Northwest Austin Municipal Utility Distr. One v. Holder Brief of Julius Chambers et al. as Amici Curiae

    No. 08-322

MW)*
Supreme Court of tfje ®mteb States*

---------------- ♦-----------------

NORTHWEST AUSTIN MUNICIPAL 
UTILITY DISTRICT NUMBER ONE,

Appellant,
v.

ERIC H. HOLDER JR., Attorney General 
of the United States of America, et al.,

Appellees.

---------------- ♦-----------------

On Appeal From The 
United States District Court For 

The District Of Columbia

BRIEF OF JULIUS CHAMBERS,
ARMAND DERFNER, JAMES U. BLACKSHER, 

ANITA EARLS, ROBERT McDUFF, EDWARD STILL, 
ELLIS TURNAGE, CYNTHIA McCOTTRY SMITH, 

BERNARD R. FIELDING, MARJORIE 
AMOS-FRAZIER, LEE H. MOULTRIE, SOUTHERN 

ECHO, AND DEMOCRACY NORTH CAROLINA 
AS AMICI CURIAE IN SUPPORT OF APPELLEES

---------------- ♦----------------

William D. Kissinger 
Counsel of Record 

Sujal J. Shah 
Erin Shannon-Conroy 

Perry M. Grossman 
Sarah L. Bishop 

Bingham McCutchen LLP 
Three Embarcadero Center 

San Francisco, CA 94111-4067 
(415) 393-2000 

Counsel for Amici Curiae

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



1

TABLE OF AUTHORITIES..................      iii
INTEREST OF AMICI CURIAE.............................  1
SUMMARY OF ARGUMENT.................................  3
ARGUMENT...............................................................  5

I. Am id ’s Experience Confirms That Section 
2 Cannot Replace The Prophylactic Func­
tion Of Section 5; The Two Enforcement 
Mechanisms Are Complementary...............  5
A. As Designed By Congress, Section 2

And Section 5 Are Mutually Reinforc­
ing ..............................................................  6

B. Case Studies............................................. 8
1. Charleston County.............................  9
2. The Dillard Cases ..............................  12
3. Beaufort County.................................. 15
4. Parish o f Tangipahoa........................ 17

II. Few Plaintiffs Have The Capacity To Bring 
Section 2 Cases Because They Are Com­
plex And Expensive, And Few Private 
Practitioners Are Willing To Take Them .... 18
A. The Complex And Expert-Intensive

Nature Of Section 2 Lawsuits Mean 
They Are Costly For Parties And The 
Courts.......................................................  19

B. The Costs Of Section 2 Litigation Are
A Serious Bar To Relief From Viola­
tions...........................................   22

TABLE OF CONTENTS
Page



11

Page
TABLE OF CONTENTS -  Continued

C. The Lack Of Available Attorneys To
Litigate Cases Is A Barrier To Addi­
tional Section 2 Litigation................   25

D. Due To Their Access To Taxpayer
Funds, Jurisdictions Violating Section 2 
Do Not Face Similar Burdens, And In 
Fact Have An Incentive To Stall.......... 29

III. Appellant Ignores The Deterrent Effect Of
Section 5 ..........................................................  31

CONCLUSION...........................................................  37



I l l

Cases

Allen v. State Board o f Elections, 393 U.S. 544
(1969)...............................................................................2

Arbor Hills Concerned Citizens Neighborhood 
Ass’n v. County o f Albany, 522 F.3d 182 (2d 
Cir. 2007)......................................................................24

Bone Shirt v. Hazeltine, 524 F.3d 863 (8th Cir.
2008)............................................................................. 22

Branch v. Smith, 538 U.S. 254 (2003).......................... 2
Buckhannon Bd. & Care Home, Inc. v. W. Va.

Dep’t o f Health & Human Res., 532 U.S. 598 
(2001).................................................   25

City o f Boerne v. Flores, 521 U.S. 507 (1997)..............19
City o f Mobile v. Bolden, 446 U.S. 55 (1980) 1, 2, 23
Clark v. Roemer, 500 U.S. 646 (1991)............................2
Cottier v. City o f Martin, No. CIV 02-5021, 2008 

WL 2696917 (D.S.D. March 25, 2008)..............22, 26
Dillard v. Baldwin County Bd. o f Educ., 686 

F. Supp. 1459 (M.D. Ala. 1988).............12, 13, 15, 29
Dillard v. Chilton County Bd. o f Educ., 699 

F. Supp. 870 (M.D. Ala. 1988)...........8, 12, 15, 16, 29
Dillard v. Chilton County Comm’n, 447 F. Supp. 2d 

1273 (M.D. Ala. 2006).................... 8, 12, 13, 15, 16, 29
Dillard v. Chilton County Comm’n, 452 F. Supp. 2d 

1193 (M.D. Ala. 2006)

TABLE OF AUTHORITIES
Page

13



IV

Dillard v. Crenshaw County, 640 F. Supp. 1347 
(M.D. Ala. 1986)........................................8, 12, 15, 29

Gadson v. Howard, Civ. No. 2:94cv01164 (D.S.C.
Aug. 15, 1995)............................................................. 10

Garza v. County o f Los Angeles, 918 F.2d 763 
(9th Cir. 1990)............................................................17, 18

Graves v. Barnes, 700 F.2d 220 (5th Cir. 1983).........22
Harper v. City o f Chicago Heights, 2002 WL 

31010819 (N.D. 111. Sept. 6, 2002)........................... 22
Jackson v. Edgefield County Sch. Dist., 650 

F. Supp. 1176 (D.S.C. 1986)............................... 30, 31
Major v. Treen, 700 F. Supp. 1422 (E.D. La.

1988).........................     21, 22
McCain v. Lyhrand, 465 U.S. 236 (1984).................... 30, 31
Moore v. Beaufort County, 936 F.2d 159 (4th 

Cir. 1991)...........................................................8, 15, 16
NAACP v. Charleston County, Civ. No.

2:89cv00293-l (D.S.C. 1989)........................10, 16, 21
NAACP v. Hampton County Election Commis­

sion, 470 U.S. 166(1985).............................................2
Riley v. Kennedy, 128 S. Ct. 1970 (2008)...... .............. 2
Shaw v. Hunt, 517 U.S. 899 (1996)............................... 2
Sinkfield v. Kelley, 531 U.S. 28 (2000)............... .......... 1
South Carolina v. Katzenbach, 383 U.S. 301 

(1966).............................................................................6, 19

TABLE OF AUTHORITIES -  Continued
Page



V

Tangipahoa Citizens for Better Government v.
Parish o f Tangipahoa, No. Civ.A.03-2710, 2004 
WL 1638106 (E.D. La. July 19, 2004)................ 9, 17

Thornburg v. Gingles, 478 U.S. 30 (1986)............. 2, 24
United States v. Charleston County, 316 

F. Supp. 2d 268 (D.S.C. 2003).......................... passim

W. Va. Univ. Hosp. v. Casey, 499 U.S. 83 (1991)....... 24

Constitutional Provisions, Statutes, and Regulations

U.S. Const, amend. XV ........................................... 15, 37
Voting Rights Act of 1965, 42 U.S.C. §§ 1973 et seq.

