Callwood v. Jones Petition for Writ of Certiorari

    No. 12-96

In  T h e

Jsmpreme (ttmtri af tire 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 o l d e r , Attorney General of the United 
States, et al.,

Respondents.

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

District of Columbia Circuit

BRIEF OF REPS. F. JAMES SENSENBRENNER, 
JR., JOHN CONYERS, JR., STEVE CHABOT, 
JERROLD NADLER, MELVIN L. WATT, AND 

ROBERT C. SCOTT AS AM ICI CURIAE IN 
SUPPORT OF RESPONDENTS

Kevin K. Russell 
G o l d st e in  &

Ru s s e l l , P.C.
5225 Wisconsin Ave., NW 
Suite 404
Washington, DC 20015

Pamela S. Karlan 
Counsel o f Record 

Jeffrey L. Fisher 
St a n fo r d  La w  Sch o o l  

Su p r e m e  C ou rt  
L it ig a t io n  C linic  

559 Nathan Abbott Way 
Stanford, CA 94305 
(650) 725-4851 
karlan@stanford. edu

W ilson-Ep e s  Printing Co., Inc. -  (202)789-0096 -  Wash ingto n , d . C. 20002



TABLE OF CONTENTS

TABLE OF AUTHORITIES......................................... iii
INTEREST OF AMICI CURIAE...................................1
SUMMARY OF ARGUMENT........................................2
ARGUMENT.....................................................................3
I. The VRA Responds To A Century Of

Ineffective Protection For Minority Suffrage..... 3
II. The Legislative History Of The 2006

Reauthorization Shows That Congress
Considered And Responded To Extensive
Evidence In Deciding To Reauthorize
Section 5.....................................................................9
A. Congress Paid Careful Attention To This

Court’s Decisions Throughout The 
Reauthorization Process................................. 11

B. The 2006 Reauthorization Rests On An
Extensive Record Showing Both The 
Continuing Need For Section 5 And Its 
Effectiveness.....................................................12

C. Congress Has Carefully Tailored The
VRA To Respect States’ Interests During 
Each Reauthorization......................................21

D. The 2006 Reauthorization Reflected A
Bipartisan Consensus And Received 
Significant Support From Covered 
Jurisdictions......................................................27



11

III. The VRA Regulates The Political Process, 
Voting, and Race — Areas Where Congress 
Acts At The Height Of Its Powers And Merits 
Special Deference From This Court.....................30
A. The Constitution Grants Congress Broad

Powers To Pass Legislation Protecting 
Racial Minorities............................................. 30

B. The Constitution Grants Congress
Special Authority To Safeguard 
Fundamental Rights........................................32

C. The Elections Clause Recognizes An 
Especially Robust Role For Congress In 
Regulating Federal Elections And 
Undercuts Any Tenth Amendment-Based 
Facial Challenge To The Voting Rights
A ct ....................................................................33

CONCLUSION.............................................................38



I l l

TABLE OF AUTHORITIES

Cases
Alden v. M aine,

527 U.S. 706 (1999)...................................................23
Allen v. State Bd. o f Elections,

393 U.S. 544(1969)...................................................14
B artlett v. Strickland,

556 U.S. 1 (2 0 0 9 ).........................................................9
C ity o f Boerne v. Flores,

521 U.S. 507 (1997)......................................11, 13,31
C ity o f Rome v. United States,

446 U.S. 156 (1980)........................................8, 12, 38
Civil Rights Cases,

109 U.S. 3(1883)..........................................................5
Colegrove v. Green,

328 U.S. 549(1946)............................................ 7, 37
Cook v. Gralike,

531 U.S. 510 (2001)............................................33, 35
Crawford v. Marion Cnty. Bd. o f  Elections,

553 U.S. 181 (2008)............................................ 12, 36
E x parte Clarke,

100 U.S. 399 (1879)................................................... 34
E x parte Siebold,

100 U.S. 371 (1879)................................................... 34
F oster v. Love,

522 U.S. 67(1997)......................................................35
Fullilove v. Klutznick,

448 U.S. 448 (1980)....................................................10



IV

Garcia v. San Antonio M etro. Transit Auth.,
469 U.S. 528 (1985)................................................... 29

Georgia v. Ashcroft,
539 U.S. 461 (2003)................................................... 29

Giles v. Harris,
189 U.S. 475 (1903)......................................................7

G regory v. Ashcroft,
501 U.S. 452 (1991)................................................... 35

G rutter v. Bollinger,
539 U.S. 306 (2003)................................................... 25

Guinn v. United States,
238 U.S. 347(1915)..................................................... 6

H arper v. Va. State Bd. o f Elections,
383 U.S. 663(1966)................................................... 32

In re Coy,
127 U.S. 731 (1888)................................................... 35

Johnson v. California,
543 U.S. 499 (2005)................................................... 31

Kram er v. Union Free Sch. Dist.,
395 U.S. 621 (1969)................................................... 32

Lane v. Wilson,
307 U.S. 268 (1939)..................................................... 6

Luther v. Borden,
48 U.S. 1 (1849)..........................................................37

M orris v. G ressette,
432 U.S. 491 (1977)................................................... 21

N at’l  F ed’n oflndep. Bus. v. Sebelius,
132 S. Ct. 2566 (2012)...............................................35

Nev. D ep’t o f Human Res. v. Hibbs,
538 U.S. 721 (2003)................................................... 12



V

Nixon v. Herndon,
273 U.S. 536 (1927)..................................................... 6

Nixon v. Shrink Mo. Gov’t PAC,
528 U.S. 377 (2000)................................................... 37

Nw. Austin Mun. Util. Dist. No. 1 v. Holder,
557 U.S. 193 (2009)........................................9, 23, 28

Roudebush v. Hartke,
405 U.S. 15 (1972)......................................................33

Sm iley v. Holm,
285 U.S. 355 (1932)............................................33, 34

Smith v. Allwright,
321 U.S. 649 (1944)......................................................6

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

Tennessee v. Lane,
541 U.S. 509 (2003)............................................12, 32

Terry v. Adams,
345 U.S. 461 (1953)..................................................... 6

