Shelby County v. Holder Brief Amicus Curiae

    No. 12-96

3JtI ® fjt

S u p r e m e  C o u r t  of tfje M m te b  S t a t e s
--------------- « ----------------

SHELBY COUNTY, ALABAMA,

Petitioner,
v.

ERIC H. HOLDER, JR., ATTORNEY GENERAL, et al.,

Respondents.

--------------- ♦----------------

On Petition For Writ Of Certiorari 
To The United States Court Of Appeals 
For The District Of Columbia Circuit

--------------- ♦----------------

AMICUS CURIAE BRIEF OF 
MOUNTAIN STATES LEGAL FOUNDATION 

IN SUPPORT OF PETITIONER

--------------- « ----------------

J. Scott Detamore
Mountain States Legal Foundation
2596 South Lewis Way
Lakewood, Colorado 80227
Tel. (303) 292-2021
detamore@mountainstateslegal.com

Attorney for Amicus Curiae
Mountain States Legal Foundation

COCKLE LAW BRIEF PRINTING CO. (800) 226-6964 
OR CALL COLLECT (402) 342-2831

mailto:detamore@mountainstateslegal.com


1

QUESTION PRESENTED

Whether the “congruency and proportionality” 
test governs the standard of review for the consti­
tutionality of remedial legislation enacted pursuant 
to both the Fourteenth and Fifteenth Amendments?



11

TABLE OF CONTENTS
Page

QUESTION PRESENTED..................................... i
TABLE OF CONTENTS......................................... ii
TABLE OF AUTHORITIES................................... iv
IDENTITY AND INTEREST OF 

AMICUS CURIAE.............................................. 1
STATEMENT OF THE CASE...............................  3
REASON FOR GRANTING THE PETITION......  6

I. THE CONGRUENCY AND PROPORTION­
ALITY STANDARD ENSURES THAT CON­
GRESS DOES NOT EXCEED ITS 
REMEDIAL POWERS CONFERRED BY
THE FOURTEENTH AND FIFTEENTH 
AMENDMENTS.......................................... 7

II. BOTH KATZENBACH AND BOERNE ES­
TABLISHED THE CONGRUENCY AND 
PROPORTIONALITY STANDARD OF RE­
VIEW............................................................ 9
A. Katzenbach Ruled That What Is “Ap­

propriate” And “Reasonable” Remedial 
Legislation Depends Upon The Nature 
Of The Constitutional Violation To Be 
Remedied And The Means Adopted To
Do So........................................ ............. 9

B. Katzenbach Established A Congruency 
And Proportionality Standard Of Re­
view Without Expressly So Stating.....  11



Ill

TABLE OF CONTENTS -  Continued
Page

C. Boerne Adopted Katzenbach’s Fifteenth 
Amendment Analysis As The Model 
For Its Congruency And Proportional­
ity Standard Of Review......................... 14

CONCLUSION.......................................................  16



IV

Cases

City of Boerne v. Flores, 521 U.S. 507 (1997)... ..passim
Ex Parte Virginia, 100 U.S. (10 Otto) 339 

(1879).................................................................. 9, 10
Large v. Fremont County, Wyo., 709 F. Supp. 2d 

1176 (D. Wyo. 2010)..................................................2
McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 

(1819)...................................................................9, 10
Nw. Austin Mun. Util. Dist. No. 1 v. Holder,

573 F. Supp. 2d 221 (D.D.C. 2008).......................... 4
Nw. Austin Mun. Util. Dist. No. 1 u. Holder,

557 U.S. 193 (2009)...........................................2, 4,5
Shelby County, Ala. v. Holder, 811 F. Supp. 2d 

424 (D.D.C. 2011)..................................................3, 4
Shelby County, Ala. v. Holder, 679 F.3d 848 

(D.C. Cir. 2012)................................................2, 4, 11
State of S.C. v. Katzenbach, 383 U.S. 301 

(1966)...............................................................passim
United States v. Alamosa County, Colo., 306 

F. Supp. 2d 1016 (D. Colo. 2004)............................ 2
United States v. Blaine County, Mont., 363 F.3d 

897 (9th Cir. 2004), cert, denied, 544 U.S. 992 
(2005)............................................................ 2

TABLE OF AUTHORITIES
Page



V

TABLE OF AUTHORITIES -  Continued

Constitutional Provisions

U.S. Const, amend. XIV .....
U.S. Const, amend. XV.......