Section 2, 42 U.S.C. § 1973................... .......... passim
Section 5, 42 U.S.C. § 1973c...........................passim

42 U.S.C. § 1988............................................................. 25
45 C.F.R. § 1632.3 (2009)............................................... 27
61 Fed. Reg. 63756 (Dec. 2, 1996)................................27

Legislative Materials

H.R. Rep. No. 439 (1965)........   19
H.R. Rep. No. 109-478 (2006)............................ 8, 32, 33
Modern Enforcement o f the Voting Rights Act, 

Hearing Before S. Comm, on the Judiciary,
109th Cong. (2006).............................................passim

TABLE OF AUTHORITIES -  Continued
Page



VI

Renewing the Temporary Provisions o f the 
Voting Rights Act: An Introduction to the 
Evidence: Hearing Before the S. Comm, on 
the Judiciary, 109th Cong. (2006)..............................7

S. Rep. No. 94-295(1975)................................................8
Testimony of Anita S. Earls Before the Sub- 

comm. on the Constitution o f the H. Comm, 
on the Judiciary (Oct. 25, 2005), 2005 WL 
2800039 (F.D.C.H.)..................................................... 34

The Continuing Need for Section 5 Pre- 
Clearance: Hearing Before the S. Comm, on 
the Judiciary, 109th Cong. 58-59 (2006).................32

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

Voting Rights Act: Section 5—Preclearance
Standards, Hearing Before the Subcomm. on 
the Constitution o f the H. Comm, on the Ju­
diciary, 109th Cong. (2005)......................................30

Voting Rights Act: The Continuing Need for 
Section 5: Hearing Before the Subcomm. on 
the Constitution o f the H. Comm, on the Ju­
diciary, 109th Cong. (2005)......................................36

TABLE OF AUTHORITIES -  Continued
Page



TABLE OF AUTHORITIES -  Continued
Page

Other A uthorities

James Blacksher, et al., Voting Rights in Ala­
bama: 1982-2006, 17 S. Cal. Rev. L. & Soc.
Just. 249 (2008)............................................. 13, 14, 15

David T. Canon, Race, Redistricting, and 
Representation (1999)................................................ 14

Wendy K. Tam Cho & Albert H. Yoon, Strange 
Bedfellows; Politics, Courts, and Statistics: 
Statistical Expert Testimony in Voting Rights 
Cases, 10 Cornell J. L. & Pub. Pol’y 237 
(2001)............................................................................ 24

Fed. Judicial Ctr., 2003-2004 District Court 
Case Weighting Study: Final Report to the 
Subcommittee on Judicial Statistics o f the 
Committee on Judicial Resources o f the Judi­
cial Conference o f the United States (2005)............ 20

Pamela S. Karlan, Section 5 Squared: Congres­
sional Power to Extend and Amend the Vot­
ing Rights Act, 44 Hous. L. Rev. 1 (2007)............... 34

Pamela S. Karlan, Two Section Twos and Two 
Section Fives: Voting Rights and Remedies 
After Flores, 39 Wm. & Mary L. Rev. 725 
(1998)............................... ...............................22, 23, 27

Robert Kengle, Voting Rights In Georgia, 1982- 
2006 (2006)...........................................................

Model Rules of Prof’l Conduct R. 3.4 (2004)......
..7
23



V l l l

TABLE OF AUTHORITIES -  Continued
Page

Municipal Government in Mississippi (P.C. 
McLaurin Jr. & Michael T. Allen eds., 2d ed.
2001)............................................................................. 28

Nat’l Comm’n on the Voting Rights Act, Protect­
ing Minority Voters: The Voting Rights Act At 
Work, 1982-2005 (2006).............................................27

Richard H. Pildes, The Future o f Voting Rights 
Policy: From Anti-Discrimination to the Right 
To Vote, 49 How. L.J. 741 (2006)...............................19

Brian J. Sutherland, Voting Rights Rollback:
The Effect o f  Buckhannon on the Private En­
forcement o f Voting Rights, 30 N.C. Cent. L.J.
267 (2008).................................................................... 25



1

INTEREST OF AMICI CURIAE1
Amici curiae are individuals and organizations 

that work to protect minority voting rights in covered 
and non-covered jurisdictions across the South.

Attorney amici are members of the private voting 
rights bar, and collectively have spent over 200 years 
working on voting rights cases. Together, they have 
testified in every congressional reauthorization 
hearing regarding Section 5 since 1971, and have 
extensive knowledge of the expense, time, and end­
less rounds of litigation required to effectively prose­
cute cases under Section 2 of the Voting Rights Act. 
Amici curiae are acutely aware that in the absence of 
the preclearance requirement, the resources available 
to enforce the Voting Rights Act through private 
litigation are completely insufficient to protect the 
rights guaranteed to minority voters under the 
Fifteenth Amendment.

James U. Blacksher is an attorney in Birming­
ham, Alabama. He argued City o f Mobile v. Bolden, 
446 U.S. 55 (1980), and has briefed several other 
voting rights cases before this Court, including 
Sinkfield v. Kelley, 531 U.S. 28 (2000).

1 This brief of amici curiae is filed with the consent of the 
parties. Written consent of all parties is being filed with the 
Clerk of Court together with this brief, in accordance with this 
Court’s Rule 37.3(a). No counsel for any party authored this 
brief in whole or in part, nor did any person other than amici 
and their counsel make a monetary contribution to the prepara­
tion or submission of this brief.



2

Julius Chambers is an attorney in Charlotte, 
North Carolina. A former director-counsel of the 
NAACP Legal Defense Fund, he has argued numer­
ous cases before this Court, including Thornburg v. 
Gingles, 478 U.S. 30 (1986) and Shaw v. Hunt, 517 
U.S. 899 (1996).

Armand Derfner is an attorney in Charleston, 
South Carolina, He has argued numerous Voting 
Rights Act cases before this Court, including Allen v. 
State Board o f Elections, 393 U.S. 544 (1969), and 
NAACP v. Hampton County Election Commission, 
470 U.S. 166(1985).

Anita Earls is an attorney in Durham, North 
Carolina. She is a former Deputy Assistant Attorney 
General in the Civil Rights Division of the U.S. 
Department of Justice, and the current executive 
director of the Southern Coalition for Social Justice.

Robert McDuff is an attorney in Jackson, Missis­
sippi. He has argued several cases before this Court, 
including the Voting Rights Act cases of Clark v. 
Roemer, 500 U.S. 646 (1991) and Branch v. Smith, 
538 U.S. 254 (2003).

Edward Still is an attorney in Birmingham, 
Alabama. He has tried and briefed Voting Rights Act 
cases in live states spanning the period from Bolden, 
446 U.S. 55, to Riley v. Kennedy, 128 S. Ct. 1970 
(2008).



3

Ellis Turnage is an attorney in Cleveland, Missis­
sippi. He has been litigating cases under Sections 2 and 
5 of the Voting Rights Act since 1983.

Cynthia McCottry Smith, Bernard R. Fielding, 
Marjorie Amos-Frazier, and Lee H. Moultrie are 
African-American citizens and registered voters from 
South Carolina who are active in voter education and 
organization in Charleston, and were plaintiffs or 
witnesses in the case of Moultrie v. Charleston- 
County, the companion case to United States v. 
Charleston County, 316 F. Supp. 2d 268 (D.S.C. 2003), 
a ff’d, 365 F.3d 341 (4th Cir.), cert, denied, 543 U.S. 
999 (2004). Southern Echo and Democracy North 
Carolina are nonprofit organizations that work to 
protect voting rights in jurisdictions covered under 
Section 5 through voter registration, education, and 
organization. In the absence of Section 5 enforcement, 
these individuals and organizations would not be able 
to work effectively to ensure equal voting rights.

Amici therefore file this brief to explain why, if 
the goals of the Voting Rights Act are ever to be 
realized, the judgment below must be affirmed.

---------------- ♦----------------

SUMMARY OF ARGUMENT

Appellant, a municipal utility district with “vir­
tually no familiarity of its own with the election 
process” and an existence of less than two decades 
(Appellee’s Br. 13), asserts that: (1) a “small number 
of objections” and a supposedly high number of



4

Section 2 lawsuits in two covered jurisdictions (Texas 
and Alabama) mean that Section 5 is redundant or 
ineffectual; and (2) Section 2 adequately addresses all 
voting discrimination that remains in covered juris­
dictions (Appellant’s Br. 44-48, 52.). Both premises 
are demonstrably false.

In comparison to Appellant’s limited familiarity 
with elections, attorney amici collectively have more 
than 200 years of experience litigating voting rights 
cases in covered and non-covered jurisdictions 
throughout the country. This experience has led amici 
to recognize the persistent need for timely enforce­
ment capable of deterring illegal voting schemes 
before they are implemented—a task for which case- 
by-case litigation under Section 2 is ill-suited, but for 
which Section 5 was designed.