Turner Broad. Sys. v. FCC,
512 U.S. 622 (1994)....................................................10

U.S. Term Lim its, Inc. v. Thornton,
514 U.S. 779(1995)................................................... 35

United States v. Avery,
80 U.S. 251 (1871)........................................................5

United States v. Cruikshank,
92 U.S. 542(1875)........................................................5

United States v. Georgia,
546 U.S. 151 (2006)................................................... 32

United States v. Gradwell,
243 U.S. 476 (1917)................................................... 33



VI

United S tates v. Reese,
92U.S. 214(1875)........................................................5

United States v. Salerno,
481 U.S. 739 (1987)................................................... 36

1Seth v. Jubelirer,
541 U.S. 267 (2004)............................................ 34, 37

W alters v. N at’lA ss ’n o f Radiation Survivors,
473 U.S. 305 (1985)....................................................10

Wash. State Grange v. Wash. State Republican 
Party, 552 U.S. 442 (2008)........................................36

Woods v. Cloyd W. M iller Co.,
333 U.S. 138(1948)................................................... 35

Yick Wo v. Hopkins,
118 U.S. 356(1886)............................................7, 32

Constitutional Provisions
U.S. Const, art. I, § 4 ........................................... passim
U.S. Const, art. IV, § 4 ................................................ 37
U.S. Const, amend X IV .......................................passim
U.S. CONST, amend. X V ........................................passim

Statutes
42 U.S.C. § 1973b(a)..................................................... 23
42 U.S.C. § 1973b(a)(7)................................................. 25
42 U.S.C. § 1973b(a)(8)................................................. 24
42 U.S.C. § 1973c.................................................. passim
Apportionment Act of 1842, 5 Stat. 49 1 .................... 34
Pub. L. No. 91-285, 84 Stat. 314 (1970).................... 27
Pub. L. No. 94-73, 89 Stat. 402 (1975)...................... 27
Pub. L. No. 97-205, 96 Stat. 131 (1982).................... 27



V ll

Pub. L. No. 109-246, 120 Stat. 577 (2006)................24

Regulations
28 C.F.R. § 51................................................................ 22
28 C.F.R. pt. 51, app.....................................................36

Legislative Materials
51 CONG. Rec. 6555 (1890)............................................5
152 Cong. Rec. H5131

(daily ed. July 13, 2006).................................. passim
152 C o n g . Rec. S7949 (daily ed. July 20, 2006)...... 16
C o n g . G l o b e , 42d C o n g ., 2d S e s s . 525 (1872)........ 30
H. Amdt. 1183................................................................ 25
H. A m d t . 1184................................................................ 24
H. A m d t . 1186................................................................ 26
H.R. Rep. No. 109-478 (2006).............................. passim
H.R. REP. No. 89-439 (1965).........................................13
H.R. Rep. No. 91-397 (1969).........................................14
H.R. Rep. No. 94-196 (1975).........................................14
H.R. R e p . No. 97-227 (1981).............................8, 15, 21
S. Rep. NO. 97-417 (1982)........................................8, 15
Extension o f the Voting Rights A ct: Hearings 

B efore the Subcomm. on Civil & 
Constitutional Rights o f the H. Comm, on the
Judiciary, 97th Cong. 17 (1981).............................15

H earings on H.R. 6400 B efore Subcomm. No. 5  
o f the H. Comm, on the Judiciary, 89th Cong.
(1965)..........................................................................13



V l l l

H earings on S. 1564 B efore the S. Comm, on the
Judiciary, 89th Cong. (1965).................................. 13

Rep. Watt Comments on Introduction o f  
Bicameral/Bipartisan Voting Righ ts A ct 
Reauthorization Bill, U.S. FED. NEWS, May 2,
2006............................................................................. 27

Speaker H astert Comments on Reauthorization 
o f Voting Rights Act, U.S. Fed. News, July 13,
2006............................................................................. 28

To Exam ine the Im pact and E ffectiveness o f the 
Voting Righ ts A ct: H earing B efore the 
Subcomm. on the Constitution o f the 
H. Comm, on the Judiciary,
109th Cong. (2005)...................................... 17, 20, 23

Voting Rights A ct: Evidence o f Continued N eed: 
H earing B efore the Subcomm. on the 
Constitution o f the H. Comm, on the 
Judiciary, 109th Cong. (2006)........................passim

Voting Rights A ct: Section 5  o f the A ct—
H istory, Scope, and Purpose: H earing B efore 
the Subcomm. on the Constitution o f the H.
Comm, on the Judiciary, 109th Cong. (2005). 17, 20

Voting Rights A ct: Section 5 — Preclearance 
Standards: H earing B efore the Subcomm. on 
the Constitution o f the H. Comm, on the 
Judiciary, 109th Cong. (2005)................................ 15

Voting Rights A ct: Sections 6 & 8 — The Federal 
Exam iner and Observer Program: H earing 
B efore the Subcomm. on the Constitution o f 
the H. Comm, on the Judiciary, 109th Cong.
(2005)..........................................................................24



IX

Other Authorities
A d e g b il e , D e b o  P ., V o t in g  R ig h t s  in  

L o u is ia n a , 1982-2006 (2006).................................. 18
Althouse, Ann, Vanguard States, Laggard 

States: Federalism  and Constitutional Rights,
152 U. PA. L. R e v . 1745 (2004)...............................24

A m . C iv il  L ib e r t ie s  U n i o n , V o t in g  R ig h t s  
Pr o j e c t , T h e  C a s e  f o r  E x t e n d i n g  a n d  
A m e n d i n g  t h e  V o t in g  R ig h t s  A c t

(2006)............................................................. 16, 17, 18
Christopher, Warren M., The Constitutionality 

o f the Voting Rights A ct o f1965, 18 STAN. L.
Rev. 1 (1965)...................................................... 6, 7, 8

Davidson, Chandler, The Voting R ights A ct: A  
B rief H istory, in CONTROVERSIES IN MINORITY 
VOTING 7 (Bernard Grofman & Chandler 
Davidson eds., 1992)..............................................5, 8