.passim
passim

Page

Statutes

Voting Rights Act Reauthorization and Amend­
ments Act, Pub. L. No. 109-246, 120 Stat.
577 (2006)................................................................... 3

Section 4(b) of the Voting Rights Act (42 U.S.C.
§ 1973b(b))..............................................................3>6

Section 5 of the Voting Rights Act (42 U.S.C.
§ 1973c).............................................................passim

Rules

Supreme Court Rule 37.2 1



1

AMICUS CURIAE BRIEF OF 
MOUNTAIN STATES LEGAL FOUNDATION 

IN SUPPORT OF PETITIONER
Pursuant to Supreme Court Rule 37.2, Mountain 

States Legal Foundation (“MSLF”) respectfully sub­
mits this amicus curiae brief, on behalf of itself and 
its members, in support of Petitioner.1

--------------- ♦----------------

IDENTITY AND INTEREST 
OF AMICUS CURIAE

MSLF is a nonprofit, public-interest legal foun­
dation organized under the laws of the State of Colo­
rado. MSLF is dedicated to bringing before the courts 
those issues vital to the defense and preservation 
of individual liberties, the right to own and use 
property, the free enterprise system, and limited and 
ethical government. MSLF has members who reside 
and work in every State. MSLF and its members 
strongly believe that the Founders created a federal 
republic, in which the federal government is one of 
limited, enumerated powers, and that federalism and

1 Pursuant to Supreme Court Rule 37.2(a), notice of MSLF’s 
intent to file this amicus curiae brief was received by counsel of 
record for all parties at least 10 days prior to the due date of this 
brief and all parties consent to the filing of this amicus curiae 
brief. The undersigned further affirms that no counsel for a party 
authored this brief in whole or in part, and no person or entity, 
other than MSLF, its members, or its counsel, made a monetary 
contribution specifically for the preparation or submission of 
this brief.



2

separation of powers is at the heart of the U.S. Con­
stitution. Since its creation in 1977, MSLF has been 
active in litigation opposing legislation in which the 
federal government acts beyond its constitutionally 
delegated powers, or in derogation of the principles of 
federalism and separation of powers.

Especially relevant to this case, MSLF has chal­
lenged the power of Congress to enact the 1982 
Amendment to the constitutionality of Section 2 of 
the Voting Rights Act (“VRA”), arguing Congress had 
exceeded its powers, in three different cases: United 
States v. Blaine County, Mont., 363 F.3d 897 (9th Cir. 
2004), cert, denied, 544 U.S. 992 (2005); United States 
v. Alamosa County, Colo., 306 F. Supp. 2d 1016 (D. 
Colo. 2004); and Large v. Fremont County, Wyo., 709 
F. Supp. 2d 1176 (D. Wyo. 2010). Recently, MSLF also 
filed an amicus curiae brief with this Court support­
ing a challenge to the constitutionality of the 2006 
Reauthorization of Section 5 of the Voting Rights Act 
in Nw. Austin Mun. Util. Dist. No. 1 v. Holder, 557 
U.S. 193 (2009). MSLF also participated as an amicus 
curiae in the case below, Shelby County, Ala. v. Hold­
er, 679 F.3d 848, 884 (D.C. Cir. 2012). MSLF brings a 
unique perspective to this case and believes that its 
amicus curiae brief will assist this Court in consider­
ing whether to grant the Petition.

--------------- ♦---------------



3

STATEMENT OF THE CASE
Shelby County filed suit in the district court for 

the District of Columbia arguing that Congress 
exceeded its Fourteenth and Fifteenth Amendment 
remedial powers by reauthorizing Sections 4(b) and 
5 of the Voting Rights Act (codified as 42 U.S.C. 
§ 1973b(b) and 42 U.S.C. § 1973c, respectively) in the 
Voting Rights Act Reauthorization and Amendments 
Act, Pub. L. No. 109-246, 120 Stat. 577 (2006).2 Shel­
by County, Ala. v. Holder, 811 F. Supp. 2d 424, 427 
(D.D.C. 2011) “The Attorney General . . . argue[d] . . . 
that ‘when Congress is legislatively enforcing the 
Fifteenth Amendment’s prohibition on race discrimi­
nation with respect to voting, the Court reviews the 
appropriateness of that legislation under a deferen­
tial rationality standard,’ ” not congruency and pro­
portionality, as announced in City of Boerne v. Flores, 
521 U.S. 507, 519-20 (1997). Id. at 448-49.