Were Section 5 unavailable, there would be a 
significant increase in the number of discriminatory 
voting changes that voters and jurisdictions would be 
forced to address through litigation. But Section 2 
cannot substitute for the prophylactic function of 
Section 5. In practice, amici have seen Section 2 and 
Section 5 operate in the complementary fashion that 
Congress intended. Where minority voters in covered 
jurisdictions cannot find a lawyer or afford to pay 
one, Section 5 provides the means to redress new 
violations of their rights. And where minority voters 
are able to get their day in court, Section 5 provides 
the assurance that their hard-won and expensive 
battles will not have been fought in vain if a jurisdic­
tion repeats similar violations.



5

Too many discriminatory voting changes would 
remain unchallenged if Section 5 were invalidated. 
For individual minority voters, the cost and effort 
required to pursue Section 2 cases are great barriers 
to private enforcement, a problem made more acute 
by the small number of practitioners in covered 
jurisdictions who are willing and able to take such 
cases. This creates a perverse incentive—all too often 
realized—for officials to continue suspect practices 
because they know most voters cannot challenge 
them. In contrast, Section 5 serves as a deterrent to 
such practices.

Amici’s lengthy experience in the voting rights 
arena shows the importance of Congress’s considered 
decision to reauthorize Section 5. Without it, minority 
voters will fail to realize the full promise of the Voting 
Rights Act.

---------------- ♦----------------

ARGUMENT

I. Am ici’s Experience Confirms That 
Section 2 Cannot Replace The Prophylactic 
Function Of Section 5; The Two Enforcement 
Mechanisms Are Complementary

Although Appellant contends that the amount of 
Section 2 litigation brought in nine wholly or par­
tially covered states proves that such litigation alone 
is sufficient to prevent discriminatory voting prac­
tices (Appellant’s Br. 48), its argument ignores that



6

Section 2 and Section 5 provide different protections 
and operate in very different ways.

A. As Designed By Congress, Section 2 And 
Section 5 Are Mutually Reinforcing

Section 2 and Section 5 provide separate but 
complementary and mutually reinforcing mecha­
nisms to combat and remedy disfranchisement of 
minority voters. See South Carolina v. Katzenbach, 
383 U.S. 301, 315-16 (1966). Section 2 provides citi­
zens nationwide the right to sue to end any voting 
practice—whether new or old—that discriminatorily 
denies or abridges voting. See 42 U.S.C. § 1973. 
Under Section 2, the burden of proving the denial is 
on the voter and the litigation is highly complex, 
lengthy, and expensive. Section 5 applies prospec­
tively to prevent jurisdictions with the worst records 
of discrimination from enacting retrogressive prac­
tices or reimposing a system that courts have found 
violates voters’ rights. See 42 U.S.C. § 1973c. Under 
Section 5, the pre-approval requirement helps block 
and deter discriminatory voting changes at the outset 
and the cost to voters is comparatively tiny. Both 
Sections are necessary to ensure that minorities’ 
rights are meaningfully protected.

Without Section 2, old voting practices could 
carry forward far into the future in all jurisdictions, 
regardless of Section 5’s protections. Without 
Section 5 preclearance, many new discriminatory 
measures would go unchallenged because of the



7

absence of resources and sufficient lawyers to litigate 
them all under Section 2. Even if such practices are 
challenged, they could nevertheless infect multiple 
elections before voters obtain relief. (See NAACP Br. 
42 (noting that Congress enacted Section 5 “to protect 
minority citizens from even a temporary impairment 
of this most fundamental of civil rights during the 
sometimes prolonged period needed to bring and 
ultimately prevail in Section 2 litigation.”)) Moreover, 
“[w]hen a jurisdiction changes its election system in 
response to a Section 2 court order or to avoid 
Section 2 liability, Section 5 helps ensure that [later 
actors] will not water down the remedy.” Robert 
Kengle, Voting Rights In Georgia, 1982-2006, at 26 
(March 2006), referenced at Renewing the Temporary 
Provisions o f the Voting Rights Act: An Introduction to 
the Evidence: Hearing Before the S. Comm, on the 
Judiciary, 109th Cong. 30 (2006) (list of voting rights 
reports).2 Eliminating Section 5 would require minor­
ity voters to undertake the enormous time and ex­
pense of litigation every time a covered state or local 
government instituted a measure to dilute minority 
voting strength. (See NAACP Br. 43 (“Section 5 
complements Section 2 by prescreening voting 
changes, and it thereby often spares minority groups 
the substantial costs of pursuing after the fact litiga­
tion.”).)

2 All of the state reports referred to in the Senate hearing 
are available at http://www.civilrights.org/voting-rights/vra/states. 
html.

http://www.civilrights.org/voting-rights/vra/states


8

The experience of amici curiae in litigating voting 
rights cases confirms that Section 2 is not an adequate 
substitute for Section 5. First, the delay endemic to 
Section 2 litigation allows voting rights violations to 
persist over multiple elections, whereas Section 5 
preclearance offers a timely remedy. Second, even 
after courts find Section 2 violations, jurisdictions 
often persist in enacting discriminatory laws and 
engaging in discriminatory practices.

B. Case Studies

Three recent case studies involving amici demon­
strate these points. In United States v. Charleston 
County, amicus curiae Armand Derfner was an attor­
ney for the private plaintiffs (who are also amicus 
curiae). In the Dillard cases, amici curiae Ed Still 
and James Blacksher were plaintiffs’ counsel in 
Dillard v. Chilton County and Dillard v. Crenshaw 
County. In Moore v. Beaufort County, amicus curiae 
Anita Earls was plaintiffs’ counsel.

Although the tactics of the defendants in these 
cases may appear to be relics of the 1960s and 1970s, 
they are typical responses by contemporary jurisdic­
tions to Section 2 litigation. Compare S. Rep. No. 94- 
295, at 16-17 (1975) (“Measures [to dilute minority 
voting strength] may include switching to at-large 
elections, annexations of predominantly white areas, 
or the adoption of discriminatory redistricting plans.”) 
with H.R. Rep. No. 109-478, at 36 (2006) (noting the



9

persistent use of vote dilution schemes such as “en­
acting discriminatory redistricting plans; . . . enacting 
discriminatory annexations and deannexations . . . 
and changing . . . single member districts to at-large 
voting and implementing majority vote require­
ments”)- These cases reveal why the course of voting 
rights litigation under Section 2 is too pockmarked 
with pitfalls and detours to provide the only road to 
vindication for disenfranchised minority voters.

A fourth case, Tangipahoa Citizens for Better 
Government v. Parish o f Tangipahoa, demonstrates 
how Section 5 and Section 2 can work in concert to 
prevent abuses in their infancy.

1. Charleston County
Prior to 2004, Charleston County, South Caro­

lina’s nine-member County Council was elected under 
an at-large, partisan voting system. Charleston 
County, 316 F. Supp. 2d at 274. Because Section 5 did 
not apply to this voting system, Section 2 was the 
only recourse for minority voters seeking to challenge 
it. In 2004, that at-large system was dismantled by a 
judgment that the system resulted in racial discrimi­
nation in violation of Section 2 of the Voting Rights 
Act, The successful Section 2 suit was prosecuted over 
three years, but voters had been fighting the practice, 
unsuccessfully, for over a decade longer.

The lawsuit that ended the discriminatory at- 
large system was not the first one brought by minor­
ity voters. Two earlier federal court challenges were



10

brought in the 15 years prior to Charleston County. 
NAACP v. Charleston County, Civ. No. 2:89cv00293 
(D.S.C. 1989); Gadson v. Howard, Civ. No. 2:94cv01164 
(D.S.C. Aug. 15, 1995). Finally, the ultimately suc­
cessful suits—one filed by the United States and one 
by private plaintiffs—were brought at the beginning 
of 2001, and continued until this Court denied certio­
rari nearly four years later, in November 2004. 543 
U.S. 999 (2004). In the interim, the 2002 elections 
took place under the system later adjudged to be 
illegal. Because the County insisted on moving for a 
stay (which was denied), the 2004 elections came 
within a hair of being held under a discriminatory 
system as well. See Order at 2, Charleston County,
C.A. No. 2:01-562-23 (D.S.C. March 4, 2004) (denying 
defendants’ motion for stay). Of course, there were 
many more elections held under this illegal system 
between the 1989 challenge and the 2004 decision. 
Each of these elections carries a pall of discrimination 
that could have been remedied, but for the pains and 
costs of lengthy Section 2 litigation.