Devins, Neal, Congressional Factfinding and the 
Scope o f Judicial Review : A Prelim inary 
Analysis, 50 DUKE L.J. 1169 (2001).........................11

E l y , J o h n  H a r t , O n  C o n s t it u t io n a l  G r o u n d  
(1996)............................................................................. 7

K e n g l e , R o b e r t , V o t in g  R ig h t s  in  G e o r g ia , 
1982-2006, A  R e p o r t  OF THE 
R e n e w T h e V R A .O r g  (2006)..............................17, 18

K e y s s a r , A l e x a n d e r , T h e  R ig h t  t o  V o t e  
(2000)....................................................................... 5, 6

K o u s s e r , J. M o r g a n , C o l o r b l in d  In j u s t ic e  
(1999).........................................................................5 ,6

Kousser, J. Morgan, The Strange, Ironic Career 
o f Section 5  o f the Voting Rights Act, 1965- 
2007, 86 T e x . L. R e v . 667 (2008).............................. 22



X

L a n d s b e r g , B r ia n  K ., F r e e  a t  L a s t  t o  V o t e

(2007)............................................................................. 8
Lane, Charles, The Day Freedom Died (2008)........5
McConnell, Michael W., Institutions and 

Interpretations: A Critique o/City of Boerne 
v. Flores, 111 HARV. L. R e v . 153 (1997)...................30

McDonald, Laughlin, Racial Fairness: Why 
Shouldn’t I t Apply to Section 5 o f the Voting 
Rights Act?, 21 S t e t s o n  L. R e v . 847 (1992)............ 23

Pitts, Michael J., L et’s N ot Call the Whole 
Thing  O ff Just Yet: A Response to Samuel 
Issacharoffs Suggestion to Scuttle Section 5  
o f the Voting Rights Act, 84 N e b . L. R e v . 605 
(2005)...........................................................................20

Posner, Mark, The Real Story Behind the 
Justice D epartm ent’s  Im plem entation o f 
Section 5  o f the VRA: Vigorous Enforcem ent,
as Intended by Congress, 1 Duke J. CONST. L.
& PUB. POL’Y 79 (2006)....................................... 21, 22

Rouff, John C. & Herbert E. Buhl, III, Voting 
Rights in South Carolina: 1982-2006 (2006).... 19

W oodward, C. Vann, The Strange Career of 
Jim Crow (3d ed. 1974) 7



INTEREST OF AM ICI CURIAE1

Am ici curiae are Members of the House 
Committee on the Judiciary and were the bipartisan 
leadership of the Committee and its Subcommittee 
having jurisdiction over constitutional and federal 
civil rights matters at the time of the 2006 
reauthorization of the Voting Rights Act. They 
include: Rep. F. James Sensenbrenner, Jr. (R-WI), 
then Chairman of the Committee; Rep. John Conyers, 
Jr. (D-MI), then Ranking Member of the Committee; 
Rep. Steve Chabot (R-OH), then Chairman of the 
Subcommittee on the Constitution; Rep. Jerrold 
Nadler (D-NY), then Ranking Member of the 
Subcommittee; Rep. Melvin Watt (D-NC), then 
Member of the Subcommittee and Chairman of the 
Congressional Black Caucus; and Rep. Robert C. 
Scott (D-VA), then Member of the Subcommittee and 
Chairman of the Civil Rights Taskforce of the 
Congressional Asian Pacific American Caucus.

Am ici played a major role in the passage of the 
Fannie Lou Hamer, Rosa Parks, and Coretta Scott 
King Voting Rights Act Reauthorization and 
Amendments Act of 2006, Pub. L. No. 109-246, 120 
Stat. 577, and are deeply interested in its continued 
vitality.

1 Pursuant to Rule 37.6, amici state that no counsel for a 
party authored this brief in whole or in part. Nor did anyone 
other than counsel fund the preparation or submission of this 
brief. Letters reflecting the consent of the parties have been 
filed with the Clerk.



2

Am ici represent a combined experience of over 
150 years in Congress. All am ici were directly and 
substantively involved in the hearings and the 
Committee processes that led to the 2006 
reauthorization. Am ici sought to “ensure that all 
aspects of the right to vote are protected, including 
the right to cast a meaningful ballot.” H.R. Rep. No. 
109-478, at 6 (2006) (Committee Statement on the 
Right to Vote and the Voting Rights Act of 1965).

Am ici have an institutional interest in defending 
Congress’s powers under Section 5 of the Fourteenth 
Amendment, Section 2 of the Fifteenth Amendment, 
and the Elections Clause of Article I, Section 4, to 
enact appropriate legislation protecting the right to 
vote. After conducting extensive hearings, and based 
on a voluminous record, am ici concluded that a 
reauthorization of Section 5 was necessary to fulfill 
their constitutional responsibilities and to ensure 
that minority citizens have the “ability to fully 
participate in the electoral process.” H.R. Rep. No . 
109-478, supra, at 6.

SUMMARY OF ARGUMENT
The Voting Rights Act of 1965 (VRA) represents 

the first successful response to nearly a century of 
minority disenfranchisement. Congress enacted the 
VRA in direct response to evidence of pervasive 
efforts by southern states to deny blacks the right to 
vote. It has been the single most effective tool in 
combating discrimination in voting.

The 2006 reauthorization of Section 5 of the VRA 
continues the work of guaranteeing minority citizens 
the right to participate fully in the electoral process. 
That reauthorization is a model exercise of



3
Congress’s unique ability to legislate in complex 
areas. The overwhelming, bipartisan decision to 
reauthorize the VRA, which drew support from 
covered and non-covered jurisdictions alike, should be 
upheld by this Court under any standard.

The extensive record before Congress 
demonstrates the VRA’s success in rolling back a 
century of disenfranchisement. But it also 
demonstrates the continued need for Section 5 to 
block covered jurisdictions’ implementation of new 
discriminatory voting rules. Congress responded by 
tailoring the Act to respect states’ independence and 
to ensure that the VRA imposes no unnecessary 
burdens.