The district court rejected that argument: “Boerne’s 
congruence and proportionality framework reflects a 
refined version of the same method of analysis uti­
lized in Katzenbach (State of S.C. v. Katzenbach, 383 
U.S. 301 (1966)), and hence provides the appropriate 
standard of review to assess Shelby County’s facial 
constitutional challenge to Section 5 and Section

2 All references to “Section 5” are references to Section 5 of 
the Voting Rights Act.



4

4(b). Id. But the district court also erroneously held 
that Section 5 of the Voting Rights Act met the con­
gruency and proportionality standard. Id. at 502-03. 
Shelby County appealed that holding to the D.C. 
Circuit.

The Attorney General renewed his argument on 
appeal: “The Attorney General insists that Congress 
may use ‘any rational means’ to enforce the Fifteenth 
Amendment (citing Katzenbach, 383 U.S. at 324).” 
Shelby County, 679 F.3d at 859.4 The D.C. Circuit did

' The government made the same argument successfully to 
a three-judge panel of the district court in Nw. Austin Mun. Util. 
Dist. No. 1 v. Holder, 573 F. Supp. 2d 221, 235-36 (D.D.C. 2008), 
rev’d on other grounds by Nw. Austin Mun. Util. Dist. No. 1 v. 
Holder, 557 U.S. 193 (2009). That court ruled that there are “two 
distinct standards for evaluating the constitutionality of laws en­
forcing the Civil War Amendments.” That is, “notwithstanding 
the City of Boerne cases [under the Fourteenth Amendment], 
Katzenbach s rationality standard remains fully applicable to 
constitutional challenges to legislation [under the Fifteenth 
Amendment] aimed at preventing racial discrimination in vot­
ing. Nw. Austin, 573 F. Supp. 2d at 235-36 (emphasis added).

The Attorney General modified his argument at the D.C. 
Circuit in his principal brief. He conceded that “the terms ‘en­
force and appropriate legislation’ have the same meaning in the 
Fourteenth and Fifteenth Amendments.” Brief of Appellee at 27, 
Shelby County, Ala. v. Holder, No. 11-626, Dkt. 1345212 (D.C. 
Cir. 2012). Then he argued that Katzenbach’s “rational basis 
review” applied to all legislation under the Fifteenth Amend­
ment. Id. at 27. Finally, he tried to extend deferential review to 
the Fourteenth Amendment, insofar as it targeted race discrim­
ination, by suggesting that Boerne’s congruence and proportion­
ality test applied to Fourteenth Amendment legislation only 
when it targeted acts “outside the core prohibitions on race dis- 
criminationt.]” Id. at 27-28.



5

not answer this question and settle the conflict of 
opinions from the district court. Though noting that 
the Supreme Court, in Nw. Austin Mun. Util. Dist. 
No. 1 v. Holder, 557 U.S. 193 (2009), sent a “powerful 
signal that congruence and proportionality is the ap­
propriate standard of review,” id., it did not decide 
the issue: “[I]n any event, if section 5 survives the 
arguably more rigorous ‘congruent and proportional­
ity’ standard, it would also survive Katzenbach’s 
rationality review.” Id. So the D.C. Circuit analyzed 
the case under congruency and proportionality, with­
out deciding that it was required to do so, and held 
that Section 5 was congruent and proportionate leg­
islation and, therefore, constitutional under both the 
“congruency and proportionality” standard and the 
“rational means” standard. Id. at 873. Petitioner then 
filed its Petition.

This background demonstrates the Attorney Gen­
eral’s relentless determination to establish a deferen­
tial standard of review for remedial legislation under 
both the Fourteenth and Fifteenth Amendments that 
targets racial discrimination. The matter was not 
decided by the D.C. Circuit and it is very likely 
that the Attorney General will persist in arguing 
that Katzenbach and Boerne are inconsistent and 
that they establish very different standards of review 
for race discrimination remedies. Therefore, it is



6

imperative that this Court provide a definitive deci­
sion on the proper standard of review.6

---------------« ----------------

REASON FOR GRANTING THE PETITION
This Court should grant the Petition not only for 

the reasons stated in the Petition, but also to firmly 
establish that there is only one standard of review for 
constitutional challenges to remedial enforcement 
legislation enacted pursuant to the Fourteenth and 
Fifteenth Amendments -  congruency and proportion­
ality. The Attorney General will likely continue to 
argue to the contrary. The proper standard of review 
for challenges to the constitutionality of remedial 
enforcement legislation pursuant to the Fourteenth 
and Fifteenth Amendments is an important national 
question that this Court has not expressly decided.