Remarkably, the Charleston County story did not 
end with the district court’s invalidation of the 
County Council’s at-large election format in 2003. In 
defiance of the Court’s decision, the South Carolina 
General Assembly enacted a law adopting an identi­
cal partisan at-large election format for the Charles­
ton County School Board. See Letter from R. 
Alexander Acosta, Assistant Attorney Gen., U.S. Dep’t 
of Justice to C. Havird Jones, Jr., Senior Assistant



11

Attorney Gen., S.C. Attorney Gen. (Feb. 26, 2004) 
(“Acosta Ltr.”).3

Prior to the Charleston County decision, the 
school district used a non-partisan, at-large system 
with no majority requirement, which had allowed 
several minority candidates to win board seats. See 
id. By contrast, the partisan, at-large format that the 
court in Charleston County had invalidated, and 
which the South Carolina General Assembly sought 
to adopt for the school board, created “a de facto 
majority vote requirement [that] makes it more 
difficult for the African-American community to em­
ploy a traditional strategy of bullet voting in order to 
improve their chances of electing candidates of their 
choosing.” Charleston County, 316 F. Supp. 2d at 294.

Fortunately, the new school board law was sub­
ject to preclearance. Without Section 5, minority 
voters would have had to pursue yet another lengthy 
and costly Section 2 suit. The school district would 
have been free to delay the vindication of plaintiffs’ 
rights and stave off a judgment by spending taxpayer 
dollars to manufacture arguments to distinguish this 
case from the County Council case. The Attorney 
General interposed an objection to this clear viola­
tion, thereby stopping the General Assembly’s at­
tempt at imposing a discriminatory system before it 
had any effect. See Acosta Ltr., supra.

3 Available at http://www.usdoj.gov/crt/voting/sec_54tr/l_022604.
php.

http://www.usdoj.gov/crt/voting/sec_54tr/l_022604


12

2. The Dillard Cases
In the 1986 case of Dillard v. Crenshaw County, 

640 F. Supp. 1347 (M.D. Ala. 1986), a federal court 
found that, for a century, the Alabama State Legisla­
ture had purposefully switched from single-member 
to at-large election of local governments and enacted 
“numbered place” and “anti-bullet voting laws” in the 
1950s and 1960s to prevent black voters from electing 
their candidates of choice. Dillard v. Baldwin County 
Bd. o f Educ., 686 F. Supp. 1459, 1461 (M.D. Ala. 
1988). Based on that finding, the District Court 
expanded the case to include a defendant class of 183 
cities, counties, and county school boards that were 
using such systems. Id.

In 1988, in one spinoff case, the Chilton County 
Commission admitted that its at-large voting system 
violated Section 2, and entered into a court-approved 
settlement that temporarily increased the number of 
commissioners from four to seven and incorporated 
“cumulative voting” into the Commission’s at-large 
format. Dillard v. Chilton County Bd. o f Educ., 699 
F. Supp. 870 (M.D. Ala. 1988), a ff’d, 868 F.2d 1274 
(11th Cir. 1989). According to the consent decree, this 
temporary system was to remain in place until the 
state legislature passed a system, recommended to it 
by the Chilton County Commission, that could be 
precleared under Section 5. See Consent Decree at 1, 
Dillard v. Chilton County Comm’n, CANo. 2:87-1179-T 
(M.D. Ala. June 23, 1988).



13

The new cumulative voting system that plaintiffs 
obtained through hard-fought and costly Section 2 
litigation remained in place for fifteen years; how­
ever, the Commission neglected its promise to pass a 
resolution proposing a new, valid election system. In 
2002, another Dillard jurisdiction successfully chal­
lenged a court-ordered expansion of its county com­
mission to which the County had not consented. 
Dillard v. Chilton County Comm’n, 447 F. Supp. 2d 
1273, 1275 (M.D. Ala. 2006) (citing Dillard v. Bald­
win County Comm’n, 222 F. Supp. 2d 1283 (M.D. Ala. 
2002), a ff ’d, 376 F.3d 1260 (11th Cir. 2004)). Seizing 
on the Baldwin County Commission decision, an all- 
white group sought to intervene in the Chilton 
County case. It asked the court to invalidate the 1988 
settlement, contending that in spite of the County’s 
explicit agreement to the consent decree, it could not 
be enforced if “a remedy to which the state agreed 
exceeded what a federal court could have imposed 
had the case gone to trial.” James Blacksher, et al., 
Voting Rights in Alabama: 1982-2006, 17 S. Cal. Rev. 
L. & Soc. Just. 249, 263 (2008); see Dillard v. Chilton 
County Comm’n, 447 F. Supp. 2d at 1275; Dillard v. 
Chilton County Comm’n, 452 F. Supp. 2d 1193, 1196 
(M.D. Ala. 2006).

Although the intervenors’ position was “contrary 
to Supreme Court precedent . . .  the district court 
kept the issue under submission for over a year, [and 
t]he Alabama Attorney General, instead of urging the 
district court to uphold the state’s 1988 agreement, 
first sided with the white intervenors, and then



14

withdrew from any participation in the matter.” 
Blacksher, et al., supra, at 263. In 2003, the interve- 
nors pressured the County Commissioners into 
adopting a resolution urging the passage of a local act 
restoring the discriminatory election format that the 
Commissioners, the plaintiffs, and the district court 
had all agreed violated Section 2 fifteen years earlier. 
Id. Indeed, “without the protections of Section 5 of the 
Voting Rights Act, some white-majority state and 
local governments in Alabama will bow to pressure 
from their white constituents and return to the 
racially discriminatory election practices of the past.” 
Id. at 263-64.

Wielding its preclearance authority under 
Section 5, the Attorney General’s office was able to 
thwart the Chilton County Commission’s attempt to 
return to the at-large system that the court had found 
was born of racial animus. See id. at 263; Letter from 
Joseph D. Rich, Chief, Voting Section, Civil Rights 
Div., Dep’t of Justice, to John Hollis Jackson & 
Dorman Walker (Oct. 29, 2003). As Bobby Agee, 
Chilton County’s first black commissioner since 
reconstruction,4 * noted in the aftermath of the case, 
“[w]e would be having a totally different conversation if 
[Section 5] didn’t exist. . .. [It’s a] very important 
protection. We would have been at ground zero without

4 David T. Canon, Race, Redistricting, and Representation
260 (1999).



15

Section 5.” Blacksher, et al., supra, at 2 6 4 . If not for 
Section 5, black voters today would be shut out of 
county commission office in Chilton County, twenty 
years after their successful Section 2 suit, 40 years 
after the 1965 Voting Rights Act, and 135 years after 
the passage of the Fifteenth Amendment.

3. Beaufort County
In 1988, no black candidate had been elected to 

the Beaufort County Board of County Commissioners 
for over thirty years, despite the county’s black voting 
age population of approximately thirty percent. Moore 
v. Beaufort County, 936 F.2d 159, 160 (4th Cir. 1991). 
In April 1988, black voters filed a complaint in federal 
court seeking to change the Board’s at-large, resi­
dency district-based election format. Id. After obtain­
ing a preliminary injunction, the plaintiffs were able 
to engage in negotiations and ultimately, in 1989, 
reach a settlement agreement changing the method of 
election to one providing an opportunity to elect 
candidates of choice to two out of seven seats on the 
board. Id. at 160-61. Shortly after finalizing this 6

6 The Dillard cases are a perfect example of the need for 
Section 5 preclearance to ensure that court-ordered remedies 
from Section 2 cases are not watered-down or ignored. The 
court’s order—to replace 189 unlawful at-large election systems 
—could not conceivably have been enforced through case-by-case 
litigation alone. The court’s remedy, to have new systems 
precleared under Section 5, was the only workable solution. 
Blacksher et al., supra, at 264.



16

agreement, however, the defendant county commis­
sioners reneged on the agreement. See id. at 161. The 
plaintiffs had no choice but to sue. Two years later, in 
June 1991, the Fourth Circuit Court of Appeals 
enforced the original settlement agreement. Id. at 
161-62, 164.