The sufficiency of the record is reinforced by the 
subject matter. This Court has recognized that 
Congress acts at the height of its powers when it 
legislates to regulate the concerns at which the VRA 
is aimed: racial discrimination, infringement of 
fundamental rights, and elections. When Congress 
exercises its powers at the intersection of these three 
concerns -  as it did here -  this Court should defer to 
Congress’s considered judgment.

ARGUMENT
I. The VRA Responds To A Century Of 

Ineffective Protection For Minority Suffrage.
The Fourteenth and Fifteenth Amendments 

confer broad powers on Congress to effectuate the 
rights they provide. Both during Reconstruction and 
in passing the VRA, Congress enforced those 
Amendments through legislation combatting the



disenfranchisement and political exclusion of 
minority citizens.

As history shows, this is not the first occasion on 
which this Court has faced claims, like those 
petitioner tries to advance, see  Petr. Br. 24-33, that 
times have changed. The success of Reconstruction- 
era legislation also led to arguments that federal 
protection was no longer necessary. This Court 
agreed, setting off a century-long campaign by 
southern states to disenfranchise minorities and 
nullify federal efforts to remedy that discrimination. 
The VRA has provided the only subsequent effective 
response to voting discrimination. Nonetheless, the 
work of Section 5 is not yet complete.

1. During Reconstruction, Congress successfully 
deployed its Fourteenth and Fifteenth Amendment 
powers to protect minority suffrage. Those 
Amendments empower Congress to pass legislation to 
“effectuate the constitutional prohibition against 
racial discrimination in voting.” South Carolina v. 
Katzenbach, 383 U.S. 301, 326 (1966); see also infra 
Part III (discussing the scope of congressional 
enforcement powers). In 1870, Congress passed the 
Enforcement Act, making “it a crime for public 
officers and private persons to obstruct exercise of the 
right to vote.” Katzenbach, 383 U.S. at 310. A year 
later, Congress expanded the Act to provide for 
federal supervision of elections. Id.

Congress’s aggressive enforcement of voting 
rights produced widespread black suffrage. During 
the early years of Reconstruction, “about two-thirds 
of eligible black males cast ballots in presidential and 
gubernatorial contests.” Chandler Davidson, The

4



5
Voting Rights A ct: A B rief H istory, in
C o n t r o v e r s ie s  in  M in o r it y  V o t in g  7, 10 (Bernard 
Grofman & Chandler Davidson eds., 1992). Racially 
motivated violence during elections declined 
dramatically. ALEXANDER KEYSSAR, T h e  RIGHT TO 
V o t e  106 (2000).

2. Believing the same rosy assurances petitioner 
now offers -  that there was no reason to believe that 
discrimination had been “hibernating for two 
generations,” Petr. Br. 39 -  this Court responded 
overoptimistically. Persuaded that black citizens 
“ha[d] shaken off the inseparable concomitants” of 
slavery, The Civil R ights Cases, 109 U.S. 3, 25 
(1883), this Court construed the Enforcement Act to 
reach only a small subset of the conduct interfering 
with minority suffrage, see, e .g , United States v. 
Cruikshank, 92 U.S. 542 (1875); United States v. 
Reese, 92 U.S. 214 (1875); United States v. Avery, 80 
U.S. 251 (1871). See generally CHARLES La n e , T h e  
D a y  F r e e d o m  D ie d  (2008).

In the wake of these decisions, southern states 
began to “nullif[y]” the First Reconstruction. 51 
CONG. Rec. 6555 (1890) (statement of Rep. Jonathan 
Rowell).2 States reorganized voting precincts and 
closed polling places to obstruct black voters. 
KEYSSAR, supra, at 105. They imposed residency 
requirements, poll taxes, and literacy tests, created 
complex voter registration systems, and strengthened 
criminal laws, all with the aim of disenfranchising

2 Quoted in J. MORGAN KOUSSER, COLORBIND INJUSTICE 24  
(19 99 ).



6
black voters. Katzenbach, 383 U.S. at 310-11; 
KEYSSAR, supra, at 111-12. And they redrew 
congressional district boundaries to minimize 
minority political power. KOUSSER, supra, at 26-31. 
Contrary to petitioner’s view, “so-called ‘second 
generation’ tactics like intentional vote dilution are 
in fact decades-old forms of gamesmanship.” Pet. 
App. 28a.

Black political participation plummeted. In 
Mississippi, after 1890, less than 9000 of 147,000 
voting-age black citizens remained registered to vote. 
KEYSSAR, supra, at 114. In Louisiana, where blacks 
had once constituted 44% of the electorate, by 1920 
they cast less than 1% of the votes. Warren M. 
Christopher, The Constitutionality o f  the Voting 
Rights A ct o f 1965, 18 STAN. L. Rev. 1, 2 (1965). In 
Georgia, as late as 1940, less than 5% of eligible 
black citizens were registered.

3. Although this Court attempted to defend the 
right to vote, it was unable to combat “the variety 
and persistence” of laws disenfranchising minority 
citizens. Katzenbach, 383 U.S. at 311. For instance, 
although this Court first struck down Texas’s white 
primary in 1927 in Nixon v. Herndon, 273 U.S. 536, 
blacks remained excluded until this Court’s decisions 
decades later in Smith v. Allwright, 321 U.S. 649 
(1944), and Terry v. Adams, 345 U.S. 461 (1953). 
Similarly, in Guinn v. United States, 238 U.S. 347 
(1915), this Court struck down Oklahoma’s 
grandfather clause, only to see the state perpetuate 
the clause’s effects until Lane v. Wilson, 307 U.S. 268 
(1939).



7

Because the right to vote is “preservative of all 
rights,” Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886), 
minority citizens suffered discrimination in other 
arenas as well. In particular, this Court’s inability to 
protect minority suffrage resulted in a “strengthening 
of the segregation code[s].” C. VANN WOODWARD, THE 
S t r a n g e  C a r e e r  o f  J im  C r o w  115 (3d ed. 1974). To  
give one striking example, Chief Justice Warren later 
suggested that Brown v. Board o f Education “would 
have been unnecessary” if the South had been fairly 
apportioned before 1954. JOHN HART ELY, O n  
C o n s t it u t io n a l  G r o u n d  4 (1996).

