Shelby County v. Holder Brief Amici Curiae

    No. 12-96

In  T he

Supreme Court of tlje ®mteb States;

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

v.

E r ic  H. H o l d e r , J r ., A t t o r n e y  G e n e r a l , et  a l .,
Respondents.

On Writ of Certiorari 
to the United States Court of Appeals 
for the District of Columbia Circuit

BRIEF OF
HISTORIANS AND SOCIAL SCIENTISTS 

AS AMICI CURIAE 
IN SUPPORT OF RESPONDENTS

Derek  T. Ho 
Counsel of Record 

David L. Schwarz 
Kellogg, Huber , Hansen , 

Todd , Evans & Figel, 
P.L.L.C.

1615 M Street, N.W.
Suite 400
Washington, D.C. 20036 
(202) 326-7900

February 1, 2013 (dho@khhte.com)

mailto:dho@khhte.com


TABLE OF CONTENTS
Page

TABLE OF AUTHORITIES......................................... iii
INTEREST OF AMICI CURIAE................................... 1
INTRODUCTION............................................................ 2
SUMMARY OF ARGUMENT........................................4
ARGUMENT..................................................................... 5

I. The VRA Has Provided and Remains 
a Critical Tool in Preventing a Wide 
Array of Minority Vote-Suppression 
Tactics in Covered Jurisdictions...................... 5
A. In Enacting the VRA in 1965,

Congress Was Confronted with a 
History of Extensive Vote-Dilution 
Tactics............................................................. 5

B. VRA § 5 Has Successfully Curtailed
Both Vote-Suppression and Vote- 
Dilution Tactics.............................................. 8

C. The Legislative History of the
VRA’s Reauthorizations Evidences 
Congress’s Intent To Prevent Both 
Vote-Suppression and Vote-Dilution 
Tactics........................................................... 15
1. The 1970 Reauthorization.................... 15
2. The 1975 Reauthorization..................  16
3. The 1982 Reauthorization..................  17

D. Section 5 Continues To Be Critical
To Ensuring Racial Equality at the 
Ballot Box....................................................  17



II. The Geographical Coverage Provision 
Always Has Covered States with Per­
sistent and Widespread A buses..................... 22
A. The VRA’s Coverage Provision Has

Never Achieved 100% Precision................23
1. The Development of the Original

Coverage Provision................................23
2. The 1965 Coverage Provision Did

Not Achieve a Perfect F it..................... 25
3. Congress’s Reauthorizations of

the Coverage Provision........................ 29
B. The Current VRA Coverage Provi­

sion Is Consistent with the Stan­
dard Adopted by Congress and 
Upheld by This Court................................. 32

CONCLUSION............................................................... 35
APPENDIX

ii



Ill

TABLE OF AUTHORITIES
Page

CASES
Alaska u. United States, No. 66-101 (D.D.C.

Aug. 17, 1966)......................................................28-29
Allen v. State Bd. of Elections, 393 U.S. 544

(1969).................................................................. 13, 14
Apache Cnty. v. United States, 256 F. Supp.

903 (D.D.C. 1966)...................................................  29
Beer v. United States, 425 U.S. 130 (1976)..............  14
Brown v. Board of Comm’rs of the City of 

Chattanooga, No. 87-388 (E.D. Tenn. Jan.
11, 1990)...................................................................  27

City of Rome v. United States, 446 U.S. 156
(1980).................................................................. 30, 35

County Council of Sumter Cnty. v. United
States, 596 F. Supp. 35 (D.D.C. 1984)................  12

Davis v. Schnell, 81 F. Supp. 872 (S.D. Ala.),
aff’d, 336 U.S. 933 (1949)...............................   6

Elmore County v. United States, No. 66-820
(D.D.C. Sept. 22, 1966)..........................................  28

Garza v. Los Angeles Cnty., Nos. 88-5143 &
88-5435 (C.D. Cal. Apr. 25, 1991)........................  31

Georgia v. United States, 411 U.S. 526 (1973)......... 14
Gomillion v. Lightfoot, 364 U.S. 339 (1960)................. 7
Jeffers v. Clinton, 740 F. Supp. 585 (E.D. Ark.

1990)..........................................................................  26
League of United Latin Am. Citizens v. Perry,

548 U.S. 399 (2006) 26



IV

McMillan v. Escambia Cnty., No. 77-0432
(N.D. Fla. Dec. 3, 1979).........................................  27

NAACP v. Gadsden Cnty. Sch. Bd., 589 F.
Supp. 953 (N.D. Fla. 1984).................................... 27

Northwest Austin Mun. Util. Dist. No. One v.
Holder, 557 U.S. 193 (2009).................................. 32

Perkins v. City of West Helena, 675 F.2d 201
(8th Cir.), a ff’d, 459 U.S. 801 (1982)..................  26

Perkins v. Matthews, 400 U.S. 379 (1971)..........14, 15
Presley v. Etowah Cnty. Comm’n, 502 U.S. 491

(1992)...................................................   14
Smith v. Allwright, 321 U.S. 649 (1944)...................... 6
South Carolina u. Katzenbach, 383 U.S. 301

(1966)...............................................23, 24, 25, 30, 35
White v. Regester, 412 U.S. 755 (1973)...................... 26

CONSTITUTION, STATUTES, AND RULES 
U.S. Const.:

Amend. X IV .........................................................3, 35
Amend. XV ...........................................................3, 35

Act of Aug. 6, 1975, Pub. L. No. 94-73, 89 Stat.
400.............................................................................  30
§§ 201-202, 89 Stat. 400-01.................................... 30
§ 203, 89 Stat. 401................................................... 30

Civil Rights Act of 1957, Pub. L. No. 85-315,
71 Stat. 634..................................................................7

Voting Rights Act Amendments of 1970, Pub.
L. No. 91-285, § 3, 84 Stat. 314, 315 29



V

Voting Rights Act Amendments of 1982, Pub.
L. No. 97-205, § 2, 96 Stat. 131, 131.............. 31-32

Voting Rights Act of 1965, Pub. L. No. 89-110,
79 Stat. 437 (codified as amended at 42 
U.S.C. § 1973 et seq. ) ...................................... passim

§ 3(c), 79 Stat. 437..................................................  28
§ 4(a), 79 Stat. 438..................................................  28
§ 4(b), 79 Stat. 438..................................................  25

§ 2, 42 U.S.C. § 1973....................................4, 10, 18,
19, 21, 33, 34

§ 4, 42 U.S.C. § 1973b...............................................3
§ 4(a), 42 U.S.C. § 1973b(a)....................................30
§ 4(b), 42 U.S.C. § 1973b(b)....................................30
§ 4(c), 42 U.S.C. § 1973b(c).................................... 24
§ 4(f), 42 U.S.C. § 1973b(f).................................... 30
§ 5, 42 U.S.C. § 1973c.......................1, 2, 3, 4, 8, 10,

13, 14, 15, 16, 17, 18, 
19, 21, 22, 30, 32, 33, 35

§ 14(c)(1), 42 U.S.C. § 1973/(c)(1) (1964)............  13
Sup. Ct. R. 37 .6............................................................... 1

LEGISLATIVE MATERIALS
Extension of the Voting Rights Act: Hearings 

Before the Subcomm. on Civil and Constitu­
tional Rights of the H. Comm, on the Judi­
ciary, 94th Cong. (1975)...................................30, 31



VI

Extension o f the Voting Rights Act: Hearings 
Before the Subcomm. on Civil and Constitu­
tional Rights of the H. Comm, on the Judi­
ciary, 97th Cong. (1981)........................................ 31

H.R. Rep. No. 89-439 (1965), reprinted in 1965
U.S.C.C.A.N. 2437......................................24, 27-28

H.R. Rep. No. 91-397 (1969), reprinted in 1970
U.S.C.C.A.N. 3277.............................................16, 29

H.R. Rep. No. 94-196 (1975).................................17, 27,
29, 30, 31, 34

H.R. Rep. No. 97-227 (1981).....................11, 17, 31, 32
H.R. Rep. No. 109-478 (2006).....................................  21
Office of the Clerk, U.S. House of Representa­

tives, Final Vote Results for Roll Call 374, 
at http ://clerk. house. go v/e vs/2006/roll3 74.
xml...................................................................  c

S. Rep. No. 89-162, pt. 3 (1965), reprinted in
1965 U.S.C.C.A.N. 2508........................................  21

S. Rep. No. 94-295 (1975)...........................................  3C
S. Rep. No. 97-417 (1982)............................................ 32

To Examine the Impact and Effectiveness of 
the Voting Rights Act: Hearing Before the 
Subcomm. on the Constitution of the H. 
Comm, on the Judiciary, 109th Cong 
(2005)...........................................................................

U.S. Senate, Roll Call Vote for H.R. 9, 109th 
Cong., at http://www.senate.gov/legislative/ 
LIS/roll_callJists/roll_call_vote_cfm.cfm? 
congress=109&session=2&vote=00212...................3

http://www.senate.gov/legislative/


V ll

Voting Rights: Hearings on H.R. 6400 Before 
Subcomm. No. 5 of the H. Comm, on the
Judiciary, 89th Cong. (1965).................. 22, 23, 24,

25, 26, 27, 28
Voting Rights: Hearings on S. 1564 Before the 

S. Comm, on the Judiciary, 89th Cong.
(1965)...............................................24, 25, 26, 27, 28

1 Voting Rights Act: Section 5 of the Act -  
History, Scope, and Purpose: Hearing
Before the Subcomm. on the Constitution of 
the H. Comm, on the Judiciary, 109th 
Cong. (2005)............................................................. 24

Voting Rights Act: The Continuing Need for
Section 5: Hearing Before the Subcomm. on 
the Constitution of the H. Comm, on the 
Judiciary, 109th Cong. (2005).........................20, 21

Voting Rights Act Extension: Hearings Before 
Subcomm. No. 5 of the H. Comm, on the 
Judiciary, 91st Cong. (1969)..................... 15-16, 29

ADMINISTRATIVE MATERIALS
U.S. Dep’t of Justice, Objection Letter to

Baldwin County, Georgia (Sept. 19, 1983)......... 12
U.S. Dep’t of Justice, Objection Letter to

Barnwell City Council, Barnwell County,
South Carolina (Mar. 26, 1984)...........................  13

U.S. Dep’t of Justice, Objection Letter to
Hayneville, Lowndes County, Alabama
(Dec. 29, 1978)........................... ... .........................  11

U.S. Dep’t of Justice, Objection Letter to
Jefferson, Chesterfield County, South Caro­
lina (Mar. 26, 1984) 13



V l l l

U.S. Dep’t of Justice, Objection Letter to
Jonesboro, Clayton County, Georgia (Feb.
4, 1972).................................    13

U.S. Dep’t of Justice, Objection Letter to
Lancaster County, South Carolina (Oct. 1,
1974)..........................................................................  12

U.S. Dep’t of Justice, Objection Letter to
Lancaster County School District, South 
Carolina (Apr. 27, 1984)........................................  13

U.S. Dep’t of Justice, Objection Letter to
Reidsville, Rockingham County, North 
Carolina (Aug. 3, 1979).........................................  13

U.S. Dep’t of Justice, Objection Letter to State
of North Carolina (Nov. 30, 1981)........................ 11

U.S. Dep’t of Justice, Objection Letter to State
of North Carolina (Dec. 7, 1981)...................... 11-12

U.S. Dep’t of Justice, Objection Letter to State
of North Carolina (Jan. 20, 1982)........................ 11

U.S. Dep’t of Justice, Objection Letter to
Sumter County, South Carolina (Dec. 3,
1976)..........................................................................  12

U.S. Dep’t of Justice, Objection Letter to
Twiggs County, Georgia (Aug. 7, 1972)..............  11

OTHER MATERIALS
Brief of the Plaintiff, South Carolina v. 