As in Charleston County and Dillard v. Chilton 
County, the threat of discrimination in Moore did not 
end with a court’s ruling in a Section 2 case. Ever 
since the settlement was enforced, African-Americans 
have elected candidates of choice to the Board of 
County Commissioners.6 However, some members of 
the Board have repeatedly sought to eliminate the 
use of limited voting, which, combined with staggered 
terms and a seven-member board, provides black 
voters the opportunity to elect their candidates of 
choice.6 7 Fortunately, because Beaufort County is 
covered under Section 5, any proposed change is 
subject to the non-retrogression requirement and no 
such proposals have been successful. See note 7, 
supra. In Beaufort County, Section 2 put a fair 
method of election in place (albeit allowing the defen­
dants to continue the unlawful practice for three 
years after they reneged on the agreement), and

6 See Jonathan Clayborne, Closed Session Acts May Have 
Lasting Impacts, Wash. Daily News, March 16, 2005, available 
at http://www.wdnweb.com/articles/2005/03/16/news/news03.txt.

7 See Jonathan Clayborne, Board Tackles Limited Voting, 
Wash. Daily News, Feb. 10, 2006, available at http://www.wdnweb. 
com/articles/2006/02/10/news/news03.txt.

http://www.wdnweb.com/articles/2005/03/16/news/news03.txt
http://www.wdnweb


17

Section 5 ensured that no hard-fought progress is 
lost.

4. Parish of Tangipahoa
The Tangipahoa Parish redistricting case shows 

how Section 2 and Section 5 enforcement work to­
gether to produce timely results for jurisdictions and 
voters alike. See Tangipahoa Citizens for Better Gov­
ernment v. Parish o f Tangipahoa, No. Civ.A.03-2710, 
2004 WL 1638106 (E.D. La. July 19, 2004). In Sep­
tember 2003, a group of Tangipahoa Parish citizens 
filed a Section 2 suit challenging that year’s redis­
tricting plan on the grounds that it failed to provide 
appropriate representation to its African-American 
residents. Id. at *1. By November 2003, the Parish 
had submitted and been denied preclearance for both 
its original map, and a subsequent revised map. Id. 
Upon receiving two objection letters, the Parish 
designed an amended plan to address the Attorney 
General’s concerns and held three public hearings on 
the new plan, which was precleared in January 2004. 
Id. The district held special elections under the 
precleared plan in March, a mere seven months after 
the filing of plaintiffs’ Section 2 complaint. Id. at *2. 
Section 5 protected minority voters before any elec­
tion took place under the discriminatory system.

Compare this experience to that of voters in 
Garza v. County o f Los Angeles, 918 F.2d 763 (9th Cir. 
1990), cert, denied, 498 U.S. 1028 (1991), a case that 
arose in a jurisdiction not covered by Section 5.



18

There, the shortcomings of Section 2 litigation are 
pronounced. The District Court found that the 
County

had engaged in intentional discrimination in 
redistrictings that it undertook in 1959, 1965 
and 1971 . . . [and] that the 1981 redistrict­
ing was calculated at least in part to keep 
the effects of those prior discriminatory re­
apportionments in place, as well as to pre­
vent Hispanics from attaining a majority in 
any district in the future.

Id. at 767. The plaintiffs suffered eight years of 
illegitimate elections until they were able to litigate 
the case in federal court under Section 2.

II. Few Plaintiffs Have The Capacity To 
Bring Section 2 Cases Because They Are 
Complex And Expensive, And Few Private 
Practitioners Are Willing To Take Them

Without the bulwark of Section 5, the burden of 
challenging discriminatory voting changes will fall 
upon economically disadvantaged minority voters and 
already overburdened voting rights lawyers. The 
types of cases generally pursued under Section 2— 
challenges to discriminatory redistricting plans and 
methods of election—are extraordinarily complex and 
take significant resources to pursue. Moreover, most 
of the voting changes will not be spread out over time, 
but will be concentrated in the immediate aftermath 
of the post-census redistricting in every state, county, 
and city in the covered jurisdictions, thus straining



19

the resources of the few lawyers who represent plain­
tiffs in Section 2 cases. Consequently, voters will only 
be able to obtain counsel and secure the necessary 
funding to challenge a tiny percentage of the new 
flood of discriminatory practices that would result 
from the elimination of Section 5.

A. The Complex And Expert-Intensive Na­
ture Of Section 2 Lawsuits Mean They 
Are Costly For Parties And The Courts

“Voting suits are unusually onerous to prepare.” 
Katzenbach, 383 U.S. at 314. Section 2 lawsuits are 
widely recognized as among the most complex, fact- 
intensive, time-consuming, and expensive federal 
cases to bring and to litigate. As this Court explained 
in 1966, one reason that Section 2 litigation is ineffec­
tive is because such suits “sometimes requir[e] as 
many as 6,000 man-hours [and are] exceedingly slow, 
in part because of the ample opportunities for delay 
afforded voting officials and others involved in the 
proceedings.” Id.', see also id. at 315 (Section 5 justi­
fied because “[f]our years [of litigation] is too long. 
The burden is too heavy—the wrong to our citizens is 
too serious” to rely solely on litigation) (quoting H.R. 
Rep. No. 439, 89th Cong., 1st Sess., at 11 (1965)); City 
ofBoerne v. Flores, 521 U.S. 507, 526 (1997) (Section 5 
necessary because of “the slow, costly character of case- 
by-case litigation”); Richard H. Pildes, The Future o f 
Voting Rights Policy: From Anti-Discrimination to the 
Right To Vote, 49 How. L.J. 741, 747 (2006). This level of 
complexity frequently requires thousands of hours of



20

attorney time, the extensive use of expert testimony, 
and considerable judicial resources.

Since 1993, the Federal Judicial Center has 
compiled statistics on the amount of time and effort 
required by 63 types of cases in the federal courts. See 
Fed. Judicial Ctr., 2003-2004 District Court Case 
Weighting Study: Final Report to the Subcommittee on 
Judicial Statistics o f the Committee on Judicial 
Resources o f the Judicial Conference o f the United 
States 9 (2005). The Federal Judicial Center study 
identifies voting rights cases as the sixth most time 
consuming, just ahead of civil antitrust cases. Id. at 
60 fig. 4. According to the study, voting rights cases 
require nearly four times the judicial resources of the 
median district court case. Id.

Section 2 suits are no less resource intensive for 
the parties and their counsel, as Charleston County 
illustrates. That case resulted in a six-week trial 
(excluding post-trial briefing), conducted only after 
proceedings before a magistrate judge and an unsuc­
cessful mediation by a senior district court judge. See 
U.S. Dist. Ct. D.S.C. (Charleston), Civil Docket for 
Case No. 2:01-cv-00562-PMD. After the district 
court’s 7 5-page opinion finding a Section 2 violation, 
there were further, lengthy proceedings to establish a 
remedy, followed by costly proceedings necessitated 
by the County’s insistent and repeated efforts to gain 
a stay or modify the judgment. Id. In this single case, 
defendants spent approximately $2,000,000 in fees 
and costs, including more than $100,000 in expert 
witness fees. Voting Rights Act: An Examination of



21

the Scope and Criteria for Coverage Under the Special 
Provisions o f the Act, Hearing Before the Subcomm. 
on the Constitution o f the H. Comm, on the Judiciary, 
109th Cong. 85 (2005) (statement of Armand Derfner, 
Voting Rights Attorney). Lawyers at a limited-budget 
nonprofit organization and a private practitioner in a 
two-person law firm collectively spent nearly 1800 
hours representing private plaintiffs. Order at 12, 
Charleston County, No. 2:01-ev-Q0562 PMD (D.S.C. 
Aug. 8, 2005). Furthermore, the Plaintiffs also had 
the benefit of the Justice Department’s involvement, 
and the resources of the federal government to help 
shoulder the burden of prosecuting the case.