4. Recognizing its limited ability to protect 
minority citizens, this Court directed plaintiffs to 
seek relief from Congress. In Giles v. Harris, 189 
U.S. 475 (1903), it instructed a black citizen from 
Alabama to seek protection not from the courts but 
from the “legislative and political department of the 
government of the United States,” id. at 488. Years 
later, faced with a malapportionment claim, this 
Court similarly directed the plaintiffs to “invoke the 
ample power of Congress.” Colegrove v. Green, 328 
U.S. 549, 556 (1946) (plurality opinion).

5. Congress’s initial responses were ineffective. 
The 1957 and 1960 Civil Rights Acts empowered the 
Department of Justice (DOJ) to bring suit on behalf 
of individuals. Christopher, supra, at 4, 5. In 
response, southern states “merely switched to 
discriminatory devices not covered by the federal 
decrees.” Katzenbach, 383 U.S. at 314.

Moreover, “case-by-case adjudication,” even with 
the Government as plaintiff, “proved too ponderous a 
method to remedy voting discrimination.” C ity o f



Rome v. United States, 446 U.S. 156, 174 (1980); see  
H.R. R e p . N o . 97-227, at 3-4 (1981); S. R e p . N o . 97- 
417, at 5 (1982). Between 1957 and 1963, these suits 
secured registration for only 6000 black citizens. 
Christopher, supra, at 6.

6. The VRA successfully responded to these 
problems: Section 5 crafted effective prophylactic 
administrative and judicial relief. BRIAN K. 
La n d s b e r g , F r e e  a t  L a s t  t o  V o t e  170, 180-82 
(2007). Its preclearance requirement ensured that 
states could not perpetuate disenfranchisement 
through new techniques. It placed responsibility for 
identifying changes on jurisdictions and for 
overseeing the protection of voting rights within the 
Executive Branch, rather than placing the burden of 
challenging unfair practices entirely on 
disenfranchised and disadvantaged citizens.

The VRA’s adoption of prophylactic remedies 
resuscitated effective enforcement of the 
Reconstruction Amendments. “The Justice 
Department estimated that in the five years after 
[the VRA’s] passage, almost as many blacks 
registered [to vote] in Alabama, Mississippi, Georgia, 
Louisiana, North Carolina and South Carolina as in 
the entire century before 1965.” Davidson, supra, at 
21.

Moreover, during both the 1982 and 2006 
reauthorization processes, Congress concluded that 
Section 5 continued to play a critical role in 
preventing minority disenfranchisement. Contrary 
to petitioner’s denial that covered jurisdictions 
continue to engage in “gamesmanship,” Petr. Br. 28, 
43, Congress concluded that Section 5 has helped to

8



9
deter, detect, and prohibit a wide range of voting 
laws and procedures that would otherwise have 
deprived minorities of their voting power. See infra 
pp. 11-22 (discussing the evidence supporting these 
conclusions).

As this Court reaffirmed, however, “Much 
remains to be done to ensure that citizens of all races 
have equal opportunity to share and participate in 
our democratic processes.” B artlett v. Strickland, 
556 U.S. 1, 25 (2009). Section 5 continues to play a 
major role in combating discrimination.

II. The Legislative History Of The 2006 
Reauthorization Shows That Congress 
Considered And Responded To Extensive 
Evidence In Deciding To Reauthorize 
Section 5.

Perhaps no statute in American history has been 
the subject of more sustained consideration by 
Congress than the VRA. See 152 CONG. Rec. H5143 
(daily ed. July 13, 2006) (statement of Rep. 
Sensenbrenner) (the House Judiciary Committee 
record was “one of the most extensive considerations 
of any piece of legislation that the United States 
Congress has dealt with in the 2714 years that I have 
been honored to serve as a Member of this body”). 
Indeed, Congress “amassed a sizable record.” Nw. 
Austin Mun. Util. D ist. No. 1 v. Holder, 557 U.S. 193, 
205 (2009); see  Pet. App. 24a, 47a (Congress “heard 
analysis and opinions by experts on all sides of the 
issue” and acted only after “assembling and 
analyzing an extensive record.”); id. 266a (“Congress 
approached its task seriously and with great care.” 
(internal quotation marks omitted)).



1 0

This Court has recognized that Congress 
possesses special expertise in gathering and 
analyzing the large amounts of information essential 
to well-informed policy determinations. See W alters 
v. N a tl A ss’n o f Radiation Survivors, 473 U.S. 305, 
330 n.12 (1985) (“When Congress makes findings on 
essentially factual issues such as these, those 
findings are of course entitled to a great deal of 
deference, inasmuch as Congress is an institution 
better equipped to amass and evaluate the vast 
amounts of data bearing on such an issue.”); see also, 
e.g ., Turner Broad. Sys. v. FCC, 512 U.S. 622, 665-66 
(1994) (same). This expertise stems from Congress’s 
ability to go beyond the facts in individual lawsuits. 
See, e.g., Fullilove v. Klutznick, 448 U.S. 448, 502-03 
(1980) (Powell, J., concurring) (Congress’s “special 
attribute as a legislative body lies in its broader 
mission to investigate and consider all facts and 
opinions that may be relevant to the resolution of an 
issue” (emphasis added)).

Moreover, particularly when it comes to 
questions involving the political process, legislation 
can be informed in valuable ways by Members’ own 
extensive experiences. Members gain knowledge not 
only through their direct experiences in running for 
office, but also through wide-ranging contacts with 
constituents and Executive Branch officials. Finally, 
geographic diversity among its Members ensures that 
Congress is able to consider regional differences and 
state interests when crafting legislation. Neal 
Devins, Congressional Factfinding and the Scope o f 
Judicial Review : A Prelim inary Analysis, 50 DUKE 
L.J. 1169, 1179 (2001).