Katzenbach, 383 U.S. 301 (1966) (No. 22, 
Orig.) (filed Dec. 20, 1965), 1965 WL
130083......................................................................  22

Chandler Davidson (ed.), Minority Vote Dilu­
tion (1984).................................................................9



IX

Samuel Issacharoff, Pamela S. Karlan & 
Richard H. Pildes, The Law of Democracy:
Legal Structure of the Political Process (3d 
ed. 2007)...................................................................... 2

Pamela S. Karlan, Section 5 Squared: Congres­
sional Power to Extend and Amend the Vot­
ing Rights Act, 44 Hous. L. Rev. 1 (2007).............2

Alexander Keyssar, The Right to Vote: The
Contested History of Democracy in the United 
States (2009 rev. ed .)....................................6, 7, 8, 9

J. Morgan Kousser, Colorblind Injustice: 
Minority Voting Rights and the Undoing of 
the Second Reconstruction (1999)........................ 5

Lawyers’ Comm, for Civil Rights Under Law,
Nat’l Comm’n on the Voting Rights Act, 
Protecting Minority Voters: The Voting
Rights Act at Work 1982-2005 (Feb. 2006), 
available at http://www.lawyerscommittee. 
org/admin/voting_rights/documents/files/00 
23.pdf........................................................................21

Peyton McCrary:

Bringing Equality to Power: How the
Federal Courts Transformed the Electoral
Structure o f Southern Politics, 1960-1990,
5 U. Pa. J. Const. L. 665 (2003)...........................  20
Racially Polarized Voting in the South: 
Quantitative Evidence from the Courtroom,
14 Soc. Sci. Hist. 507 (1990)....................................9

Colin D. Moore, Extensions of the Voting 
Rights Act, in The Voting Rights Act: 
Securing the Ballot 95 (Richard M. Valelly 
ed., 2006).....................................................................3

http://www.lawyerscommittee


X

Quiet Revolution in the South: The Impact of 
the Voting Rights Act, 1965-1990 (Chandler 
Davidson & Bernard Grofman eds., 1994):
Ch. 1 (Chandler Davidson, The Recent 
Evolution of Voting Rights Law Affecting 
Racial and Language Minorities)....................9, 13
Ch. 2 (Peyton McCrary et al., Alabama)  5, 6, 7, 8,

10, 12, 18, 19
Ch. 7 (Orville Vernon Burton et al., South 
Carolina)..................................................................  12
Ch. 11 (Lisa Handley & Bernard Grofman,
The Impact of the Voting Rights Act on 
Minority Representation: Black Office­
holding in Southern State Legislatures and
Congressional Delegations)................................... 19

Remarks in the Capitol Rotunda at the 
Signing of the Voting Rights Act, 2 Pub. 
Papers 841 (Aug. 6, 1965)..................................... 2



INTEREST OF AMICI CURIAE1
Amici are U.S. historians and other scholars, some 

of whom have devoted their entire careers to the 
study of the American South and, in particular, to 
racial and ethnic minorities’ long struggle for equal 
civil rights in that region.2 Collectively, amici have 
written more than 50 books and nearly 200 articles 
or book chapters on those topics. All amici agree 
that the Voting Rights Act of 1965 (“VRA”) is the 
most effective and important civil rights legislation 
in U.S. history. They also believe that the history 
of the VRA demonstrates that many of Congress’s 
objectives in enacting and reauthorizing the VRA 
remain unfinished. Amici believe that their exper­
tise will aid the Court’s understanding of the indis­
pensable role that the Act, and in particular § 5, has 
played in promoting and continuing to ensure equal 
rights in the American South.

In particular, amici wish to draw the Court’s atten­
tion to two important historical considerations that 
are relevant to this case:

1. Section 5 of the VRA was designed, from its 
inception, to prevent not just laws that denied 
racial minorities access to the ballot, but also 
other discriminatory laws and policies that

1 Pursuant to Supreme Court Rule 37.6, counsel for amici 
represent that they authored this brief in its entirety and that 
none of the parties or their counsel made a monetary contribu­
tion intended to fund the preparation or submission of this 
brief. The Rockefeller Brothers Fund provided a grant to one 
amicus for research intended to be used in the preparation of 
this brief. Both petitioner and respondents have consented to 
the filing of this brief, and letters reflecting their blanket consent 
to the filing of amicus briefs are on file with the Clerk.

A list of the amici and their biographical information are 
included as Appendix A to this brief.



2

sought to diminish the effectiveness of minority 
voting strength. Congress’s focus on these 
“second-generation” tactics in the 2006 reau­
thorization was thus fully consistent with the 
original purposes of the VRA.

2. The VRA’s original geographical coverage 
provision targeted the states and localities 
that, prior to 1965, had the most persistent 
and widespread voting rights abuses. Congress 
recognized that the covered jurisdictions were 
both over- and under-inclusive, but this Court 
has never demanded perfect precision. The 
law’s current coverage provision is substantially 
as precise as those the Court has upheld in the 
past.

INTRODUCTION
The VRA has been widely recognized as the most 

important civil rights act in the nation’s history. 
Professor Pamela S. Karlan, co-author of the leading 
election-law text, The Law of Democracy, described 
the Act as “the cornerstone of the ‘Second Recon­
struction.’”3 Her view of the Act’s accomplishments 
echoed the hopes of President Lyndon B. Johnson at 
the signing ceremony of the Act in 1965, when he 
characterized it as “one of the most monumental laws 
in the entire history of American freedom.”4

VRA § 5, which originally was scheduled to expire 
in 1970, has been renewed by Congress four times. 
The 2006 renewal was endorsed by an overwhelming

3 Pamela S. Karlan, Section 5 Squared: Congressional Power 
to Extend and Amend the Voting Rights Act, 44 Hous. L. Rev. 1, 
2 (2007).

4 Remarks in the Capitol Rotunda at the Signing of the 
Voting Rights Act, 2 Pub. Papers 841 (Aug. 6, 1965), quoted in 
Karlan, 44 Houston L. Rev. at 2.



3

majority of both houses of Congress. The vote in 
the Senate was 98 to 0, and included Senators from 
every covered State. Moreover, the original enact­
ment in 1965 and each of the reauthorizations of § 5 
in 1970, 1975, and 1982 have been overwhelmingly 
bipartisan.5 In light of the polarization between the 
two parties that prevails in our day, we find the 
overwhelming bipartisan support for § 5’s reauthori­
zation a significant fact.

As we understand the issues before the Court, 
it must decide whether there is still evidence that 
racial discrimination affecting voting is a problem 
great enough in magnitude to justify the preclear­
ance requirement and whether the coverage formula 
set forth in § 4 of the Act appropriately targets the 
jurisdictions where racial discrimination affecting 
voting is concentrated. We believe that the historical 
evidence in this amicus brief will assist the Court in 
resolving the issues before it.

It is the consensus view of the signatories to this 
brief — historians and social scientists, much of 
whose work has focused on the VRA and barriers to 
voting encountered by racial minorities, most partic­
ularly blacks, Latinos, Native Americans, and Asians 
— that § 5 remains a necessary federal weapon in the 
long battle to uphold the promise of the Fourteenth 
and Fifteenth Amendments, given the history of 
racial discrimination affecting voting, particularly in 
covered jurisdictions.

5 For 1970, 1975, and 1982, see Colin D. Moore, Extensions 
of the Voting Rights Act, in The Voting Rights Act: Securing 
the Ballot 95, 101 (Richard M. Valelly ed., 2006); for 2006, 
see http://clerk.house.gov/evs/2006/roll374.xml and http://www. 
senate.gov/legislative/LIS/roll_calLlists/roll_call_vote_cfm.cfm? 
congress=109&session=2&vote=00212.

http://clerk.house.gov/evs/2006/roll374.xml
http://www


4

SUMMARY OF ARGUMENT
From its inception, VRA § 5 has been intended -  

and applied in practice -  to prevent changes in 
voting laws that have the potential to undermine 
minority voters’ effective use of the electoral fran­
chise. In conjunction with § 2 of the Act, § 5 has 
proven a critical tool in preventing covered jurisdic­
tions from backsliding on their duty to protect minor­
ity voting rights, and has helped minority voters in 
covered jurisdictions press white majorities to gain 
the full benefit of the electoral franchise. Despite 
these accomplishments, the persistence of racially 
polarized voting and vote-dilution tactics in covered 
jurisdictions demonstrate the continuing need for the 
robust protections afforded by § 5.

The coverage provision is not and never has been 
designed to capture every last place in America 
where racial discrimination in voting exists. Rather, 
from 1965 through today, the provision has excluded 
jurisdictions with significant voting discrimination 
problems. And, in some (but rare) cases, it has 
included jurisdictions with benign records. Perfec­
tion in this area cannot reasonably be expected. 
However, the provision adopted by Congress captures 
the jurisdictions with the most significant history of 
voting discrimination using the best data available.



5

ARGUMENT
I. The VRA Has Provided and Remains a 

Critical Tool in Preventing a Wide Array 
of Minority Vote-Suppression Tactics in 
Covered Jurisdictions

The VRA was never limited to preventing racial 
minorities from being literally denied access to the 
ballot. Rather, Congress always recognized the 
multiplicity of devices for denying racial minorities 
the full benefit of the electoral franchise. The history 
leading up to the VRA’s passage, as well as the his­
tory of its enforcement, demonstrates that the VRA 
was always intended to prevent not only “first- 
generation” tactics that deny access to the vote, but 
also “second-generation” tactics that seek to dilute 
minority voting power or diminish the value of 
minorities’ votes.6

A. In Enacting the VRA in 1965, Congress 
Was Confronted with a History of Exten­
sive Vote-Dilution Tactics

Even before the VRA, Southern states had engaged 
in a wide range of tactics that sought not only to 
deny racial minorities ballot access but also to dimin­
ish the power of their vote. Alabama provides a good 
illustration of these purposefully discriminatory tac­
tics. In the decades before 1965, Alabama, like most 
states of the former Confederacy, protected the white 
monopoly on elective office primarily through oner­
ous voter-registration requirements that disenfran­
chised the vast majority of the State’s black citizens.7

6 See J. Morgan Kousser, Colorblind Injustice: Minority
Voting Rights and the Undoing of the Second Reconstruction 16 
(1999).

7 See Peyton McCrary et al., Alabama (“McCrary, Alabama”),
in Quiet Revolution in the South: The Impact of the Voting



6

At Alabama’s 1900 state constitutional convention, 
the delegates “enacted a cumulative poll tax, a liter­
acy test, a long residency requirement, and required 
gainful employment for the past year” as conditions 
to registration. McCrary, Alabama at 44. And the 
lucky few black voters who were able to register were 
prevented from influencing the electoral process by 
the “white primary” -  Alabama’s “insurance policy” 
against black voting rights. Id.

After this Court invalidated the white primary in 
Smith v. Allwright, 321 U.S. 649 (1944), removing 
“probably the most efficacious method of denying the 
vote to African Americans”8 from the South’s “multi­
layered system of discriminatory election laws,” 
McCrary, Alabama at 45, large numbers of black cit­
izens in the Alabama cities of Mobile, Birmingham, 
and Tuskegee, see id., were among the “tens of thou­
sands [who] began to line up to register for Demo­
cratic primaries throughout the South,” Keyssar at 
199. Determined not to cede any ground to black 
voters, Alabama’s governor and legislature quickly 
amended its constitution to give local voter registrars 
broad discretion to disqualify voters, which was in­
tended to (and did) disenfranchise black citizens. See 
McCrary, Alabama at 45. When this law was struck 
down in 1949, see Davis v. Schnell, 81 F. Supp. 872 
(S.D. Ala.), a ff’d, 336 U.S. 933 (1949) (per curiam), 
Alabama passed a constitutional amendment requir­
ing its Supreme Court to develop a registration 
application that was intended to be so complicated 
that blacks, who generally had less education

Rights Act, 1965-1990, ch. 2, at 38, 43-45 (Chandler Davidson & 
Bernard Grofman eds., 1994) (“Quiei Revolution”).