MSLF agrees with Petitioners that the outcome of the 
challenge to the coverage formula under Section 4(b) of the 
Voting Rights Act, 42 U.S.C. § 1973b(b), does not necessarily de­
pend upon whether the “congruency and proportionality” stan­
dard of review is applied to Section 4(b). See Petition at 29-35.



7

I. THE CONGRUENCY AND PROPORTION­
ALITY STANDARD ENSURES THAT CON­
GRESS DOES NOT EXCEED ITS REMEDIAL 
POWERS CONFERRED BY THE FOUR­
TEENTH AND FIFTEENTH AMENDMENTS.

The Fourteenth and Fifteenth Amendments are 
remedial and merely prohibit certain State conduct. 
Thus, “Congress’s power under § 5 extends only to 
‘enforcing the provisions of the Fourteenth Amend­
ment^ which] [t]his Court has described . . .  as ‘reme­
dial.’ ” Boerne, 521 U.S. at 519 (quoting Katzenbach, 
383 U.S. at 326). Congress “has been given the power 
‘to enforce’ a constitutional right, not the power to 
determine what constitutes a constitutional viola­
tion.” Id. That is, “if Congress could define its own 
powers by altering the Fourteenth Amendment’s 
meaning, no longer would the Constitution be the 
superior paramount law, unchangeable by ordinary 
means.” Id. at 529.

Constitutional difficulty arises when Congress, 
in a purported attempt to prevent unconstitutional 
conduct, legislates regulating conduct that is facially 
constitutional, without requiring proof of discrim­
inatory intent -  so-called “prophylactic legislation” 
like Section 5. In such a case, the question arises 
as to whether Congress has enforced the constitu­
tional prohibition set forth in the Amendment, or 
whether it has unconstitutionally substantively de­
fined the Amendment. To address this, Boerne pro­
nounced the congruency and proportionality standard 
of review:



8

There must be a congruence and proportion­
ality between the injury to be prevented or 
remedied and the means adapted to that end. 
Lacking such a connection, legislation may 
become substantive in operation and effect.

Id. at 519-20 (all emphasis added). In other words:

While preventive rules are sometimes appro­
priate remedial measures, there must be 
congruence between the means used and the 
ends to be achieved. The appropriateness of 
remedial measures must be considered in 
light of the [degree of] evil presented. Strong 
measures appropriate to address one harm 
may be an unwarranted response to another, 
lesser one.

Id. at 530 (all emphasis added).

This standard restrains Congress from unconsti­
tutionally defining the substance of the Fourteenth 
and Fifteenth Amendments instead of enforcing 
them.



9

II. BOTH KATZENBACH AND BOERNE ES­
TABLISHED THE CONGRUENCY AND 
PROPORTIONALITY STANDARD OF RE­
VIEW.
A. Katzenbach Ruled That What Is “Ap­

propriate” And “Reasonable” Remedial 
Legislation Depends Upon The Nature 
Of The Constitutional Violation To Be 
Remedied And The Means Adopted To 
Do So.

In Katzenbach, this Court stated that “[a]s 
against the reserved powers of the States, Congress 
may use any rational means to effectuate the consti­
tutional prohibition of racial discrimination in vot­
ing.” Katzenbach, 383 U.S. at 324 (emphasis added). 
Katzenbach then cited McCulloch v. Maryland, 17 
U.S. (4 Wheat.) 316 (1819), a case construing whether 
Congress had the substantive power, under the Nec­
essary and Proper Clause of Article I, to establish a 
national bank:

“Let the end be legitimate, let it be within 
the scope of the constitution, and all means 
which are appropriate, which are adapted to 
that end, which are not prohibited, but con­
sistent with the letter and spirit of the consti­
tution, are constitutional.”

Id. (quoting McCulloch, 17 U.S. at 421) (all emphasis 
added).

Katzenbach also cited to Ex Parte Virginia, 100 
U.S. (10 Otto) 339, 340, 344 (1879), which involved



10

enforcement of the Thirteenth and Fourteenth Amend­
ments, and which prohibited judges from inten­
tionally and discriminatorily disqualifying jurors on 
account of their race and providing penalties for doing 
so.6 Katzenbach, 383 U.S. at 327. In Katzenbach, this 
Court observed that “the Court [in Ex Parte Virginia] 
. . . echoed [McCulloch’s] language in describing each 
of the Civil War Amendments.” Id. at 327 (emphasis 
added). Katzenbach then observed that, with respect 
to all Civil War Amendments:

“Whatever legislation is appropriate, that is 
adapted to carry out the objects the amend­
ments have in view, . . .  if not prohibited, is 
brought within the domain of Congressional 
power.”