The fees and hours demanded by Charleston 
County are hardly unique among Section 2 cases. To 
illustrate the point, each of the following awards is 
adjusted for inflation.8 In Major v. Treen, 700 F. Supp. 
1422, 1428 (E.D. La. 1988), plaintiffs’ attorneys 
worked on a contingent-fee basis, and devoted over 
2,500 hours to representing disadvantaged black 
residents of New Orleans in a successful challenge to 
Louisiana’s congressional redistricting. See id. at 
1428, 1435. The District Court noted that the state’s 
attorneys likely spent as much time on the case as 
plaintiffs’ counsel. Id. at 1430 n.5. Although plaintiffs 
were ultimately awarded attorneys’ fees in the 
amount of $335,864.15 and costs of $50,740, the

8 All figures adjusted for inflation using the Bureau of 
Labor Statistics inflation calculator, available at http://data.bls. 
gov/cgi-bin/cpicalc.pl.

http://data.bls


22

dispute over fees continued for five years after the 
case was decided on the merits. Id. at 1453. In Harper 
v. City o f Chicago Heights, Nos. 87 C 5112 88 C 9800, 
2002 WL 31010819 (N.D. 111. Sept. 6, 2002), the 
district court, in an opinion awarding plaintiffs’ 
attorneys $385,661.84, noted that the case had 
“spanned over a decade and, as the 600 plus entries 
on the docket sheet reflects [sic], was hard fought on 
both sides.” Id. at *3. Further examples are legion. 
See, e.g., Bone Shirt v. Hazeltine, 524 F.3d 863, 864 
(8th Cir. 2008) (denying plaintiffs recovery of expert 
witness fees, but noting that parties stipulated that 
the amount of requested expert fees ($59,391.33) was 
reasonable); Graves v. Barnes, 700 F.2d 220, 224 (5th 
Cir. 1983) (awarding $1,662,313.14 in attorneys’ fees); 
Cottier v. City o f Martin, No. CIV 02-5021, 2008 WL 
2696917 (D.S.D. March 25, 2008) at *5-6 (awarding 
plaintiffs $541,479 in attorneys’ fees for 2,446.61 
hours of work, and $56,331 in costs after deducting 
$45,265.54 in expert witness fees).

B. The Costs O f Section 2 Litigation Are A  
Serious Bar To Relief From Violations

With the addition of possibly hundreds of 
Section 2 cases if Section 5 were unavailable, and 
“[g]iven the miniscule size of the voting rights bar, 
requiring plaintiffs,” and their attorneys to take on 
such substantial fees and out-of-pocket costs “would 
quite plausibly leave literally thousands of unconsti­
tutional systems in place.” Pamela S. Karlan, Two 
Section Twos and Two Section Fives: Voting Rights



23

and Remedies After Flores, 39 Wm. & Mary L. Rev. 
725, 736 (1998). Although attorneys may be paid on a 
contingency-basis, ethical rules require plaintiffs to 
pay out-of-pocket for any fees and costs associated 
with expert witnesses. See Model Rules of Prof’l 
Conduct R. 3.4 cmt. (2004) (“The common law rule in 
most jurisdictions is that . . .  it is improper to pay an 
expert witness a contingent fee.”). As a result, plain­
tiffs without the means to pay for expert testimony 
are all but barred from pursuing Section 2 litigation. 
See, e.g., Karlan, Two Section Twos, supra, at 736 
(“The cost of proving what turned out to be a blatant 
series of constitutional violations [in Mobile v. 
Bolden] was staggering: The black plaintiffs’ lawyers 
logged 5,525 hours and spent $96,000 in out-of-pocket 
expenses, which were exclusive of expenses incurred 
by Justice Department lawyers after the department 
intervened in support of the Plaintiffs and the costs of 
expert witnesses and paralegals.”) (citation omitted).

As a result, in most covered jurisdictions, 
Section 5 objections have more significantly promoted 
progress in fair voting practices than Section 2 litiga­
tion. For example, only two of Mississippi counties’ 
redistricting plans changed as a result of reported 
Section 2 lawsuits without any Section 5 objections. 
Robert McDuff, Voting Rights in Mississippi, 1982- 
2006, at 17 (2006) reprinted in Modern Enforcement 
o f the Voting Rights Act, Hearing Before S. Comm, on 
the Judiciary, 109th Cong. 149 (2006) (“Modern 
Enforcement: S. Comm. Hearing.”) Without Section 5, 
the discriminatory redistricting plans initially passed



24

by the other counties would have prevented the 
election of most of the 127 African-Americans elected 
to county boards of supervisors (who come from sixty- 
seven different counties, forty-three of which incurred 
one or more Section 5 objections to redistricting plans 
for supervisors districts). Id. “The legal resources did 
not exist in Mississippi in the past forty years to 
bring a lawsuit in lieu of every one of the 169 objec­
tions that have been issued, and they will not exist in 
the future.” Id.

The theoretical availability of court-awarded 
attorneys’ fees is often cited as a mitigating factor in 
the burden on plaintiffs; however such recovery has 
often been seriously incomplete and tenuous.9 While 
the defendant could freely use taxpayer funds to 
retain the best counsel it can find anywhere in the 
country, at any expense, plaintiffs’ counsel who pre­
vail may be denied adequate payment. See, e.g., Arbor 
Hills Concerned Citizens Neighborhood Ass’n v. 
County o f Albany, 522 F.3d 182, 193-94 (2d Cir. 2007) 
(holding that plaintiffs’ New York City counsel could

9 For example, until the 2006 Amendment to the Voting 
Rights Act, prevailing plaintiffs could not recover for the ex­
penses of their expert witness. W. Va. Univ. Hosp. v. Casey, 499 
U.S. 83, 97 (1991). This was quite serious as expert testimony 
has increasingly become the focus of voting cases. See Wendy K. 
Tam Cho & Albert H. Yoon, Strange Bedfellows; Politics, Courts, 
and Statistics: Statistical Expert Testimony in Voting Rights 
Cases, 10 Cornell J. L. & Pub. Pol’y 237, 252 (2001) (noting that 
voting rights cases require particularly complex statistical 
analysis due to the Gingles framework).



25

only recover at far-lower Albany rates). Moreover, a 
plaintiff whose goals are achieved without a court 
order is not a prevailing party entitled to attorneys’ 
fees under 42 U.S.C. § 1988. Buckhannon Bd. & Care 
Home, Inc. v. W. Va. Dep’t o f Health & Human Res., 
532 U.S. 598, 603-07 (2001). Thus, if a defendant 
realizes during the midst of litigation or on the eve of 
trial that it is facing likely defeat, it may be able to 
avoid paying attorneys’ fees by unilaterally withdraw­
ing the challenged practice. See generally Brian J. 
Sutherland, Voting Rights Rollback: The Effect o f 
Buckhannon on the Private Enforcement o f Voting 
Rights, 30 N.C. Cent. L.J. 267, 277-88 (2008) (arguing 
that defendants in voting rights cases may strategi­
cally render plaintiffs’ claims moot so as to deny them 
an award of attorneys’ fees). By that time, the bulk of 
plaintiffs’ effort and expense has already been in­
curred. Thus, a unilateral withdrawal may simply 
(and may be intended to) deprive plaintiffs’ attorneys 
of fees.

C. The Lack O f Available Attorneys To 
Litigate Cases Is A  Barrier To Addi­
tional Section 2 Litigation

Even if most minority voters could afford to sue, 
many voting rights abuses might not be prosecuted at 
all due to the severe dearth of voting rights practitio­
ners in the private bar. “It is well-settled that civil 
rights cases, particularly those that are controversial 
and those that are based on contingent fees, are often 
not desirable to attorneys.” Order at 11, Moultrie v.



26

Charleston County, No. 2:01-cv-00562-PMD (Aug. 8, 
2005); see e.g., Cottier, 2008 WL 2696917, at *5 
(“Plaintiffs have produced evidence that they were 
unable to find members of the local bar who would 
represent them. In addition, [plaintiffs’ lead attorney] 
said in his affidavit that he would not have been willing 
to represent Plaintiffs without the resources and assis­
tance of the ACLU. The cost, complexity and undesir­
ability of this voting rights case forced Plaintiffs to 
look beyond the South Dakota bar for their attor­
neys.”).