8 Alexander Keyssar, The Right to Vote: The Contested History 
of Democracy in the United States 199 (2009 rev. ed.) (“Keyssar”).



7

than whites, would be unable to understand it. See 
McCrary, Alabama at 45.

Sensing sweeping federal intervention on the hori­
zon, Alabama politicians took measures to entrench 
the political power of the State’s white citizens by 
resurrecting vote-dilution laws that had been aban­
doned decades earlier in favor of wholesale disen­
franchisement. See id. at 42-44. In one particularly 
notorious episode in the late 1950s, the Alabama leg­
islature purposefully re-drew the municipal bounda­
ries of Tuskegee to de-annex nearly all of the city’s 
black neighborhoods because “black registrants were 
sufficiently numerous that they posed a threat to 
white political control of the city.” Keyssar at 233; 
see McCrary, Alabama at 45.9

Alabama also passed laws to prevent black citizens 
from pooling their votes to elect a candidate of their 
choice in at-large municipal elections. The State’s 
1951 law prevented such “single-shot voting” strate­
gies by requiring all voters to cast ballots for a full 
slate of the offices to be filled.10 See McCrary, 
Alabama at 46. The legislature amended the law 
in 1961 to require each candidate to run for a sepa­
rate numbered place or post. Because voters were 
required to cast a ballot for each numbered post,

9 Though “racial districting had been a common form of 
political warfare throughout the South, particularly in the 
years before wholesale disenfranchisement,” Keyssar at 233, 
the unusually flagrant “Tuskegee Gerrymander,” McCrary, 
Alabama at 45, was immediately challenged under the Civil 
Rights Act of 1957 and eventually invalidated by this Court in 
Gomillion v. Lightfoot, 364 U.S. 339 (1960).

10 Even when voting patterns are racially polarized, in 
a simple at-large system a cohesive minority group can use 
single-shot voting to elect one representative if several offices 
are to be filled.



8

black citizens could no longer band together to elect a 
candidate of their choice. One Alabama Democratic 
Party leader explained that these laws were neces­
sary because of the “ ‘increasing Federal pressure’ . . . 
‘to register negroes en masse.’ ” Id.

“By the time the [VRA] was adopted, Alabama had 
perfected a system of local and state laws that, for 
most jurisdictions, required at-large elections, num­
bered places, and a majority vote, making it virtually 
impossible for blacks to elect candidates of their 
choice without substantial cross-over voting.” Id. at 
47.

B. VRA § 5 Has Successfully Curtailed Both 
Vote-Suppression and Vote-Dilution Tac­
tics

1. In his comprehensive history of voting rights 
in America, Alexander Keyssar explains that the 
VRA “did not suddenly put an end to racial discrimi­
nation in [Sjouthern politics. To a considerable 
degree, the locus of conflict shifted from the right 
to vote to the value of the vote.” Keyssar at 212 
(emphases added). Southern responses to federal 
intervention in voter registration, like Alabama’s 
Tuskegee Gerrymander, proved to federal officials 
and Southern blacks alike that, “ [i]f the federal 
government insisted on black enfranchisement, 
conservative Southerners would attempt to vitiate its 
consequences by altering the structures of represen­
tation.” Id. at 233.

To do this, white politicians in covered jurisdic­
tions intentionally exploited a well-known fact about 
Southern politics: given a choice, black voters will
generally vote for certain candidates, while white 
voters will generally prefer different candidates, even 
within the same party. The practical effect of this



9

“racially polarized” voting pattern is that the candi­
date preferred by black voters will not be elected in 
jurisdictions where white voters are the majority if 
white voters vote cohesively as a bloc. Thus, white 
politicians could frustrate black voters’ efforts to 
elect sympathetic representatives simply by configur­
ing electoral structures to ensure that whites were a 
majority.11

Southern whites had many tactics at their disposal 
to take advantage of racially polarized voting. “In 
the numerous cities with white majorities but sizable 
black populations, whites could maintain a monopoly 
on political power by having all city council members 
elected ‘at large’ rather than from single-member 
districts” or by “insisting on majority runoffs rather 
than plurality victories.” Id. at 234. These tactics 
were especially discriminatory when accompanied by 
“enhancing devices,” such as numbered-place and 
majority-vote requirements.12 Southern jurisdictions 
also annexed and de-annexed territory to change the 
racial composition of the electorate, or racially gerry­
mandered electoral districts either to “crack” black 
voters into different districts to prevent them from 
gaining a majority in any particular district or to 
“pack” black voters into a single electoral district 
to decrease the number of districts in which black 
voters had a majority. See id. at 233-34.

11 See Chandler Davidson, The Recent Evolution of Voting 
Rights Law Affecting Racial and Language Minorities (“David­
son, Recent Evolution”), in Quiet Revolution ch. 1, at 21, 22-24.

12 Chandler Davidson (ed.), Minority Vote Dilution 1, 4-5 
(1984); see Peyton McCrary, Racially Polarized Voting in the 
South: Quantitative Evidence from the Courtroom, 14 Soc. Sci. 
Hist. 507 (1990).



10

The seminal book on the effect of the VRA on mi­
nority political power in the South, Quiet Revolution 
in the South, collects a series of studies of voting 
patterns, electoral structures, and VRA enforcement 
activity in each of the Southern states covered by § 5. 
Consistent with an extensive body of research on 
the subject, the studies published in Quiet Revolution 
demonstrate that VRA § 2 and § 5 -  effectuated 
through Department of Justice (“DOJ”) objections to 
preclearance and § 2 litigation -  have worked in tan­
dem to defeat and deter second-generation barriers 
to minority groups’ effective exercise of the electoral 
franchise.

2. Alabama once again serves as a powerful 
example. Given Alabama’s pre-VRA history, it is un­
surprising that DOJ used its § 5 authority repeatedly 
to prevent municipalities from undermining minority 
representation. The first DOJ § 5 objection to voting- 
law changes intended to dilute the effectiveness of 
black votes in Alabama was interposed in 1971 to 
stop the legislature from requiring numbered-place 
voting in the City of Birmingham’s at-large elections, 
shortly after the City Council appointed a black 
attorney to a vacant seat. See McCrary, Alabama at 
47.

DOJ also interposed objections that prevented 11 
of the 16 attempts made by Alabama county commis­
sions to move from single-member-district to at-large 
electoral schemes during the period from 1965 to 
1985. See id. at 48. DOJ granted preclearance to 
the other five because the changes would not have a 
retrogressive effect on black voting power. See id.

In its report on the 1982 reauthorization bill, the 
House Judiciary Committee discussed two examples 
of DOJ objections to voting-law changes submitted by



11

Alabama jurisdictions, including a 1971 attempt 
by the Clark County Commission to switch from a 
single-member-district to an at-large system, and a 
1968 attempt by the town of Hayneville to incorpo­
rate itself with boundaries that made its electorate 
85% white even though Hayneville was in a county in 
which 77% of the residents were black. H.R. Rep. 
No. 97-227, at 18-19 (1981). DOJ denied preclear­
ance to the Clark County Commission. Id. It grant­
ed Hayneville preclearance only after the legislature 
annexed to Hayneville the predominantly black 
communities it had sought to exclude. Id.; U.S. Dep’t 
of Justice, Objection Letter to Hayneville, Lowndes 
County, Alabama (Dec. 29, 1978).

The history in other states is similar. For example, 
in 1972, DOJ objected to Twiggs County, Georgia’s 
attempt to change to at-large elections with numbered- 
post and majority-vote requirements for its county 
commission, because the move would dilute the 
voting power of African-Americans, who comprised a 
majority of the registered voters in one of the exist­
ing districts but a minority county wide.13 Similarly, 
DOJ objected to North Carolina’s constitutional 
amendment prohibiting the splitting of any county in 
legislative districting, on the grounds that it effec­
tively required multi-member districts and thus 
increased the likelihood of minority vote dilution due 
to the State’s pattern of racially polarized voting.14

13 U.S. Dep’t of Justice, Objection Letter to Twiggs County, 
Georgia (Aug. 7, 1972).

14 U.S. Dep’t of Justice, Objection Letter to State of North 
Carolina (Nov. 30, 1981) (identifying the change as retrogres­
sive); see also U.S. Dep’t of Justice, Objection Letter to State 
of North Carolina (Jan. 20, 1982) (state house); U.S. Dep’t of



12

DOJ also objected to changes from appointive to 
elective offices where the jurisdiction chose to use at- 
large elections. For example, it objected to the South 
Carolina legislature’s adoption of at-large elections 
for the county council of Sumter County to replace a 
system of gubernatorial appointments after the gov­
ernor began appointing blacks to the county’s govern­
ing body.15 It also objected to a similar change for 
the school board in a Georgia county on both purpose 
and retrogression grounds.16

Southern states also sought to impose obstacles 
to single-shot voting similar to the laws enacted in 
Alabama in 1961. See McCrary, Alabama at 46. 
As DOJ explained, minority voters’ ability to elect 
a candidate of their choice through single-shot voting 
is thwarted “if an otherwise at-large election to fill 
multiple identical offices is transformed into a num­
ber of separate election contests through the use of 
numbered and residency post requirements and the 
staggering of terms of office.”17 DOJ has consistently 
objected to these types of devices. For example, it did 
so in Clayton County, Georgia, when majority-vote 
and numbered-place requirements led to the defeat

Justice, Objection Letter to State of North Carolina (Dec. 7, 
1981) (state senate).

15 U.S. Dep’t of Justice, Objection Letter to Sumter County, 
South Carolina (Dec. 3, 1976); see also County Council of Sum­
ter Cnty. v. United States, 596 F. Supp. 35, 37-39 (D.D.C. 1984) 
(per curiam); Orville Vernon Burton et al., South Carolina, in 
Quiet Revolution ch. 7, at 191, 208-09.

16 U.S. Dep’t of Justice, Objection Letter to Baldwin County, 
Georgia (Sept. 19, 1983).

17 U.S. Dep’t of Justice, Objection Letter to Lancaster County, 
South Carolina (Oct. 1, 1974).



13

of a black incumbent,18 and when municipalities 
in North Carolina19 and South Carolina20 created 
staggered-term systems to engineer the defeat of 
black candidates.

3. As these examples illustrate, the VRA was 
not limited to ending “first-generation” ballot-denial 
tactics; it was intended and applied to stop “second- 
generation” forms of indirect, but no less intentional, 
vote discrimination. This Court also has recognized 
that the “right to vote” protected by § 5 is not limited 
to the literal right to cast a ballot, but broadly 
includes “ ‘all action necessary to make a vote effec­
tive.’ ” Allen v. State Bd. of Elections, 393 U.S. 544, 
566 (1969) (quoting 42 U.S.C. § 1973/(c)(1) (1964)). 
Giving effect to § 5’s broad scope, Allen enjoined 
enforcement of “a change from district to at-large 
voting for county supervisors,” noting that “ [t]he 
right to vote can be affected by a dilution of voting 
power as well as by an absolute prohibition on cast­
ing a ballot.” Id. at 569.