Id. (quoting Ex Parte Virginia, 100 U.S. at 345-46). 
Thus, Ex Parte Virginia, like McCulloch, required 
that enforcement of any of the Civil War Amendments 
must be “appropriate,” “adapted to carry out the ob­
jects” of the constitutional prohibition it enforces, and 
not “prohibited” by other constitutional considera­
tions.

The consistent lesson of Katzenbach, McCulloch, 
and Ex Parte Virginia, is that what is “rational,” 
“appropriate,” legislation, “not otherwise prohibited,” 
depends upon the fit between the constitutional harm 
targeted and the means adopted to remedy it.

This was a direct prohibition and penalty, not a prophylac­
tic statute.



11

B. Katzenbach Established A Congruency 
And Proportionality Standard Of Re­
view Without Expressly So Stating.

The Attorney General seized upon the phrase 
“Congress may use any rational means to effectuate 
the constitutional prohibition of racial discrimina­
tion,” Katzenbach, 383 U.S. at 324, to justify a “defer­
ential standard” of review of Fifteenth Amendment 
enforcement legislation. Shelby County, 679 F.3d 
at 859 (“the attorney general insists that congress 
may use ‘any rational means’ to enforce the Fifteenth 
Amendment”). But the Attorney General ignored 
Katzenbach’s next sentence: “We turn now to a more 
detailed description of the standards which govern 
our review of the Act.” Katzenbach, 383 U.S. at 324 
(emphasis added).

This Court then detailed the egregious record of 
an unremitting, widespread pattern and practice of 
ingenious defiance of the Constitution, impervious to 
ordinary remedies, that it believed justified the ex­
traordinary resort to Section 5 remedies. Katzenbach 
ruled that Section 5 was, under those circumstances, 
a “rational” response. Id. at 335 (“States covered by 
the Act resorted to the extraordinary stratagem of 
contriving new rules of various kinds for the sole 
purpose of perpetuating voting discrimination in the 
face of adverse federal court decrees.”) (emphases 
added).



12

The “extraordinary stratagems” with which 
Katzenbach was confronted, and that were docu­
mented by Congress, consisted of widespread, persis­
tent, intentionally discriminatory voting practices 
that prevented African-Americans from register­
ing and voting, and which were not remediable by 
other, less drastic means. For example, more than 
half a dozen States “enacted tests . . . specifically 
designed to prevent [African-Americans] from voting.” 
Katzenbach, 383 U.S. at 310. “At the same time, 
alternate tests were prescribed . . .  to assure that 
white illiterates were not deprived of the franchise, 
[which] included grandfather clauses, property quali­
fications, ‘good character’ tests, and the requirement 
that registrants ‘understand’ or ‘interpret’ certain 
matters.” Id. at 311. Worse still, these tests were 
discriminatorily administered; white voters were 
“given easy versions, . . . received extensive help from 
voting officials, and [were] registered despite serious 
errors in their answers,” while African-Americans 
were “required to pass difficult versions . . . without 
any outside assistance and without the slightest 
error.” Id. at 312.

Congress had originally addressed this pattern of 
intentional voting discrimination by passing laws to 
“facilitate] case-by-case litigation” and the Supreme 
Court responded by “striking down [unconstitutional] 
discriminatory voting tests and devices in case after 
case.” Id. at 313. But widespread voting discrim­
ination persisted. Thus, the Voting Rights Act of 
1965, particularly Section 5, which targeted facially



13

constitutional practices, was enacted to defeat these 
efforts to intentionally nullify the Fifteenth Amend­
ment that had “infected the electoral process in parts 
of our country for nearly a century.” Id. at 308.

Therefore, Katzenbach concluded that, “under the 
compulsion of these unique circumstances, Congress 
responded in a permissibly decisive manner [in enact­
ing Section 5].” Id. (emphasis added). Katzenbach 
held that the evidence before Congress -  persistent, 
pervasive, and intransigent State action intentionally 
discriminating against African-Americans to prevent 
them from registering and voting, impervious to less 
drastic remedies -  was sufficient to justify the ex­
traordinary prophylactic exercise of remedial powers 
contained in Section 5:

Two points emerge vividly from the volumi­
nous legislative history. . . . First: Congress 
felt itself confronted by an insidious and per­
vasive evil which had been perpetuated in 
certain parts of our country through the un­
remitting and ingenious defiance of the Con­
stitution. Second: Congress had concluded 
that the unsuccessful remedies which it had 
prescribed in the past would have to be re­
placed by sterner and more elaborate meas­
ures in order to satisfy the clear commands 
of the Fifteenth Amendment.