1 1

All these abilities are evident in Congress’s 
consideration of whether to reauthorize Section 5. 
Contrary to petitioner’s suggestions, the voluminous 
record compiled by Congress during the 2006 
reauthorization fully supports Congress’s decision. 
In addition, the reauthorization process reflects a 
widespread, bipartisan consensus, supported by 
affected jurisdictions. House Judiciary Committee 
Members from covered jurisdictions were active 
participants in shaping and supporting the 2006 
reauthorization.

A. Congress Paid Careful Attention To This 
Court’s Decisions Throughout The 
Reauthorization Process.

Prior to the 2006 reauthorization, House 
leadership and staff reviewed this Court’s recent 
decisions regarding the appropriate scope of 
congressional enforcement powers. See H.R. Rep. No. 
109-478, at 54-56 (2006). Congress was well aware of 
the standards articulated in C ity o f Boerne v. Flores, 
521 U.S. 507 (1997), and its progeny. It understood 
the need both to develop a complete record before 
acting and to tailor its response to that record to 
ensure that its legislation was “congruent and 
proportional.” Testimony from numerous witnesses 
about this Court’s guidance helped inform the House 
Judiciary Committee in assembling a strong 
legislative record during the VRA reauthorization.

Congress correctly concluded that the record 
supporting reauthorization “far exceeds” the records 
this Court found sufficient in both Nevada 
D epartm ent o f Human R esources v. Hibbs, 538 U.S. 
721 (2003), and Tennessee v. Lane, 541 U.S. 509



(2004).3 H.R. R e p . N o . 109-478, supra, at 57. In fact, 
the 2006 record includes exactly the kind of specific 
evidence of intentional discrimination that the 
dissenters found missing in those cases. Hibbs, 538 
U.S. at 745-49 (Kennedy, J., dissenting); Lane, 541 
U.S. at 541-44 (Rehnquist, C.J., dissenting). 
Moreover, the 2006 record is comparable in both its 
thoroughness and the quality of supporting evidence 
to the legislative records this Court found adequate 
to sustain earlier versions of the VRA. See C ity o f 
Rome v. United States, 446 U.S. 156 (1980); South 
Carolina v. Katzenbach, 383 U.S. 301 (1966).

B. The 2006 Reauthorization Rests On An 
Extensive Record Showing Both The 
Continuing Need For Section 5 And Its 
Effectiveness.

The 2006 reauthorization process occurred 
against the backdrop of Congress’s forty years of 
experience in crafting and reconsidering the VRA. 
Each time Congress considered the need for Section 5 
-  in 1965, 1970, 1975, 1982, and 2006 -  it developed 
and carefully studied a massive record before 
deciding how best to refine the Act.

1 2

3 The 2006 record was also far more extensive than the 
record this Court recently found sufficient to support the State 
of Indiana’s decision to adopt a voter identification requirement 
in Crawford v. Marion County Board o f Elections, 553 U.S. 181 
(2008). There, this Court found the State’s interest in 
enhancing the integrity of the electoral process adequate to 
uphold the identification requirement where “[t]he record 
contain [ed] no evidence of any such fraud actually occurring in 
Indiana at any time in its history.” Id. at 194 (opinion of 
Stevens, J., joined by Roberts, C.J. & Kennedy, J.).



13
This Court has repeatedly recognized the quality 

of that legislative process. In Katzenbach, this Court 
emphasized the “voluminous legislative history” 
underlying the VRA as a basis for upholding it. 383 
U.S. at 308. Similarly, in C ity o f Boerne, this Court 
recognized that the record of racial discrimination 
compiled by Congress during the reauthorizations 
provided detailed evidence of the continued need for 
the VRA. It pointed to the VRA as a model for 
Congress’s exercise of its enforcement powers. See 
C ity o f Boerne, 521 U.S. at 530. Congress’s 
conclusion in 2006 that the VRA remains necessary 
rests on an equally careful process.

1. During the initial authorization in 1965, 
Congress had before it a record of more than ninety- 
five years of widespread racial discrimination in the 
electoral process. H.R. Rep. No. 109-478, supra, at 6- 
7; H.R. Rep. N o. 89-439, at 7 (1965). Congress 
conducted nine days of hearings, with a total of sixty- 
seven witnesses, and held three days of floor debate 
in the House and twenty-six in the Senate. Hearings 
on H.R. 6400 B efore Subcomm. No. 5 o f the H. Comm, 
on the Judiciary, 89th Cong. (1965); H earings on S. 
1564 B efore the S. Comm, on the Judiciary, 89th 
Cong. (1965). Testimony from Members of Congress, 
the Attorney General, members of the U.S. 
Commission on Civil Rights, state and local officials, 
private citizens, and representatives from voting 
rights organizations led Congress to conclude that 
“widespread violations of the 15th Amendment” 
provided “ample justification for congressional 
action.” H.R. Rep. No. 89-439, supra, at 19. 
Ultimately, Congress approved the Act by wide 
margins in both Houses.



14
In 1975, in a thorough review of Section 5,4 

Congress again compiled a persuasive record showing 
the persistence of problems the VRA was intended to 
combat. During thirteen days of hearings in the 
House and seven in the Senate, Congress heard from 
a wide variety of witnesses, again including Members 
of Congress, the DOJ, state and local officials, private 
citizens, and voting rights organizations. H.R. Rep. 
NO. 94-196, at 3-4 (1975). On the basis of evidence in 
the nearly 3000-page record documenting significant 
ongoing discrimination, Congress concluded that 
there were still “continuing and significant 
deficiencies” in minority political participation and 
thus voted to reauthorize Section 5 for another seven 
years. Id. at 7.

Congress’s 1982 reauthorization process was 
equally comprehensive, again supporting its
conclusion that Section 5 remained necessary and 
appropriate legislation. The House held eighteen 
days of hearings, including regional hearings in 
covered jurisdictions, and heard testimony from 156 
witnesses, assembling a record of over 2800 pages. 
H.R. Rep. No. 97-227, at 2 (1981). Similarly, the 
Senate, during nine days of hearings, heard from 
fifty-one witnesses and amassed a record of over 2900

4 In 1970, Congress reviewed the progress that had been 
made under the VRA and extended Section 5’s preclearance 
requirement for an additional five years. H.R. Rep. No . 91-397 
(1969). Because covered jurisdictions had not truly begun to 
comply with Section 5’s submission requirement until after 
Allen v. State Board o f Elections, 393 U.S. 544 (1969), the 1970 
record contained a relatively limited discussion of the need for, 
and effectiveness of, the preclearance process.