After Allen, the Court gave broad effect to its 
holding, denying preclearance to a wide variety of 
attempts by covered jurisdictions to change voting 
laws to undermine minority groups’ use of the fran­
chise. See Davidson, Recent Evolution at 32-33; see

18 U.S. Dep’t of Justice, Objection Letter to Jonesboro, Clay­
ton County, Georgia (Feb. 4, 1972).

19 U.S. Dep’t of Justice, Objection Letter to Reidsville, Rock­
ingham County, North Carolina (Aug. 3, 1979).

20 U.S. Dep’t of Justice, Objection Letter to Jefferson, Ches­
terfield County, South Carolina (Mar. 26, 1984); see also U.S. 
Dep’t of Justice, Objection Letter to Lancaster County School 
District, South Carolina (Apr. 27, 1984); U.S. Dep’t of Justice, 
Objection Letter to Barnwell City Council, Barnwell County, 
South Carolina (Mar. 26, 1984).



14

also Presley v. Etowah Cnty. Comm’n, 502 U.S. 491, 
502-03 (1992) (reviewing and summarizing Allen’s 
progeny). In 1971, the Court extended Allen to 
include a covered jurisdiction’s attempt to annex 
neighboring white communities while excluding 
minority populations and to change the location of 
polling places. See Perkins u. Matthews, 400 U.S. 
379, 390-91 (1971). The Perkins Court observed that, 
“ [i]n terms of dilution of voting power, there is no 
difference between a change from district to at-large 
election and an annexation that changes both the 
boundaries and ward lines of a city to include more 
voters.” Id. at 390.

Although litigants challenged the Allen Court’s 
expansive interpretation of § 5’s scope in later years, 
this Court repeatedly reaffirmed Allen’s holding that 
§ 5 prohibits second-generation vote-dilution tactics. 
See Georgia v. United States, 411 U.S. 526, 533 
(1973) (concluding that Congress’s decision to re­
authorize VRA and § 5 as written indicated “that 
Allen correctly interpreted the congressional design”). 
“In other words the purpose of § 5 has always been to 
insure that no voting-procedure changes would be 
made that would lead to a retrogression in the posi­
tion of racial minorities with respect to their effective 
exercise of the electoral franchise.” Beer v. United 
States, 425 U.S. 130, 141 (1976) (emphasis added). 
Thus, contrary to arguments advanced by petitioner’s 
amici,21 this Court has long recognized that defeating 
second-generation barriers to minorities’ voting 
rights is a central purpose of § 5.

21 See Landmark Legal Found. Br. 11-16.



15

C. The Legislative History of the VRA’s 
Reauthorizations Evidences Congress’s 
Intent To Prevent Both Vote-Suppression 
and Vote-Dilution Tactics

The legislative history accompanying the VRA’s 
1970, 1975, and 1982 reauthorizations confirms that 
Congress intended § 5 to apply expansively so as to 
prevent new forms of vote discrimination intended to 
diminish minority groups’ voting power and under­
mine their hard-won gains.

1. The 1970 Reauthorization. Congress approved 
of using § 5 to defeat vote-dilution tactics when it 
first reauthorized the VRA in 1970. In Perkins, this 
Court quoted at length from the remarks made by 
one member of Congress in 1969:

“When I voted for the Voting Rights Act of 
1965, I hoped that 5 years would be ample 
time. But resistance to progress has been 
more subtle and more effective than I thought 
possible. A whole arsenal of racist weapons 
has been perfected. Boundary lines have been 
gerrymandered, elections have been switched 
to an at-large basis, counties have been consol­
idated, elective offices have been abolished 
where blacks had a chance of winning, the 
appointment process has been substituted for 
the elective process, election officials have 
withheld the necessary information for voting 
or running for office, and both physical and 
economic intimidation have been employed.

Section 5 was intended to prevent the use of 
most of these devices.”

400 U.S. at 389 n.8 (quoting Voting Rights Act Exten­
sion: Hearings Before Subcomm. No. 5 of the H.



16

Comm, on the Judiciary, 91st Cong. 3-4 (1969) (“1969 
House Hr’gs”) (remarks of Rep. McCulloch)).

The House Judiciary Committee’s report also 
reflects concern about the “new, unlawful ways to 
diminish the Negroes’ franchise” as “Negro voter reg­
istration has increased under the Voting Rights Act.” 
H.R. Rep. No. 91-397, at 7 (1969), reprinted in 1970 
U.S.C.C.A.N. 3277, 3283. The Committee specifically 
cited evidence that covered jurisdictions had been 
“switching to at-large elections where negro voting 
strength is concentrated in particular election dis­
tricts and facilitating the consolidation of predomi­
nantly negro and predominantly white counties.” Id.

2. The 1975 Reauthorization. In 1975, Con­
gress expressly relied on evidence of DOJ’s use of § 5 
objections to challenge dilutive redistricting plans, 
see supra Point I.B.2, in finding that § 5 remained 
necessary:

As registration and voting of minority citizens 
increases, other measures may be resorted to 
which would dilute increasing minority voting 
strength. Such other measures may include 
switching to at-large elections, annexations of 
predominantly white areas, or the adoption of 
discriminatory redistricting plans. In fact, the 
Justice Department has recently entered ob­
jections, at the state and local level, to at-large 
requirements, . . . majority vote requirements,
. . . redistrictings, . . . multimember districts,
and annexations..........This past experience
ought not be ignored in terms of assessing the
future need for the Act......... [I]t is likewise
Section 5 which serves to insure that progress 
not be destroyed through new procedures and 
techniques.



17

H.R. Rep. No. 94-196, at 10-11 (1975) (citations omit­
ted).

3. The 1982 R eauthorization . In 1982, Con­
gress likewise cited numerous examples of second- 
generation tactics in covered jurisdictions as evi­
dence for the continuing need of § 5. See H.R. Rep. 
No. 97-227, at 17-20. Congress noted that, although 
non-covered jurisdictions also used electoral struc­
tures similar to those targeted in VRA enforcement 
actions, “in the covered jurisdictions, where there is 
severe racially polarized voting, they often dilute 
emerging minority political strength.” Id. at 18. Cit­
ing Allen, Congress reiterated that “ [t]he Congress 
and the courts have long recognized that protection 
of the franchise extends beyond mere prohibition of 
official actions designed to keep voters away from the 
polls, it also includes prohibition of state actions 
which so manipulate the elections process as to ren­
der votes meaningless.” Id. at 17.

In sum, Congress consistently has recognized -  in 
the original VRA and every reauthorization since -  
that the VRA serves not only to prevent actual denial 
of ballot access, but also to foreclose “second- 
generation” vote-dilution tactics that have been used 
to deprive racial minorities of the effective exercise of 
the franchise.

D. Section 5 Continues To Be Critical To 
Ensuring Racial Equality at the Ballot 
Box

The historical evidence demonstrates that § 5 
remains critical to ensuring racial minorities effec­
tive voting power.

1. To the extent unconstitutional voting-rights 
deprivations have diminished in covered jurisdic­
tions, that progress is directly attributable to vigor­



18

ous enforcement of VRA § 2 and § 5. Eliminating § 5 
would jeopardize that progress and threaten a return 
to the intentional vote-dilution tactics that Congress 
and DOJ have fought so hard to eliminate.

Taking Alabama again as the primary example, 
historical research demonstrates that both enforce­
ment of § 5 through DOJ objections and § 2 litigation 
have proven critical to the progress achieved since 
1965. When the VRA was enacted in 1965, black 
elected officeholders in the State “were restricted to 
communities in which blacks constituted a majority 
of the registered voters.” McCrary, Alabama at 54. 
Even five years after passage of the Act, little pro­
gress had been made; only two black officials had 
been elected in at-large elections in white-majority 
cities by 1970. Id. By 1989, black officials held office 
in Alabama in numbers roughly proportional to black 
voters’ representation in the State’s population. Id.

As to the cause of these considerable changes, 
McCrary and his colleagues found that, between 1970 
and 1989, 42 of 48 Alabama cities with 6,000 or more 
persons and populations that were at least 10% black 
switched from at-large to single-member-district or 
mixed electoral plans. Id. at 55. That change was 
critical, because, “ [a]s long as at-large elections were 
in place, white majorities voting as a bloc were able 
to prevent black citizens enfranchised by the Voting 
Rights Act from winning local office.” Id. at 56. And 
the VRA was the critical force behind that change: 
DOJ objections to preclearance requests prompted 4 
of the changes, 27 cities changed their electoral plans 
in response to litigation, and 11 changed voluntarily, 
but aware of the possibility of litigation or DOJ 
opposition. In the six cities that retained at-large 
electoral plans, three were white-majority cities with



19

proportional black representation, while the other 
three were black-majority cities. Id. at 55.

Empirical studies of other states further support 
the conclusion that the VRA has been instrumental 
to achieving racial equality in voting in the South. 
Lisa Handley and Bernard Grofman’s analysis of 
data obtained from studies of voting patterns, elec­
toral structures, and VRA enforcement activity in 
Southern states found that post-VRA gains in the 
offices held by black voters’ preferred representatives 
in Southern legislatures and congressional delega­
tions were almost entirely attributable to changes 
in electoral structures caused by VRA enforcement 
activity.22 For example, Handley and Grofman found 
that the increase in black office-holding was mostly 
attributable to the creation of more majority-black 
electoral districts and not changing racial attitudes 
among voters. Handley, Black Officeholding at 
340-43. Moreover, the authors compared changes in 
Southern states that were covered by § 5 and those 
that were not and found that, on average, covered 
states had 2.8 more black representatives than 
Southern states that were subject only to § 2. Id. at 
342-44.

2. Empirical research showing the continued 
racial polarization of the electorate in the South 
demonstrates that the VRA remains essential to pre­
venting a return to the types of vote-dilution tactics 
that historically have been used to diminish minori­
ties’ effective franchise. Contrary to the arguments 
advanced by petitioner’s amici that the continued

22 See Lisa Handley & Bernard Grofman, The Impact of the 
Voting Rights Act on Minority Representation: Black Office­
holding in Southern State Legislatures and Congressional Dele­
gations (“Handley, Black Officeholding’), in Quiet Revolution 
ch. 11, at 335.



20

prevalence of racial polarization, or racial bloc voting, 
is an “offensive stereotype” forced on covered juris­
dictions by DOJ,23 racial polarization is a fact that 
has been proven time and again in litigation and 
academic studies of voter behavior. “No court has 
ever found a violation in a voting rights case absent 
proof, typically presented through expert statistical 
analysis, that white or Anglo voters routinely defeat 
the candidates of choice of minority voters.” Peyton 
McCrary, Bringing Equality to Power: How the Fed­
eral Courts Transformed the Electoral Structure of 
Southern Politics, 1960-1990, 5 U. Pa. J. Const. L. 
665, 700 (2003).

In trial after trial, expert witnesses across the 
South showed that white bloc voting kept blacks 
from electing the candidates of their clear choice, ex­
cept in districts where they were a substantial major­
ity. During the 2005 congressional reauthorization 
hearings, Richard Engstrom presented findings that, 
“ [i]n 78 of the 90 [Louisiana] elections analyzed, 86.7 
percent, all available estimates show that African 
Americans cast a majority of their votes, usually 
extraordinary majorities of them, in support of an 
African American candidate, while a majority, also 
usually an extraordinary majority, of the non-African 
Americans voted for a non-African American candi­
date.”24 Engstrom also cited decisions issued be­
tween 2002 and 2004 by federal courts in South 
Carolina, Texas, Florida, and Georgia that identified

23 See Project 21 Br. 18-19; Mountain States Legal Found. Br. 
26.

24 Voting Rights Act: The Continuing Need for Section 5:
Hearing Before the Subcomm. on the Constitution of the H. 
Comm, on the Judiciary, 109th Cong. 58 (2005) (“2005 House 
‘Need’ Hr’g”).