Id. at 309 (all emphases added). Far from employing 
the relaxed, deferential standard of review advocated 
by the Attorney General, Katzenbach recognized that 
Section 5 of the Voting Rights Act is “an uncommon



14

exercise of congressional power” and that only “excep­
tional conditions can justify legislative measures not 
otherwise appropriate.” Katzenbach, 383 U.S. at 334- 
35 (emphasis added).

Thus, Katzenbach held that the extraordinary 
and uncommon exercise of congressional power en­
gaged in by Congress in enacting Section 5’s prophy­
lactic provisions was “appropriate” and “rational” 
only because it was adopted to remedy a widespread 
pattern of insidious, pervasive, unremitting, and in­
genious defiance of the Constitution to deny African- 
Americans the right to register and to vote, which 
had defied previous lesser remedies.

In fact, consistent with the Supreme Court’s sub­
sequent decision in Boerne, the remedy approved by 
Katzenbach was congruent and proportionate to the 
nature and scope of the unremitting defiance of the 
Constitution presented to Congress and that it sought 
to remedy as set out in Boerne. Boerne, 521 U.S. at 
519-20, 524-26. Therefore, Katzenbach, without ex­
pressly so stating, applied the congruency and pro­
portionality standard that this Court would later 
articulate more specifically in Boerne.

C. Boerne Adopted Katzenbach's Fifteenth 
Amendment Analysis As The Model For 
Its Congruency And Proportionality Stan­
dard Of Review.

In Boerne, this Court, quoting Katzenbach, ruled 
that “ ‘the constitutional propriety of [legislation



15

adopted under the Enforcement Clause] must be 
judged with reference to the historical experience it 
reflects.” ’ Id. at 525 (quoting Katzenbach, 383 U.S. at 
308). Indeed, Boerne noted that Katzenbach approved 
the severe and intrusive remedies of Section 
5 only because they were necessary to ‘“ banish the 
blight of racial discrimination in voting which has 
infected the electoral process in parts of our country 
for nearly a century.’ ” Id. (quoting Katzenbach, 383 
U.S. at 308). Referring to Katzenbach, this Court 
emphasized that “[t]he new unprecedented remedies 
were deemed necessary given the ineffectiveness of 
the existing voting rights law. . . .” Id. at 526 (empha­
sis added).

Far from announcing a new standard of review 
for exercising remedial, prophylactic enforcement 
powers under the Fourteenth Amendment, Boerne re­
lied heavily on Katzenbach to demonstrate the consti­
tutional predicate necessary for a congruent and 
proportionate prophylactic remedy under all the Civil 
War Amendments. In fact, Boerne cited Katzenbach 
no less than eleven times to support its congruence 
and proportionality standard of review. Id. at 518, 
519, 524, 525, 526, 530, 533. In Boerne, this Court, 
echoing Katzenbach, ruled that “there must be a con­
gruence and proportionality between the injury to be 
prevented or remedied and the means adapted to that 
end.” Boerne, 521 U.S. at 519. In other words, only 
congruent and proportionate remedial legislation is 
“rational” and “appropriate.”



16

Therefore, it was only because Congress was 
confronted with egregious, widespread, pervasive, un­
constitutional scheming to prevent African-Americans 
from registering or voting in spite of lesser remedies 
that Katzenbach ruled that Section 5’s exceptional, 
prophylactic remedy was “appropriate” legislation 
that adopted a “rational means” of addressing those 
extraordinary discriminatory practices. Thus, Section 
5 was, when adopted in 1965, congruent and propor­
tionate to the extreme constitutional violations tar­
geted by Congress.

--------------- « ----------------

CONCLUSION
For the reasons set out in the Petition, and for 

the reason elaborated here, this Court should grant 
the Petition.

Dated this 23rd day of August, 2012.

Respectfully submitted,
J. Scott Detamore

M ountain States Legal Foundation
2596 South Lewis Way
Lakewood, Colorado 80227
Tel. (303) 292-2021
detamore@mountainstateslegal.com
Attorney for Amicus Curiae

Mountain States Legal Foundation

mailto:detamore@mountainstateslegal.com