15

pages. S. REP. No. 97-417, at 3 (1982), reprinted in 
1982 U.S.C.C.A.N. 177, 180. The evidence of 
discrimination echoed Congress’s findings in 1975 
that covered jurisdictions had continued to devise 
means to suppress effective minority participation. 
Extension o f the Voting Rights A ct: H earings Before 
the Suhcomm. on Civil & Constitutional Rights o f the 
H. Comm, on the Judiciary, 97th Cong. 17 (1981). 
Congress responded by extending Section 5 for an 
additional twenty-five years.

2. The 2006 reauthorization process was similarly 
rigorous. Congress again engaged in extensive 
factfinding and analysis before concluding that the 
VRA remains necessary today. Voting Rights A ct: 
Section 5  -  Preclearance Standards: H earing B efore 
the Suhcomm. on the Constitution o f the H. Comm, 
on the Judiciary, 109th Cong. 67 (2005). The House 
Judiciary Committee alone conducted twelve 
hearings and heard from forty-six witnesses 
representing a breadth of interests ranging from 
federal and state executive officials to civil rights 
leaders. H.R. R e p . N o . 109-478, at 11-12. The 
Committee’s record totaled over 12,000 pages. 152 
CONG. R e c . H5136 (daily ed. July 13, 2006) 
(statement of Rep. Chabot). The Senate Judiciary 
Committee held nine hearings and also heard from 
forty-six witnesses, creating a combined record of 
over 15,000 pages. The extensive record provides 
detailed evidence of Congress’s thorough 
reconsideration of the Act and confirms the clear 
need for reauthorization. Congress approved the 
twenty-five-year extension by wide margins of 390-33 
in the House and 98-0 in the Senate. 152 CONG. REC.



16
H5207 (daily ed. July 13, 2006); 152 CONG. R e c . 
S8012 (daily ed. July 20, 2006).

The record confirms that although the V R A  is one 
of the most successful civil rights statutes in 
American history, its “work is not yet complete.” 152 
Cong. Rec. H5143-44 (daily ed. July 13, 2006) 
(statement of Rep. Sensenbrenner). The House 
Judiciary Committee requested, received, and 
incorporated into its record eleven reports 
documenting the continuation of discrimination after 
1982 in covered jurisdictions. See Voting R ights A ct: 
Evidence o f Continued N eed: H earing B efore the 
Subcomm. on the Constitution o f the H. Comm, on 
the Judiciary, 109th Cong. (2006) [hereinafter H R. 
H earing 109-103]. Each report describes numerous 
examples of discrimination that prompted Section 5 
objections or litigation. One of the reports, for 
example, detailed nearly 300 cases of voting 
discrimination. VOTING RIGHTS PROJECT, A m . CIVIL
L ib e r t ie s  U n i o n , T h e  C a s e  f o r  E x t e n d i n g  a n d  
A m e n d i n g  t h e  V o t in g  R ig h t s  A c t , (2006), reprinted  
in H.R. H earing 109-103, supra, at 378 [hereinafter 
ACLU REPORT]. The vast evidence of ongoing 
discrimination in the record shows that covered 
jurisdictions continue to deny minority voters full 
and effective participation in the political process 
with a variety of techniques, including discriminatory 
annexations, de-annexations, and consolidations; 
redistricting plans; and polling relocations. H.R. R e p . 
No. 109-478, supra-, H R . H earing 109-103, supra-, 
Voting Rights A ct: Section 5  o f the A ct -  H istory, 
Scope, and Purpose: H earing B efore the Subcomm. on 
the Constitution o f the H. Comm, on the Judiciary, 
109th Cong. (2005) [hereinafter H.R. H earing 109-



17

79]; To Exam ine the Im pact and E ffectiveness o f the 
Voting Rights A ct: H earing B efore the Subcomm. on 
the Constitution o f the H. Comm, on the Judiciary, 
109th Cong. (2005) [hereinafter H R . H earing 109-70].

Petitioner’s account of the reauthorization 
process blindly ignores the hundreds of accounts of 
continuing discrimination in covered jurisdictions 
contained in the congressional record. These 
numerous examples reveal both that covered 
jurisdictions continue to adopt discriminatory voting 
changes and attempt to evade enforcement of Section 
5, and confirm that such attempts are more than just 
“fragmentary.” Petr. Br. 39.

The 2006 congressional record is replete with 
examples of discrimination. Limited space constrains 
am ici to highlighting only a few representative 
examples of the persistent discrimination Congress 
confronted.

Polling Place Changes. In 1992, Johnson 
County, Georgia, sought to relocate a voting precinct 
from the county courthouse to the private American 
Legion Hall, which had a well-known reputation for 
racial hostility and exclusion. ACLU REPORT, supra, 
at 337; Robert Kengle, VOTING RIGHTS IN GEORGIA, 
1982-2006, A  REPORT OF THE R e n e w T h e V R A .O r G 
app. 1, xxviii, reprinted in H R . H earing 109-103, 
supra, at 1499. In its objection letter, the DOJ 
concluded that the polling place change had the effect 
of “discouraging black voters from turning out to 
vote.” ACLU R e p o r t , supra, at 337.

In 1994, at the request of white voters, officials in 
Sunset, Louisiana, agreed to move a polling place 
from the community center to a different building



that had been a site of historical racial 
discrimination. Debo P. Adegbile, VOTING RIGHTS IN 
LOUISIANA 1982-2006, at 31, reprinted in H R . 
H earing 109-103, supra, at 1592. The officials held 
no hearings, sought no input from the black 
community, and did not advertise the change in any 
way. Id. Minority leaders in the town did not learn 
of the proposed change until notified by the DOJ 
during the Section 5 preclearance process. Id.