21

significant racial polarization in those states. See 
2005 House “Need” Hr’g 59-60. The National Com­
mission on the Voting Rights Act’s February 2006 
report highlighted a University of Michigan analysis 
of federal court decisions in § 2 cases issued since 
1982. Out of 186 published decisions that addressed 
racial polarization in both covered and non-covered 
jurisdictions, 91 (49%) included a judicial finding of 
racially polarized voting.25

In reauthorizing § 5, Congress recognized that 
racial polarization remains a fact of Southern poli­
tics. Indeed, Congress found “that ‘the degree of 
racially polarized voting in the South is increasing, 
not decreasing . . . [and is] in certain ways re-creating 
the segregated system of the Old South, albeit a de 
facto system with minimal violence rather than the 
de jure system of late.’ ” H.R. Rep. No. 109-478, at 34 
(2006) (quoting Protecting Minority Voters at 95) 
(alterations in original). And it concluded that, 
despite § 5, Southern jurisdictions have repeatedly 
attempted in recent years to make changes to voting 
laws with the intent of diminishing the influence of 
minority voters by subsuming them into electoral 
structures dominated by white majorities. Id. at 
36-43, 56 (discussing use of § 5 to combat continued 
discrimination). The conditions underlying second- 
generation vote-dilution efforts — racially polarized 
voting — remain prevalent throughout the jurisdic­
tions covered by the VRA. Thus, if § 5 were struck 
down, there is little doubt that politicians in covered

25 Lawyers’ Comm, for Civil Rights Under Law, Nat’l Comm n 
on the Voting Rights Act, Protecting Minority Voters: The Voting 
Rights Act at Work 1982-2005, at 97 (Feb. 2006) (“Protecting 
Minority Voters”), available at http://www.lawyerscommittee. 
org/admin/voting_rights/documents/files/0023.pdf.

http://www.lawyerscommittee


22

jurisdictions would be able to resuscitate the types 
of intentional, retrogressive voting-law changes that 
Congress and DOJ have long fought to eliminate.
II. The Geographical Coverage Provision 

Always Has Covered States with Persistent 
and Widespread Abuses

One of the key issues before the Court is the degree 
to which the § 5 coverage provision accurately targets 
the locations where racial discrimination affecting 
voting is greatest. Petitioner and its amici criticize 
the coverage provision for not perfectly capturing the 
areas where significant voting discrimination prob­
lems persist. This is not the first time that argument 
has been advanced in this Court. In challenging 
the original VRA, South Carolina contended that 
the coverage provision was “arbitrary” and “absurd[j” 
because Florida, Arkansas, Texas, Tennessee, 
Kentucky, and New York were not covered despite 
“evidence submitted of known voter discrimination,” 
while South Carolina was covered “even though 
[Attorney General Katzenbach] testified that South 
Carolina, unlike [other] states, was free of voter dis­
crimination.” Brief of the Plaintiff at 17-18, South 
Carolina v. Katzenbach, 383 U.S. 301 (1966) (No. 22, 
Orig.) (filed Dec. 20, 1965), 1965 WL 130083.26

This Court rejected South Carolina’s challenge, 
recognizing the wealth of evidence of the covered 
jurisdictions’ serious and pervasive efforts to dis­

26 Attorney General Katzenbach had testified that “voting 
discrimination has been unquestionably widespread in all but 
South Carolina and Virginia, and other forms of racial discrim­
ination, suggestive of voting discrimination, are general in both 
of these States.” Voting Rights: Hearings on H.R. 6400 Before 
Subcomm. No. 5 of the H. Comm, on the Judiciary, 89th Cong. 
12 (1965) (“1965 House Hr’gs”).



23

enfranchise African-American voters, and because of 
the flexible “bail in” and “bail out” provisions built 
into the VRA. Katzenbach, 383 U.S. at 329-31. As a 
review of the history of the VRA’s enactment makes 
clear, the coverage provision has never achieved 
a perfect “fit,” and this Court has never expected 
perfection. Rather, Congress and this Court have 
appropriately recognized that the provision reflects 
Congress’s legislative judgment to target the jurisdic­
tions with the gravest danger of voting discrimina­
tion using the best evidence available.

A. The VRA’s Coverage Provision Has Never 
Achieved 100% Precision
1. The Development of the Original 

Coverage Provision
The evidence before Congress in 1965 illuminates 

the degree of “fit” that this Court demanded in up­
holding the original VRA. Congress had significant 
evidence of racial discrimination in voting in three 
states: Louisiana, Mississippi, and Alabama. See
Katzenbach, 383 U.S. at 329. Prior to 1965, it had 
brought 26 successful voting rights suits in those 
states. See id. at 312. Yet the results were meager. 
The registration rates for black citizens had risen 
from 14.2% to 19.4% in Alabama, from 31.7% to 
31.8% in Louisiana, and from 4.4% to 6.4% in Missis­
sippi. See id. at 313. DOJ’s experience in Dallas 
County, Alabama, is emblematic. After four years 
of drawn-out litigation, only 383 out of 15,000 black 
citizens were registered. See id. at 314-15; 1965 
House Hr’gs 5-6.

Congress had “more fragmentary” evidence of 
voting discrimination in three other states: Georgia, 
North Carolina, and South Carolina. See Katzenbach, 
383 U.S. at 329-30 & n.39. It primarily consisted of



24

several suits and investigations.27 The reason this 
evidence was “fragmentary” was not for lack of voting 
discrimination in those three states but rather be­
cause DOJ had been too busy in Louisiana, Missis­
sippi, and Alabama. 1965 Senate Hr’gs 28, 39-40; 
1965 House Hr’gs 89-90. Congress thus wished to 
include these states within the coverage formula.

Once Congress decided which states it wanted to 
cover, it reverse-engineered the coverage criteria to 
capture those states. Congress, “ [knowing] the states 
they wanted to ‘cover’ and, by a process of trial and 
error, determined the [formula] that would single 
them out.” 1 Voting Rights Act: Section 5 of the Act -  
History, Scope, and Purpose: Hearing Before the
Subcomm. on the Constitution of the H. Comm, on the 
Judiciary, 109th Cong. 68 (2005) (statement of Abi­
gail Thernstrom); see H.R. Rep. No. 89-439, at 41 
(1965), reprinted in 1965 U.S.C.C.A.N. 2437, 2470 
(“[A] target for the bill was selected before the means 
to reach the mark were devised.”) (minority view); 
see also Katzenbach, 383 U.S. at 329 (“ [t]he formula 
eventually evolved to describe [the] areas” where 
Congress had evidence of voting discrimination).28

The final provision covered any state that “main­
tained on November 1, 1964, any test or device,” as 
defined in § 4(c), with respect to which “less than 50 
per centum of the persons of voting age residing 
therein were registered on November 1, 1964, or that

27 See 1965 House Hr’gs 114-16; Voting Rights: Hearings on 
S. 1564 Before the S. Comm, on the Judiciary, 89th Cong. 
27-28, 39, 246-48, 1182-83, 1237, 1253, 1300-01, 1336-45, 1353-54 
(1965) (“1965 Senate Hr’gs”).

28 Conversely, Congress attempted to change the formula 
after it became clear that it covered unexpected jurisdictions 
like Alaska. See 1965 Senate Hr’gs 13, 37-38.



25

less than 50 per centum of such persons voted in the 
presidential election of November 1964.” VRA § 4(b), 
79 Stat. 438. As intended, these criteria led to cover­
age of the seven Southern states in which DOJ knew 
voting discrimination was rampant -  Alabama, 
Georgia, Louisiana, Mississippi, South Carolina, Vir­
ginia, and portions of North Carolina. Also included 
were several other scattered jurisdictions -  Alaska, 
three counties in Arizona, and one county in Idaho.

2. The 1965 Coverage Provision Did Not 
Achieve a Perfect Fit

Nobody expected the coverage provision to be 100% 
precise. Congress “knew no way of accurately fore­
casting whether the evil might spread elsewhere in 
the future.” Katzenbach, 383 U.S. at 328; see 1965 
House Hr’gs 80-81 (“The difficulty . . .  is we cannot 
get completely accurate figures . . . , and in the[ir] 
absence . . .  it seems to me that Congress should 
make the judgment . . .  on the best evidence availa­
ble.”) (statement of Attorney General Katzenbach).29 
In fact, the formula did not cover several jurisdic­
tions with abysmal voting-rights records, namely 
Texas, Arkansas, Tennessee, and Florida.30

Texas. By 1965, “Texas ha[d] a long, well- 
documented history of discrimination that has

29 See also 1965 House Hr’gs 27-28, 48, 78, 91-92 (“We don’t 
have racial statistics on registration or on voting for all States 
that we believe would form the basis for a congressional deter­
mination.”), 122, 289, 293-94, 419, 693-94; 1965 Senate Hr’gs 
147-49, 179, 203, 596, 598-600.

30 See 1965 House Hr’gs 694 (“[T]here are four other States 
where there is pretty well-known discrimination against 
Negroes. It runs downhill from Florida and Arkansas to Ten­
nessee and Texas.”) (statement of Joseph L. Rauh, Jr., Counsel 
for the NAACP Legal Defense Fund).



26

touched upon the rights of African-Americans and 
Hispanics to register, to vote, or to participate other­
wise in the electoral process. Devices such as the 
poll tax, an all-white primary system, and restrictive 
voter registration time periods [were] an unfortunate 
part of this State’s minority voting rights history.” 
League of United Latin Am. Citizens u. Perry, 548 
U.S. 399, 439-40 (2006) (internal quotation marks 
omitted); see also White v. Regester, 412 U.S. 755, 
765-69 (1973). This discrimination was evidenced in 
1965 by a state-wide voting turnout of only 44% in 
the 1964 presidential election, 17% below the national 
average. See 1965 Senate Hr’gs 33-34.

Arkansas. In 1965, many African Americans in 
Arkansas were disenfranchised to the same extent as 
those in neighboring Louisiana and Mississippi. For 
example in Crittenden County, which borders Mem­
phis and Mississippi, only 1,777 out of 12,871 (13.8%) 
of African-Americans were registered to vote, 
compared to 7,299 out of 10,569 (69%) of whites. See 
1965 House Hr’gs 144; see also id. at 405 (“Arkansas 
has nine counties in which there is not a single Negro 
registered, yet, Arkansas is not covered.”). Arkan­
sas’s “long history of invidious discrimination in the 
election process,” Perkins v. City of West Helena, 675 
F.2d 201, 211 (8th Cir.), aff’d, 459 U.S. 801 (1982), 
eventually led to the entire State being “bailed in” 
under § 3(c). See Jeffers u. Clinton, 740 F. Supp. 585, 
601 (E.D. Ark. 1990).

Florida. In the 1965 debates, DOJ affirmed to 
Congress that voting discrimination was ongoing in 
northern Florida. See 1965 House Hr’gs 69, 77, 89- 
90; 1965 Senate Hr’gs 147. Gadsden County, which 
borders Alabama, was emblematic. Only 1,425 out of 
12,261 (11.6%) African-Americans were registered.



27

See 1965 House Hr’gs 154, 418-19. Because of this 
discrimination, Gadsden and Escambia (another 
northern Florida county) were later “bailed in” under 
§ 3. See NAACP v. Gadsden Cnty. Sch. Bd., 589 
F. Supp. 953, 958-59 (N.D. Fla. 1984); McMillan v. 
Escambia Cnty., No. 77-0432 (N.D. Fla. Dec. 3, 1979) 
(order).

