) 523-2721

Counsel of record for Respondent

Donald B. Verrilli Jr.
Solicitor General
United States Department of Justice 
950 Pennsylvania Avenue, N.W.
Washington, DC 20530 
SupremeCtBriefs@USDOJ.gov 
(202) 514-2217

Counsel of record for the Federal Respondent 

In addition, pursuant to Supreme Court Rule 37.3(c), an electronic version 

was transmitted this day to the Clerk of Court and to counsel of record for all 

parties.

2

mailto:dadegbile@naacnldf.org
mailto:igreenbaum@lawverscommittee.org
mailto:lmcdonald@aclu.org
mailto:SupremeCtBriefs@USDOJ.gov


I further certify that all persons required to be served have been served

Matthew M. Hoffman 
GOODWIN PROCTER LLP 
901 New York Ave., NW 
Washington, DC 20001 
(202) 346-4000

Counsel far Amici Curiae

LIBW/l 855160.1

3



No. 12-96

IN THE
SUPREME COURT OF THE UNITED STATES

Sh e lby  Co u n ty , A l a b a m a , Petitioner, 
v.

E ric H. H o ld e r , J r ., A tto rn ey  G e n er a l  of th e  U nited  States  of 
A m e r ic a , ETAL., Respondents.

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

District of Columbia Circuit

RULE 33.1(h) CERTIFICATE OF COMPLIANCE

I am a member of the Bar of this Court, and, as required by Supreme Court 

Rule 33.1(h), I certify this 1st day of February, 2013, that the Brief of The 

Leadership Conference on Civil and Human Rights and the Leadership Conference 

Education Fund et al. As Amici Curiae in Support of Respondents in this matter 

contains 8,816 words, excluding the parts of the document that are exempted by 

Supreme Court Rule 33.1(d).

901 New York Ave., N.W. 
Washington, DC 20001 
(202) 346-4000

Counsel for Amici Curiae