The experience of amici, litigating in their home 
states, reflects the lack of available attorneys to litigate 
potential Section 2 cases.10 Amici know first-hand that

10 Although the NAACP Legal Defense Fund, NAACP 
Special Contribution Fund, the Lawyers Committee for Civil 
Rights Under Law, the ACLU Southern Regional Office, and 
MALDEF are able to help on occasional cases, these groups 
likely have fewer than twenty lawyers combined in their voting 
rights sections, and have obligations throughout the country 
that they must meet with finite resources. Their dockets would 
be overwhelmed far beyond their capacity if Section 5 were 
abandoned. Amici curiae know of no organizations that have 
more than five lawyers dedicated primarily to voting rights 
cases. Given the intense work required by Section 2 cases and 
deadlines imposed by election dates, these organizations can 
handle only a small number of cases at any one time. They do 
not have enough resources to litigate every voting rights abuse 
in the country. Therefore, Section 2 litigation falls to a few 
courageous plaintiffs willing to expend the precious time, energy, 
and resources to back multi-year complex litigation, and the few 
members of the private bar willing to expend the necessary time 
and resources on these cases despite the contingent nature of 
the fees, the unavailability of an enhancement, and the potential 

(Continued on following page)



27

there are not enough attorneys to address the current 
demand for Section 2 cases, much less the increase in 
demand which would result if Section 5 were elimi­
nated.

For example, in North Carolina, while there were 
between eight and ten attorneys in private practice 
experienced in voting rights litigation and willing to 
file such cases during the period between roughly 
1986 and 2002, since that time amici’s experience 
shows that the number has dwindled to only one or 
two. Indeed, institutional plaintiffs brought 45 percent 
(26 of the 58) of Section 2 cases in North Carolina 
between 1982 and 2005.11 See Nat’l Comm’n on the 
Voting Rights Act, Protecting Minority Voters: The 
Voting Rights Act At Work, 1982-2005 (2006) (“Protect­
ing Minority Voters”). These resources are hardly 
unlimited, however, and the more than 50% of cases 
remaining must be handled by members of the “min­
iscule” private voting rights bar. Karlan, Two Section 
Twos, supra, at 736.

In Mississippi, the attorneys with significant 
experience handling Section 2 claims who are willing 11

that a jurisdiction will evade payment by abandoning the 
challenged practice at the last minute.

11 Of those 58 cases, several were fded by attorneys appear­
ing in their capacities as attorneys employed by legal services 
programs. Id. Those attorneys, since 1996, have been barred 
from “participating in any . . . way in litigation related to 
redistricting.” 45 C.F.R. § 1632.3 (2009); see 61 Fed. Reg. 63756 
(Dec. 2, 1996).



28

and able to take cases for minority plaintiffs probably 
number between two and five. Since the last renewal 
of Section 5, at least 155 potentially discriminatory 
voting changes in Mississippi were blocked because of 
Section 5. J.S. App. 70, Map 9 /2 Mississippi’s lawyers 
could have handled no more than a small percentage 
of those potential cases if Section 2 had been the only 
recourse. See McDuff, supra, at 17.

Mississippi lawyers and organizations are able to 
handle, at most, a handful of cases in any post-census 
redistricting cycle.12 13 Given the deluge of redistrictings 
not only at the state level, but for county governing 
boards, school boards, and justice courts in each of 
Mississippi’s 82 counties, as well as city councils in its 
274 municipalities,14 these lawyers could not come

12 The opinion of the three judge district court (J.S. App. 1- 
183) is reported at 573 F. Supp. 2d 221.

13 One amicus curiae, Southern Echo, works with commu­
nity groups to use the Section 5 comment process as a means of 
alerting the United States Department of Justice to discrimina­
tory redistricting plans. Southern Echo: Census and Redistrict- 
ing, http://southernecho.org/s/?page_id=256. But Southern Echo 
has no practicing attorneys on staff. Southern Echo: Staff, http:// 
southernecho.org/s/?page_id=55. Other public interest organiza­
tions in Mississippi are occupied with other priorities and, like 
Southern Echo, will not be able to devote much time or money to 
Section 2 litigation. See Modern Enforcement. S. Comm. Hearing, 
supra, at 96 (written responses of Robert B. McDuff, Attorney).

14 See Municipal Government in Mississippi 393 (RC. 
McLaurin Jr. & Michael T. Allen eds., 2d ed. 2001), available at 
http://wwnv.mslocalgovernment.org/publications/city/books/2001/ 
index.htm.

http://southernecho.org/s/?page_id=256
http://wwnv.mslocalgovernment.org/publications/city/books/2001/


29

close to handling the workload if Section 5 disap­
peared. It would be impossible for the few available 
Mississippi lawyers to review more than a handful of 
cases and bring Section 2 cases challenging discrimi­
natory redistrictings in time to stop those plans from 
being implemented. This is equally true in other 
covered states.

In Alabama, James U. Blacksher and Edward 
Still were two of the three lawyers that represented 
the plaintiffs in the Dillard cases. Each has also 
represented minority plaintiffs in state-level redis­
tricting cases following the 1980, 1990, and 2000 
Censuses. Other than their Dillard co-counsel, Larry 
Menefee (who no longer takes voting cases), there are 
no lawyers who have represented black plaintiffs or 
intervenors in any Alabama Section 2 cases since 
1995.

D. Due To Their Access To Taxpayer 
Funds, Jurisdictions Violating Section 2 
Do Not Face Similar Burdens, And In 
Fact Have An Incentive To Stall

In the absence of Section 5, the prospect that 
official action will be subject to scrutiny is severely 
diminished. Under a regime where Section 2 litiga­
tion is the only enforcement mechanism, officials 
sometimes have little incentive for voluntary 
compliance where plaintiffs may lack the resources to 
fund complex multiyear litigation or no lawyers may 
be willing to take the case. As Virginia Congressional



30

Representative Robert Scott noted in the 2005 reau­
thorization hearings:

Bringing a section 2 action is very expensive, 
more than what most voters or small groups 
may be willing to afford to vindicate their 
rights. And even if they were able to make a 
case and be successful, this would be years 
down the road by the time you take into 
account the time frame for litigation, includ­
ing appeals. By then, the winner of the ille­
gal election is an incumbent, and we all 
know . . . that incumbency is a huge and, 
more often than not, dispositive advantage in 
an election. So it is clear that if we do not re­
new this section, we would essentially create 
a perverse incentive to pass illegal plans 
with no immediate recourse.

Voting Rights Act: Section 5—Preclearance Stan­
dards, Hearing Before the Subcomm. on the Constitu­
tion o f the H. Comm, on the Judiciary, 109th Cong. 4 
(2005) (statement of Rep. Scott).

Even if a jurisdiction does face a Section 2 suit, 
officials have all the taxpayers’ resources available to 
defend the challenge. The Edgefield County School 
District case provides an example of the incentives for 
official intransigence in the face of Section 2 litiga­
tion. Edgefield County’s County Council at-large 
electoral scheme was a subject of a 1974 litigation 
that resulted in this Court’s decision in McCain v. 
Lybrand, 465 U.S. 236 (1984), and was “ultimately 
disposed of 11 years later upon the implementation of 
a five single-member districts election plan in place of



31

the at-large system for County Council election.” 
Jackson v. Edgefield County Sch. Dist., 650 F. Supp. 
1176, 1189-90 (D.S.C. 1986). But Edgefield County 
continued to conduct its elections for school board 
using an at-large method, forcing minority voters to 
file another lawsuit to challenge the same type of 
election system that was invalidated by this Court. 
Id. Rather than accepting precedent and the rule of 
law just established in McCain, the Edgefield County 
School District fought the case tenaciously, at great 
length and cost, before a trial resulted in the election 
system’s invalidation. Id. at 1203-04. The judgment 
required the school board to submit a new election 
plan and “seek preclearance of such plan and sched­
ule pursuant to Section 5 of the Voting Rights Act.” 
Id. at 1204.

The ability to stay in office under an illegal 
election system, and defend that system at taxpayer 
expense, creates a further incentive for officials in 
offending jurisdictions to use all the resources at their 
disposal to fight these suits to judgment and beyond.