Tennessee. DOJ had been active in combating 
voting discrimination in Tennessee in the years lead­
ing up to the VRA. See 1965 Senate Hr’gs 240. Four 
years prior, DOJ won an injunction against two 
Tennessee counties where sharecroppers had been 
evicted from their homes after attempting to register. 
See 1965 House Hr’gs 667, 681-85. Yet disenfran­
chisement persisted, as evidenced by the low regis­
tration rates for certain counties with significant 
African-American populations. See, e.g., id. at 203, 
205-06 (registration rates for Davidson, Hardeman, 
and Haywood counties were 8.7%, 15.3%, and 8.7% 
lower than the statewide average, respectively). 
Chattanooga County was eventually “bailed in” under 
§ 3 because of its discriminatory voting practices. 
See Brown v. Board of Comm’rs of the City of Chatta­
nooga, No. 87-388 (E.D. Tenn. Jan. 11, 1990).

The VRA’s original coverage provision also includ­
ed areas for which there was no evidence at that 
time of voting discrimination — Alaska and portions 
of Arizona, Hawaii, and Idaho.31 See S. Rep. No. 
89-162, pt. 3, at 37-38 (1965), reprinted in 1965 
U.S.C.C.A.N. 2508, 2575-76; H.R. Rep. No. 89-439, at

31 While there was no evidence submitted of voting discrimi­
nation in Alaska in 1965 (or 1970), there was evidence for the 
1975 reauthorization relating to the barriers posed by English- 
only tests to native Alaskan populations’ ballot access. See H.R. 
Rep. No. 94-196, at 20-21.



28

73, 1965 U.S.C.C.A.N. 2492 (minority view); 1965 
House Hr’gs 61, 88, 94, 450-51, 765; 1965 Senate 
Hr’gs 103. Alaska and Hawaii fell within the provi­
sion because they had large alien and military popu­
lations that were either ineligible or unlikely to vote, 
which drove voter turnout below 50% in the 1964 
presidential election. See 1965 House Hr’gs 277. 
There were also small pockets in the covered South­
ern states that had made advances toward voting 
equality and yet fell within the coverage provision. 
For example, a few parishes in southern Louisiana 
had almost reached parity in voting registration 
for white and black citizens. See, e.g., id. at 179 
(Evangeline Parish), 181 (St. Charles Parish), 183 
(Vermillion Parish); see also id. at 48, 85-86 (“There 
has been at least no significant discrimination, no 
discrimination that I am aware of, in several of the 
parishes of Louisiana.”); 1965 Senate Hr’gs 36-37.

Nonetheless, despite these imperfections, the 
coverage addressed the “heart of the problem” using 
“the best evidence available.” 1965 House Hr’gs 77, 
80-81. Congress minimized the impact of any imper­
fections by allowing a jurisdiction to “bail out,” if 
it could prove it had not discriminated for a period 
of time, and by allowing a court to “bail in” a juris­
diction that engaged in voting discrimination. See 
VRA §§ 3(c), 4(a), 79 Stat. 437-38. These provisions 
proved effective in the years immediately following 
the VRA’s enactment. Jurisdictions for which there 
was no evidence of voting discrimination -  Alaska, 
two counties in Arizona, and a county in Idaho — suc­
cessfully “bailed out.”32 And, as noted above, several

32 See Elmore County v. United States, No. 66-820 (D.D.C. 
Sept. 22, 1966); Alaska v. United States, No. 66-101 (D.D.C.



29

jurisdictions that had records of voting discrimina­
tion -  portions of Arkansas, Tennessee, and Florida -  
were “bailed in.”

3. Congress’s Reauthorizations of the 
Coverage Provision

The history of the VRA’s subsequent reauthoriza­
tions further demonstrates that the coverage provi­
sions always have approximated -  and never perfect­
ly captured -  the geographical areas where voting 
rights abuses were occurring.

In 1970, Congress extended the preclearance 
regime for all previously covered states for five years. 
H.R. Rep. No. 91-397, at 6-7, 1970 U.S.C.C.A.N. 
3282-83; see Voting Rights Act Amendments of 1970, 
Pub. L. No. 91-285, § 3, 84 Stat. 314, 315. Despite 
concerns about the over-inclusiveness of the coverage 
provision,33 Congress did not significantly alter it. It 
extended coverage to any jurisdiction that had a “test 
or device” as of 1968 and in which the voter turnout 
was less than 50% in the 1968 presidential election, 
which had the effect of covering portions of several 
other states. See H.R. Rep. No. 94-196, at 5-6. 
Congress, however, rejected a proposal to use only 
the 1968 voting figures after learning that doing 
so would have excluded Alabama, Louisiana, Missis­
sippi, and Virginia. See 1969 House Hr’gs 93.

Aug. 17, 1966); Apache Cnty. v. United States, 256 F. Supp. 903 
(D.D.C. 1966).

33 See H.R. Rep. No. 91-397, at 14, 1970 U.S.C.C.A.N. 3289 
(“Sections 4 and 5 are mischievous because in their application 
they are promiscuous. They cover some States and counties 
which are innocent and fail to cover some which are guilty.”) 
(Rep. Poff dissenting); id. at 15, 1970 U.S.C.C.A.N. 3289 
(complaining that Virginia remained covered even though the 
Attorney General had not sent any observers or examiners to 
Virginia).



30

In 1975, Congress extended the VRA for an addi­
tional seven years for already-covered jurisdictions 
“to insure that that progress not be destroyed 
through new procedures and techniques” for vote 
dilution. H.R. Rep. No. 94-196, at 10-11; S. Rep. No. 
94-295, at 16-19 (1975).34 Congress did not under­
take a comparative analysis of voting discrimination 
across the country or endeavor to fix any perceived 
existing imperfections in the coverage provision. It 
considered only whether there was a continuing need 
for the VRA in covered jurisdictions. The reasona­
bleness of Congress’s judgment on that issue was 
again challenged. And, as in Katzenbach, this Court 
rejected that challenge in City of Rome v. United 
States, 446 U.S. 156 (1980).

Although Congress did not remove any already- 
covered jurisdictions in 1975, it expanded the defini­
tion of “test or device” to include the practice of 
providing English-only voting materials in any juris­
diction where more than 5% of the citizens were of a 
single-language minority. 1975 Act § 203, 89 Stat. 
401 (adding VRA § 4(f)). That change effectively 
expanded § 5 to new jurisdictions in which Hispanic 
and Native American voters had suffered voting 
discrimination. Here, too, the coverage provision 
was both over-inclusive and under-inclusive. See 
H.R. Rep. No. 94-196, at 27 (“ [Tjhere may be areas

34 Similar to the 1970 reauthorization, Congress covered 
additional jurisdictions that had a “test or device” as of Novem­
ber 1, 1972, and that had a voting turnout less than 50% in the 
1972 presidential election. See Act of Aug. 6, 1975, Pub. L. No. 
94-73, §§ 201-202, 89 Stat. 400, 400-01 (“1975 Act”) (amending 
VRA § 4(a)-(b)). This change was inconsequential. See Exten­
sion of the Voting Rights Act: Hearings Before the Subcomm. on 
Civil and Constitutional Rights of the H. Comm, on the Judici­
ary, 94th Cong. 53 (1975) (“1975 House Hr’gs”).



31

covered by this [provision] where there has been no 
voting discrimination.”); id. at 87 (dissenting view); 
1975 House Hr’gs 84-85, 87-88, 503, 621, 884, 934. 
For instance, it did not cover Los Angeles, which had 
a recent record of racial gerrymanders that diluted 
Hispanic voting power. See 1975 House Hr’gs 151- 
55. Once again, the Act’s bail-in and bail-out provi­
sions proved effective in curing this imperfection, as 
Los Angeles County was eventually bailed in. See 
Garza v. Los Angeles Cnty., Nos. 88-5143 & 88-5435 
(C.D. Cal. Apr. 25, 1991) (bailing in Los Angeles).

In 1982, Congress again extended the preclearance 
regime because of the continued disparity in white 
and black registration rates, the inability of black 
politicians to win higher political offices, and the 
numerous discriminatory voting changes attempted 
by covered jurisdictions. See H.R. Rep. No. 97-227, 
at 7-10, 13-20. Rather than modifying the coverage 
provision, Congress modified the bail-out provision.35 
It allowed bailout by jurisdictions that could show 
substantial improvement in minority voting rights,36 
and it allowed piecemeal bailout by political sub­
divisions in covered states. See Voting Rights Act 
Amendments of 1982, Pub. L. No. 97-205, § 2, 96

35 See Extension of the Voting Rights Act: Hearings Before the 
Subcomm. on Civil and Constitutional Rights of the H. Comm, 
on the Judiciary, 97th Cong. 468 (1981) (“I have tried to think 
of a better coverage formula, and I have to admit I have not
successfully convinced myself that I know of one----- I would
think, rather than change the coverage formula, changing the 
bailout procedure may be a more fruitful thing. ) (statement of 
Professor Richard Engstrom).

36 Under the 1965, 1970, and 1975 versions of the VRA, 
jurisdictions could bail out only upon a showing that they had 
not made discriminatory use of a “test or device for a specified 
period of time that extended into the years before 1965.



32

Stat. 131, 131; H.R. Rep. No. 97-227, at 32-33, 39-45; 
S. Rep. No. 97-417, at 43-62 (1982); see Northwest 
Austin Mun. Util. Dist. No. One v. Holder, 557 U.S. 
193, 209 (2009). These changes assured that any 
over-inclusiveness could be solved by the covered 
jurisdictions themselves.

B. The Current VRA Coverage Provision Is 
Consistent with the Standard Adopted by 
Congress and Upheld by This Court

Congress’s reauthorization of the VRA’s coverage 
provision in 2006 is consistent with its prior findings 
that the covered jurisdictions continued to experi­
ence significantly higher rates of purposeful voting 
discrimination than other areas of the country. 
Congress found that significant registration dispari­
ties persisted in Virginia and South Carolina, and 
African-Americans had yet to be elected to statewide 
office in Mississippi, Louisiana, or South Carolina. 
See Shelby Cnty. v. Holder, 679 F.3d 848, 862-63 
(D.C. Cir. 2012). Moreover, second-generation tactics 
remained prevalent in the covered jurisdictions lead­
ing up to the 2006 reauthorization. Id. at 865-66 
(listing examples in Mississippi, Georgia, Louisiana, 
and Texas).

As in the past, Congress heeded DOJ’s experience 
in enforcing the VRA: DOJ had lodged at least 626 
objections to changes in voting practices by the 
covered jurisdictions, an average of 28.5 per year, 
id. at 866; it had issued many “more information 
requests,” which prompted submitting jurisdictions 
to withdraw or modify potentially discriminatory 
changes, id. at 866-68; it had dispatched thousands 
of examiners to jurisdictions where voting rights 
abuses were ongoing, id. at 869-70; and it had brought 
105 successful § 5 enforcement actions, id. at 870.



33

There also had been 653 successful § 2 suits in 
covered jurisdictions from 1982 to 2005. Id. at 868- 
69. Congress reasoned that the specter of § 5 had 
prevented many more would-be attempts at voting 
discrimination. Id. at 871.

Placed in historical context, this evidence of 
continued discrimination in the covered jurisdictions 
was at least as strong as had been presented in prior 
reauthorizations. See id. at 872 (summarizing the 
evidence before Congress). Accordingly, Congress 
determined that preclearance was still necessary for 
the already-covered states.

In fact, Congress’s analysis of the geographical 
coverage issue was more extensive than in past 
reauthorizations. Unlike prior reauthorizations, 
evidence available in 2006 allowed for a comparison 
between voting discrimination in covered and non- 
covered jurisdictions. According to the Katz study, 
56% of all successful § 2 litigation occurred in covered 
jurisdictions, despite the fact that those jurisdictions 
accounted for only 25% of the nation’s population. 
See To Examine the Impact and Effectiveness of the 
Voting Rights Act: Hearing Before the Subcomm. on 
the Constitution of the H. Comm, on the Judiciary, 
109th Cong. 974 (2005) (report by Ellen Katz et al.). 
The results are more pronounced when unpublished 
§ 2 cases were considered: 81% of successful § 2 suits 
were filed in covered jurisdictions, with covered 
states having the eight highest per capita rates 
of successful § 2 suits. See Shelby Cnty., 679 F.3d 
at 875 (citing Decl. of Dr. Peyton McCrary). This 
comparative evidence provided more robust support 
for the coverage provision than existed for prior re­
authorizations.



34

The dissenting opinion in the court below offered 
numerous criticisms of the 2006 coverage criteria 
based on statistical data for covered and non-covered 
states. Some of those criticisms -  for example, that 
there is no “positive correlation” between low black 
registration or voter turnout rates and inclusion in 
the provision, id. at 891 (Williams, J., dissenting) -  
ignore the fact that the primary discriminatory tactic 
that exists today (vote dilution) remains pervasive 
despite higher minority registration and turnout 
rates. Moreover, the suggestion that the coverage 
provision is irrational because covered jurisdictions 
have a high rate of minority elected officials is mis­
leading, because whites still dominate major political 
offices, while many black officials hold local positions. 
Id. at 892 fig. 3 (Williams, J., dissenting); see id. at 
862 (majority); H.R. Rep. No. 94-196, at 7.

The dissenting judge also contended that the 
coverage provision was unsustainable because some 
uncovered jurisdictions have worse records with 
respect to published successful § 2 suits than some 
of the covered jurisdictions. But that criticism is 
no different from the one lodged against the original 
VRA, and every reauthorization since. Just as 
Texas, Arkansas, Tennessee, and Florida were not 
included in the VRA’s coverage provision in 1965, 
it may well be that certain uncovered states today 
experience significant incidence of purposeful dis­
crimination in voting. But the fact that the coverage 
provision is under-inclusive certainly does not mean 
inclusion of the covered jurisdictions is arbitrary or 
irrational, especially in light of the law’s flexible “bail 
in” and “bail out” provisions.

In sum, the VRA’s coverage provision is as precise 
as it has been in the past, and Congress repeatedly



35

has reaffirmed it as appropriate because it concen­
trates on areas of demonstrated need. That need is 
confirmed by the history of purposeful discrimination 
in the covered jurisdictions and the very real risk 
that invalidating § 5 will result in retrogression in 
those areas. This Court has twice -  in Katzenbach 
and City of Rome -  upheld Congress’s judgment as 
an appropriate exercise of its authority under the 
Fourteenth and Fifteenth Amendments. It should do 
so again.

CONCLUSION
The judgment of the court of appeals should be 

affirmed.
Respectfully submitted,

D erek T. Ho 
Counsel of Record

David L. Schwarz
Kellogg, Huber, Hansen, 

Todd, Evans & Figel, 
P.L.L.C.

1615 M Street, N.W.
Suite 400
Washington, D.C. 20036
(202) 326-7900

February 1, 2013 (dho@khhte.com)

mailto:dho@khhte.com


APPENDIX



la

List of Amici
(titles and institutional affiliations are 

provided for identification purposes only)

Chandler Davidson, Tsanoff Professor of 
Public Affairs Emeritus, Rice University
Professor Davidson was co-director, along with Pro­
fessor Bernard Grofman of the University of Califor­
nia at Irvine, of perhaps the most comprehensive 
scholarly effort to assess the impact of the Voting 
Rights Act of 1965 in the South. The project involved 
almost thirty political scientists, historians, sociolo­
gists, and voting rights lawyers. The resulting book, 
Quiet Revolution in the South (Princeton University 
Press, 1994), was awarded the Richard Fenno Prize 
by the American Political Science Association. In 
2005-06, Davidson served on the National Commis­
sion on the Voting Rights Act and was the primary 
drafter and author of the Commission’s 2006 report, 
Protecting Minority Voters. Davidson’s scholarship 
on voting rights has been cited at least seven times 
in U.S. Supreme Court opinions and numerous times 
in lower court opinions.

Alexander Keyssar, Matthew W. Stirling, Jr. 
Professor of History and Social Policy, Kennedy 
School of Government, Harvard University
Professor Keyssar is a historian who has specialized 
in the study of voting in the United States. His book, 
The Right to Vote: The Contested History of Democ­
racy in the United States (2000), was named the best 
book in U.S. history by both the American Historical 
Association and the Historical Society; it was also a 
finalist for the Pulitzer Prize and the Los Angeles 
Times Book Award. In 2004 and 2005, Keyssar 
chaired the Social Science Research Council’s Na­
tional Research Commission on Voting and Elections.



2a

Ira Katznelson, Ruggles Professor of Political 
Science and History, Columbia University
Professor Katznelson’s work has straddled compara­
tive politics and political theory as well as political 
and social history. His most recent books are When 
Affirmative Action Was White: An Untold History 
of Racial Inequality in Twentieth-Century America; 
Black Men, White Cities: Race, Politics and Migra­
tion in the United States, 1900-1930, and Britain, 
1948-1968; Schooling for All: Class, Race, and the 
Decline of the Democratic Ideal (with Margaret 
Weir). Professor Katznelson was President of the 
American Political Science Association for 2005-2006. 
Previously, he served as President of the Social 
Science History Association and Chair of the Russell 
Sage Foundation Board of Trustees. He has been a 
Guggenheim Fellow and is a Fellow of the American 
Academy of Arts and Sciences and the American 
Philosophical Society.

James Wayne Flynt, Distinguished University 
Professor Emeritus, Auburn University
Professor Flynt has written 11 books that focus 
largely on the historical, economic and social fabric of 
Alabama, including Poor But Proud: Alabama’s Poor 
Whites (1990), and he co-wrote Alabama: A History 
of a Deep South State, both of which were nominated 
for Pulitzer Prizes. He is editor-in-chief of the online 
Encyclopedia of Alabama, a partnership of Auburn 
University and the Alabama Humanities Founda­
tion.



3a

George Korbel, Esq., San Antonio, Texas
Mr. Korbel was the Litigation Coordinator for Texas 
Rural Legal Aid, Inc. from 1981 to 1985 and has been 
the Director of the Constitutional and Civil Rights 
Litigation Project for Texas Rural Legal Aid since 
1985. He has been involved in Texas redistricting 
litigation for much of his career, including 
NAMUDNO v. Holder, 557 U.S. 193 (2009), and 
LULAC v. Perry, 548 U.S. 399 (2006).

Nicolaus Mills, Professor of American Studies, 
Sarah Lawrence College
Professor Mills is the author of Like a Holy Crusade: 
Mississippi 1964 -  The Turning of the Civil Rights 
Movement in America -  a book documenting the 
“Summer Project” of 1964 where thousands of North­
ern white college students were recruited to come 
south that summer in an effort to “break” Mississippi 
and secure voting rights for its black citizens.

Minion K.C. Morrison, Professor and Head, 
Department of Political Science and Public 
Administration, Mississippi State University
Professor Morrison’s professional work focuses on 
electoral politics in the South. His publications 
include three books, and numerous articles and book 
reviews. He is the past President of the National 
Conference of Black Political Scientists and has 
served on the editorial board of the American Politi­
cal Science Review.



4a

Richard M. Valelly, Professor of Political 
Science, Swarthmore College
Professor Valelly is an expert on American party 
politics, election law, voting rights, and the institu­
tional development of the House and the Senate. 
Among many other works, he is the author of The 
Two Reconstructions: The Struggle for Black Enfran­
chisement (University of Chicago Press, 2004), which 
won the Ralph Bunche and J. David Greenstone book 
awards of the American Political Science Association, 
and the V.O. Key, Jr., book award of the Southern 
Political Science Association.

Michael McDonald, Associate Professor, 
Department of Public and International Affairs, 
George Mason University
Professor McDonald received his Ph.D. in Political 
Science from University of California, San Diego 
and B.S. in Economics from California Institute of 
Technology. His research includes voting behavior, 
redistricting, Congress, American political develop­
ment, and political methodology. He has written 
numerous articles in edited volumes and in scholarly 
journals.

Lorraine Minnite, Associate Professor of Public 
Policy and Administration, Rutgers University
Professor Minnite’s research is concerned with issues 
of inequality, social and racial justice, political 
conflict, and institutional change. She is the author 
or co-author of two books on electoral rules and racial 
and class politics in the U.S., The Myth of Voter 
Fraud, and Keeping Down the Black Vote: Race and 
the Demobilization of American Voters.



5a

Orville Vernon Burton, Professor of History 
and Computer Science, Clemson University
Professor Burton’s research and teaching focuses on 
the American South, especially race relations and 
community, and the intersection of humanities and 
social sciences. He has 16 authored or edited books 
and more than one hundred eighty articles. His 
book, The Age of Lincoln (2007), won the Chicago 
Tribune Heartland Literary Award for Nonfiction.

James Loewen, Emeritus Professor of Sociology, 
University of Vermont
Professor Loewen has taught race relations for 
twenty years at the University of Vermont and, 
before that, at Tougaloo College in Mississippi. His 
books include Mississippi: Conflict and Change (co­
authored), which won the Lillian Smith Award for 
Best Southern Nonfiction but was rejected for public- 
school text use by the State of Mississippi, leading 
to the path-breaking First Amendment lawsuit, 
Loewen, et al. u. Turnipseed, et al. He also wrote Lies 
My Teacher Told Me, a winner of the 1996 American 
Book Award.

David Richards, Esq., Austin, Texas
David Richards has broad experience in Texas voting 
rights litigation. Among his more notable cases is 
White v. Regester, 412 U.S. 755 (1973). He has also 
been an adjunct professor of law at the University of 
Texas Law School and served as an attorney with the 
U.S. Commission on Civil Rights. From 1982 to 
1985, he was Executive Assistant Attorney General 
of Texas supervising the State’s litigation.



6a

James E. Alt, Frank G. Thomson Professor of 
Government, Harvard University
Professor Alt is the author, co-author, or editor of 
numerous books and articles on American politics, 
with a focus on political parties. He is the founding 
director of the Center for Basic Research in the 
Social Sciences. He is or has been a member of the 
editorial boards of the American Journal of Political 
Science, British Journal of Political Science, Political 
Studies, American Political Science Review, and oth­
er journals, and has been a member of the Political 
Science Panel of the National Science Foundation. 
He was a Guggenheim Fellow 1997-98 and is a mem­
ber of the American Academy of Arts and Sciences.

Michael Jones-Correa, Professor of Govern­
ment, Cornell University
Professor Jones-Correa is the author of numerous 
books and more than two dozen articles and chapters 
on immigration, race, ethnicity and citizenship in 
the United States. Jones-Correa has been a visiting 
fellow at the Russell Sage Foundation 1998-1999, the 
Woodrow Wilson International Center for Scholars 
2003-2004, and the Center for the Study of Demo­
cratic Politics at Princeton University in 2009-2010. 
In 2004-2005 he served on the Committee on the 
Redesign of US Naturalization Test for the National 
Academy of Sciences, in 2009 was elected as vice 
president of the American Political Science Associa­
tion, and was appointed in 2010 to the American Na­
tional Election Studies (ANES) Board of Overseers.



7a

Rebecca J. Scott, Charles Gibson Distinguished 
University Professor History and Professor of 
Law, University of Michigan
Professor Scott is the author of Degrees of Freedom: 
Louisiana and Cuba after Slavery (Harvard Univer­
sity Press, 2005), which received the Frederick 
Douglass Prize and the John Hope Franklin Prize. 
Professor Scott received an A.B. from Radcliffe 
College, an M.Phil. in economic history from the 
London School of Economics, and a Ph.D. in history 
from Princeton University. She is a recent recipient 
of the Guggenheim Fellowship and a member of the 
American Academy of Arts and Sciences.