III. Appellant Ignores The Deterrent Effect Of 
Section 5

In contrast to the perverse incentives created by 
the cost of Section 2 litigation, Section 5 has an 
opposite deterrent effect. Appellant attempts to make 
much of a so-called “vanishingly small number of 
objections.” (Appellant’s Br. 52.) However, this mis- 
characterizes the evidence. The Department of Justice



32

(“DOJ”) actually made more objections between 1982 
and 2004 than between 1965 and 1982, (See NAACP 
Br. 35.) See H.R. Rep. No. 109-478, at 21. And since 
Section 5 was last renewed in 1982, over 750 
Section 5 objections have prevented the implementa­
tion of at least 2400 potentially discriminatory voting 
changes by state and local governments. (Fed. Appel­
lee’s Br. 43.) See also J.S. App. 70, Map 9. Further­
more, regardless of how Appellant characterizes the 
absolute number of objection letters, each objection 
affects thousands, if not hundreds of thousands, of 
minority voters in covered jurisdictions. Between 
2000 and 2006, “Section 5 objections have functioned 
to aid small as well as large scale elections, shielding 
as few as 208 and as many as 215,406 voters with a 
single objection.” The Continuing Need for Section 5 
Pre-Clearance: Hearing Before the S. Comm, on the 
Judiciary, 109th Cong. 58-59 (2006) (written re­
sponses of Anita S. Earls).

Faced with this data, Appellant claims that the 
number of objection letters issued as a percentage of 
total submissions “is more revealing.” (Appellant’s Br. 
52.) However, the percentage of objection letters, or 
even the large number of letters themselves, fails to 
tell the whole story concerning the positive deterrent 
effect of Section 5.

Part of the prophylactic effect of Section 5 comes 
from what are called “more information request” 
letters, or MIRs, that are issued by the DOJ. See 
Modern Enforcement-. S. Comm. Hearing, supra, at 
76-77 (written responses of Natalie Landreth, Staff



33

Attorney, Native Am. Rights Fund, Anchorage, 
Alaska) (“[TJhese less formal measures give the 
jurisdiction notice that its activities are being moni­
tored and thus deter that jurisdiction from proceeding 
in an inappropriate manner. The DOJ does not send 
objection letters as a knee-jerk reaction and therefore 
they cannot serve as the only indicator [of a prob­
lem].”); id. at 25 (statement of Juan Cartagena, Gen. 
Counsel, Cmty. Serv. Soc’y, N.Y., N.Y.) (state responses 
to MIRs “demonstrate!] the effectiveness . . .  of 
Section 5 objections above and beyond the number of 
objections issued”). MIRs outnumber objection letters, 
increasing the number of changes that were not 
precleared by the DOJ. J.S. App. 65-67 (noting that 
“in terms of enforcing section 5, MIRs have become 
nearly as important as formal objection letters.”)

Just as important are the changes that never 
make it to objections because they were made in 
compliance with the law or never even attempted. 
H.R. Rep. No. 109-478, at 24. As Congress found, “the 
existence of Section 5 deterred covered jurisdictions 
from even attempting to enact discriminatory voting 
changes.” Id. It emphasized that Section 5’s deterrent 
effect was “substantial”:

Once officials in covered jurisdictions become 
aware of the logic of preclearance, they tend 
to understand that submitting discrimina­
tory changes is a waste of taxpayer time and 
money and interferes with their own timeta­
bles, because the chances are good that an 
objection will result.



34

Id. (quoting Protecting Minority Voters, supra, at 57). 
The submission requirement itself “prevents retro­
gression and prevents harming minority voting 
strength and prevents back-sliding, the very types of 
evils that Congress sought to prevent in passing 
Section 5.” Modern Enforcement: S. Comm. Hearing, 
supra, at 8 (2006) (statement of Wan J. Kim, Assis­
tant Attorney Gen., Civil Rights Div., Dep’t of Jus­
tice); (see also Appellee’s Br. 11-14.)

Section 5 also provides an incentive for officials 
to include minority voters and their representatives 
in contemplated changes that may have an impact on 
minority voting strength. See Pamela S. Karlan, 
Section 5 Squared: Congressional Power To Extend 
and Amend the Voting Rights Act, 44 Hous. L. Rev. 1, 
24 (2007) (noting that Section 5 “increases the minor­
ity communities’ leverage in demanding accommoda­
tion of minority concerns”). For example, when the 
city of Rocky Mount, North Carolina annexed pre­
dominantly white neighborhoods nearby but refused 
to annex the traditionally African-American commu­
nity of Battleboro, Battleboro residents were able to 
use the prospect of a Section 5 objection to preempt 
this discriminatory policy and gain the benefits of 
municipal services and the ability to vote in local 
elections. See Testimony o f Anita S. Earls Before the 
Suhcomm. on the Constitution o f the H. Comm, on 
the Judiciary (Oct. 25, 2005), 2005 WL 2800039 
(F.D.C.H.) (“One of the key factors that led the city [of 
Rocky Mount] to finally agree to annex this [tradi­
tionally African-American] community was the fact



35

that community members were prepared to vigor­
ously oppose any future annexations of white 
neighborhoods in the Section 5 preclearance proc­
ess.”)

Other jurisdictions show a desire to comply with 
Section 5 and appreciate its prospective benefits. 
Travis County, the covered jurisdiction Appellant 
contracted to run all of its elections, values its 
Section 5 coverage because “the County—not to 
mention its voters—receives benefits from the 
Section 5 preclearance process. [Section 5]’s valuable 
educational and deterrent effects aid the County and 
election officials in administering their multifaceted 
election duties.” (Appellee’s Br. 15.) Indeed, “[i]t 
would undoubtedly prove more costly to the County to 
litigate a Section 2 case to conclusion . . . than to 
consider and address in advance [the contemplated 
change] in the process of seeking and obtaining 
preclearance.” Id. at 11 (likening Section 5 to “preven­
tative maintenance” of the election system, and 
Section 2 to “major repairs,” and noting that “[i]f 
ever there were a circumstance where an ounce of 
prevention is worth a pound of cure,” it is in the 
conduct of free and nondiscriminatory elections).

Similarly, Professor Richard Engstrom, a con­
sultant in redistricting process for State legislators, 
testified,

as a consultant who has had a role in draw­
ing maps and the process, that . . . section 5 
looms seriously over political cartographers



36

and decision makers when it comes to plans.
And I can testify that I have seen districts 
changed in order to avoid retrogression and 
gain preclearance.

Voting Rights Act: The Continuing Need for Section 5: 
Hearing Before the Suhcomm. on the Constitution o f 
the H. Comm, on the Judiciary, 109th Cong. 31 (2005) 
(testimony of Richard Engstrom, Professor, Univ. of 
New Orleans). And in Alaska, DOJ’s sole objection 
had a “dramatic impact” over a decade, and “demon­
strates that even a single objection can have a signifi­
cant impact on the political landscape [statewide] and 
that the mere prospect of another objection can 
ensure compliance with the law.” Modern Enforce­
ment: S. Comm. Hearing, supra, at 81 (written re­
sponses of Natalie Landreth).

*  *  *

Section 2 simply cannot replace the protections 
afforded by Section 5. It cannot stop violations before 
they happen. Minority voters do not have the re­
sources to litigate every discriminatory practice 
currently captured by Section 5 preclearance, and 
there is a dearth of lawyers with the experience and 
wherewithal to litigate these complex, time-consuming 
cases. Even when cases are brought under Section 2, 
discriminatory election systems continue to taint the 
voting process as the cases wind their way through 
courts. The Court should not second-guess Congress’



37

finding that Section 5 is needed to fulfill the Fifteenth 
Amendment’s promise in covered jurisdictions.

---------------- ♦-----------------

CONCLUSION

The judgment of the district court should be 
affirmed.

Respectfully submitted,
W illiam D. Kissinger 

Counsel o f  Record 
Sujal J. Shah 

Erin Shannon-Conroy 
Perry M. Grossman 

Sarah L. Bishop 
B ingham M cCutchen LLP 

Three Embarcadero Center 
San Francisco, CA 94111-4067 

(415) 393-2000 
Counsel for Amici Curiae