David A. Bositis, Senior Political Analyst, Joint 
Center for Political and Economic Studies, 
Washington, D.C.
Dr. Bositis is a voting rights and redistricting expert, 
who has published widely in this area, and has 
appeared as an expert witness in both state and fed­
eral court. Since 1997, Dr. Bositis has also been the 
author of the Joint Center series on black elected 
officials entitled Black Elected Officials: A Statistical 
Analysis. Since 1992, Dr. Bositis has designed and 
managed 29 national surveys for the Joint Center, 
which have included national and state surveys of 
the African American and Hispanic populations and 
the general population, as well as specialized national 
surveys of black elected officials, young adults, black 
churches, minority owned businesses, black profes­
sionals, and social workers.



8a

Charles M. Payne, Frank P. Hixon Distin­
guished Service Professor, University of Chicago
Professor Payne is the author of I ’ve Got the Light of 
Freedom: The Organizing Tradition in the Missis­
sippi Civil Rights Movement (1995), which won 
awards from the Southern Regional Council, 
Choice Magazine, the Simon Wisenthal Center, and 
the Gustavus Myers Center for the Study of Human 
Rights in North America. He is also co-author 
of Debating the Civil Rights Movement (1999) and 
co-editor of Time Longer Than Rope: A Century of 
African American Activism, 1850-1950 (2003).

Lisa Handley, Ph.D., Co-founder and President, 
Frontier IEC, Washington, D.C.
Dr. Lisa Handley has over twenty-five years of expe­
rience in the areas of redistricting and voting rights, 
as both a practitioner and an academician, and is 
recognized nationally (as well as internationally) as 
an expert on these subjects. She has advised numer­
ous jurisdictions and other clients on redistricting 
and has served as an expert in dozens of redistricting 
and voting rights court cases. Her clients have 
included scores of state and local jurisdictions, re­
districting commissions, civil rights organizations, 
and the U.S. Department of Justice, as well as such 
international organizations as the United Nations. 
In addition, Dr. Handley has been actively involved 
in research, writing, and teaching on the subjects of 
voting rights and redistricting. She holds a Ph.D. in 
political science from George Washington University.



9a

Paula McClain, Professor of Political Science 
and Public Policy, Duke University
Professor McClain’s research focuses on racial minor­
ity group politics, particularly inter-minority political 
and social competition, and urban politics, especially 
public policy and urban crime. Among other publica­
tions, she is co-author, with Steven Tauber, of 
“American Government in Black and White,” which 
was honored by the American Political Science Asso­
ciation. She is also the former president of the 
Southern Political Science Association and vice pres­
ident of the American Political Science Association.

Lorn S. Foster, Charles and Henrietta Johnson 
Detoy Professor of American Government and 
Professor of Politics, Pomona College
Professor Foster’s scholarly research includes 
campaigns and elections, civil rights, urban politics, 
and the Voting Rights Act. His publications include 
“Section 5 of the Voting Rights Act: The Implemen­
tation of an Administrative Remedy,” Publius, 17-29, 
Fall 1996, and “The Voting Rights Act: Political
Modernization and the New Southern Politics,” 
Southern Studies, 266-287, Fall 1984. He was also 
the editor of The Voting Rights Act: Consequences 
and Implications (Praeger Special Studies, 1985) and 
chapter, “Political Symbols and the Enactment of the 
1982 Voting Rights Act.”



10a

Thomas Pettigrew, Research Professor of 
Social Psychology, University of California 
Santa-Cruz
Professor Pettigrew has published more than 300 
articles and book chapters on racism and intergroup 
relations. Pettigrew has twice received the Gordon 
Allport Intergroup Relations Prize from the Society 
for the Psychological Study of Social Issues. He has 
also received lifetime achievement awards from the 
American Sociological Association, the Society for 
Psychological Study of Social Issues, the Society for 
Experimental Social Psychology, the International 
Society of Political Psychology, and the International 
Academy for Intercultural Research.

Michael Perman, Professor of History Emeri­
tus, University of Illinois at Chicago
Michael Perman has studied the history of the Amer­
ican South, the Civil War and Reconstruction, and 
slavery and race relations. He has published a 
number of books in those areas, including Pursuit 
of Unity: A Political History of the American South 
(University of North Carolina Press, 2010), and 
The Southern Political Tradition (Louisiana State 
University Press, 2012).

Michael Benedict, Professor Emeritus of 
History, Ohio State University
Professor Benedict is a recognized authority in 
Anglo-American constitutional and legal history, the 
history of civil rights and liberties, the federal system 
and the Civil War and Reconstruction. He has 
written several books and more than 40 essays on 
American history. Professor Benedict is a fellow of 
the Society of American Historians and Parliamen­
tarian of the American Historical Association.



11a

Steven F. Lawson, Professor Emeritus of 
History, Rutgers University
Professor Lawson’s areas of research have been the 
history of the civil rights movement, especially the 
expansion of black voting rights and black politics. 
His major publications include: Black Ballots: Voting 
Rights in the South, 1944-1969; In Pursuit of Power: 
Southern Blacks and Electoral Politics, 1965-1982; 
Running for Freedom: Civil Rights and Black Politics 
in America Since 1941; and Debating the Civil Rights 
Movement (with Charles Payne).

Frances Fox Piven, Professor of Political 
Science, City University of New York
Professor Piven’s scholarly research focuses on 
political movements and electoral politics. She is the 
past Vice-President of the American Political Science 
Association and past president of the Society for the 
Study of Social Problems. She is currently President 
of the American Sociological Association. She is 
the recipient of numerous awards, including the 
President’s Award of the American Public Health 
Association, and the American Sociological Associa­
tion’s Career Award for the Practice of Sociology, as 
well as their award for the Public Understanding of 
Sociology.

Gracia Hillman, CEO and Principal Consultant, 
G.M. Hillman & Associates, Inc.
Ms. Hillman served as a commissioner, Chair, and 
Vice Chair of the U.S. Election Assistance Commis­
sion from 2003 to 2010. She has also served as the 
Executive Director of the League of Women Voters of 
the United States.



12a

Peter H. Argersinger, Professor of History, 
Southern Illinois University
Professor Argersinger earned his Ph.D. from the 
University of Wisconsin in 1970 and has also taught 
at the University of Maryland Baltimore County. 
He has written several books on American political 
history.

Tova Andrea Wang, Senior Democracy Fellow, 
Demos
Tova Andrea Wang is an expert on election reform 
and political participation in the United States and 
internationally. She is Senior Democracy Fellow 
at Demos, a Fellow at The Century Foundation, and 
a consultant to organizations working to improve 
democracy around the world, such as the National 
Democratic Institute and The Carter Center. She is 
the author of the 2012 book The Politics of Voter 
Suppression: Defending and Expanding Americans’ 
Right to Vote (Cornell University Press). She has 
also worked for the National Commission on Federal 
Election Reform.

Spencer A. Overton, Professor of Law, George 
Washington University
Professor Overton specializes in voting rights and 
campaign finance. He has written numerous articles 
and books in those areas, including Stealing Democ­
racy: The New Politics of Voter Suppression.





K e l l o g g , H u b e r , H a n s e n , T o d d , E v a n s  &  F i g e l , P .L .L .C .
S U M N E R  S O U A R E  

1615 M S T R E E T ,  N.W.

S U I T E  4 0 0

W A S H I N G T O N ,  D.C. 2 0 0 3 6 - 3 2 0 9

( 2 0 2 )  3 2 6 - 7 9 0 0

F A C S IM IL E :  
( 2 0 2 )  3 2 6 - 7 9 9 9

February 1, 2013

By Hand and 
Electronic Mail
(dmcner n ey@supremecourt.gov)

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

Attn: Denise McNerney, Esq.

Re: Shelby County, Alabama u. Eric H. Holder, Jr., etc., et al., No. 12-96

Dear Mr. Suter:

Please find enclosed for filing in the above-captioned case 40 copies of the 
Brief of Historians and Social Scientists as Amici Curiae in Support of Respondents; 
a certificate of word count; and a certificate of service.

If you have any questions, please call me at (202) 326-7931.

Very truly yours,

Derek T. Ho
Counsel of Record for Amici 
Historians and Social Scientists

cc: Counsel for Petitioner,
Counsel for Respondents

mailto:ey@supremecourt.gov


IN THE SUPREME COURT OF THE UNITED STATES

No. 12-96

Shelby County, Alabama,
Petitioner,

v.

Eric H. Holder, Jr., Attorney General, et al.,
Respondents.

CERTIFICATE OF WORD COUNT

Pursuant to Rule 33.1(h) of the Rules of this Court, I certify that the 

accompanying Brief of Historians and Social Scientists as Amici Curiae in Support 

of Respondents, which was prepared using Century Schoolbook 12-point typeface, 

contains 8,986 words, excluding the parts of the document that are exempted by 

Rule 33.1(d). This certificate was prepared in reliance on the word-count function of 

the word-processing system (Microsoft Office Word 2007) used to prepare the 

document.

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

Executed on February 1, 2013.

Derek T. Ho
Counsel of Record for Amici 
Historians and Social Scientists



IN THE SUPREME COURT OF THE UNITED STATES

No. 12-96

Shelby County, Alabama,
Petitioner,

v.

Eric H. Holder, Jr., Attorney General, et al.,
Respondents.

CERTIFICATE OF SERVICE

Pursuant to Rule 29.5 of the Rules of this Court, I certify that all parties 

required to be served have been served. On February 1, 2013, I caused copies of the 

Brief of Historians and Social Scientists as Amici Curiae in Support of Respondents 

to be served by first-class mail, postage prepaid, and by electronic mail (as 

designated) on those on the attached list.

Derek T. Ho
Counsel of Record for Amici 
Historians and Social Scientists



SERVICE LIST

Bert W. Rein 
(brein@wileyrein.com)
Wiley Rein LLP 
1776 K Street, N.W.
Washington, D.C. 20006 
(202) 719-7000
Counsel of Record for Petitioner 
Shelby County, Alabama

Donald B. Verrilli, Jr. 
(supremectbriefs@usdoj.gov)
Solicitor General
United States Department of Justice 
950 Pennsylvania Avenue, N.W. 
Washington, D.C. 20530-0001 
(202) 514-2217
Counsel of Record for Respondent 
Eric H. Holder, Jr., Attorney General 
of the United States

M. Laughlin McDonald 
(lmcdonald@aclu.org)
American Civil Liberties 

Union Foundation 
230 Peachtree Street, N.W.
Suite 1440
Atlanta, Georgia 30303-1227 
(404) 523-2721
Counsel of Record for Respondent-Intei 
Bobby Pierson, Willie Goldsmith, Sr., 
Mary Paxton-Lee, Kenneth Dukes, and 
The Alabama State Conference of the 
National Association for the 
Advancement of Colored People, Inc.

Debo P. Adegbile 
(dadegbile@naacpldf.org)
NAACP Legal Defense & Educational 

Fund, Inc.
99 Hudson Street, 16th Floor 
New York, New York 10013 
(212) 965-2200 
Counsel of Record for 
Respondent-Intervenors 
Earl Cunningham, Harry Jones, 
Albert Jones, Ernest Montgomery, 
Anthony Vines, and William Walker

Jon M. Greenbaum 
(jgreenbaum@lawyerscommittee.org) 
Lawyers’ Committee for 

Civil Rights Under Law 
1401 New York Avenue, N.W.
Suite 400
Washington, D.C. 20005 
(202) 662-8315 
Counsel of Record for 
Respondent-Intervenor 
Bobby Lee Harris

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