In 1995, Jenkins County, Georgia, attempted to 
relocate a polling site from a location in a 
predominantly black community easily accessible by 
foot to one in a predominantly white neighborhood 
outside the city limits, and not easily accessible. 
ACLU R e p o r t , supra, at 330-31; Kengle, supra, at 
app. 1, xxviii. The Attorney General objected to the 
change, noting that the county’s proffered reasons for 
the location change were merely “pretextual” and 
were designed to “thwart recent black political 
participation.” ACLU REPORT, supra, at 331.

Similarly, in 2003 Waller County, Texas, tried to 
restrict early voting at a polling site near Prairie 
View A&M, a historically black college, after two 
black students decided to run for county office. N a t ’L 
C o m m ’n  o n  t h e  V o t in g  R ig h t s  A c t , P r o t e c t in g  
M in o r it y  V o t e r s : T h e  V o t in g  R ig h t s  A c t  a t  W o r k  
1982-2005, at 65-66 (2006), reprinted in H.R. H earing 
109-103, supra, at 104 [hereinafter N a t ’L COMM’N 
REPORT], Prairie View’s students comprised 20% of 
the county’s voting population. Thus, the county’s 
restriction on voting directly reduced the relative 
voting strength of black citizens.

18



19

Discriminatory Annexations. In 1990, the city 
of Monroe, Louisiana, attempted to annex white 
suburban wards to its city court jurisdiction. 
Adegbile, supra, at 23. In its Section 5 objection 
letter, the DOJ noted that the wards in question had 
been eligible for annexation since 1970, but that 
there had been no interest in annexing them until 
the first African-American candidate ran for Monroe 
city court. Id. In 2003, the DOJ interposed an 
objection to a proposed annexation in the town of 
North, South Carolina, because the town had been 
racially selective in its response to both formal and 
informal annexation requests. John C. Ruoff & 
Herbert E. Buhl III, VOTING RIGHTS IN SOUTH 
CAROLINA: 1982-2006, at 26 (2006), reprinted in H R . 
H earing 109-103, supra, at 1928. In rejecting the 
proposed annexation, the Attorney General concluded 
that “race appears to be an overriding factor in how 
the town responds to annexation requests.” Id.

Discriminatory Reductions. In 1991, Concordia 
Parish, Louisiana, attempted to exclude minority 
voters by reducing the size of its police jury from nine 
to seven seats in order to eliminate one majority 
black district. Adegbile, supra, at 24. Although the 
parish claimed that the reduction was a cost-saving 
measure, the DOJ’s objection noted that the parish 
had been unconcerned about saving money until an 
influx of African-American residents converted the 
district from a majority-white district to a majority- 
black district. Id.

3. The 2006 record also reveals that between 
1982 and 2004, the rate of DOJ objections remained 
almost constant when compared to the period 
between 1965 and the 1982 reauthorization, with



2 0

more than 600 objections being interposed. H.R. 
H earing 109-103, supra, at 172. Congress 
recognized, and this Court found in C ity o f Rome, 446 
U.S. at 181, that the number and nature of objections 
interposed by the Attorney General indicate the 
continued need for preclearance. J. Gerald Hebert, 
An A ssessm ent o f the Bailout Provisions o f the 
Voting Rights Act, at 12, reprinted in H.R. H earing 
109-103, supra, at 2664. Congress also found that 
between 1982 and 2003, covered jurisdictions 
withdrew more than 200 proposed changes after 
initially seeking preclearance under Section 5. Nat’L 
Comm’N REPORT, supra, at 58. Jurisdictions routinely 
abandon proposed discriminatory voting changes 
when a “Request for More Information” by the 
Attorney General signals that preclearance is 
unlikely. These withdrawal letters highlight 
hundreds of discriminatory voting changes that 
would have been  implemented in the absence of 
Section 5.

Finally, the record reveals that Section 5 deters 
covered jurisdictions from proposing discriminatory 
voting changes in the first place. See H R . H earing 
109-79, supra, at 4 (statement of Rep. Chabot) 
(noting the “thousands of proposed plans that never 
came to fruition because of section 5”); H.R. H earing 
109-70, supra, at 17; see also Michael J. Pitts, L et’s 
N ot Call the Whole Thing O ff Just Yet: A  R esponse to 
Samuel Issacharoffs Suggestion to Scuttle Section 5  
o f the Voting Rights Act, 84 Neb. L. Rev. 605, 613-14 
(2005). The preclearance requirement encourages 
jurisdictions to make voting choices that benefit all 
voters and helps to ensure that officials more 
carefully evaluate and modify voting changes that



2 1

might otherwise be retrogressive before they are 
submitted for preclearance.

C. Congress Has Carefully Tailored The VRA 
To Respect States’ Interests During Each 
Reauthorization.

The VRA represents an appropriate congressional 
response to the problem of pervasive racial 
discrimination in the electoral process. The record 
shows that in creating an administrative 
preclearance process, modifying the “bailout” process, 
and enacting a clear sunset provision, Congress has 
taken seriously both its responsibility to enforce the 
Fourteenth and Fifteenth Amendments and the need 
to respect local autonomy.

1. Congress initially developed the administrative 
preclearance regime as a speedy and efficient 
alternative to requiring that covered jurisdictions 
seek declaratory judgments before implementing 
voting-related changes. H.R. Rep. No. 97-227, supra-, 
see also M orris v. G ressette, 432 U.S. 491, 502-05 
(1977); Mark Posner, The R eal Story Behind the 
Justice D epartm ent’s  Im plem entation o f Section 5  o f 
the VRA: Vigorous Enforcem ent, as Intended by 
Congress, 1 DUKE J. CONST. L. & PUB. POL’Y 79, 154- 
55 (2006). By requiring the Attorney General to 
make administrative preclearance decisions within a 
sharply limited time frame,5 Congress recognized

5 The Attorney General has sixty days to interpose an 
objection to a submitted voting change, 28 C.F.R. § 51.1(a)(2), 
with the possibility of one sixty-day extension, id. § 51.37. 
Absent a timely objection, the change is automatically 
precleared. See 42 U.S.C. § 1973c(a); 28 C.F.R. § 51.42.



22
covered jurisdictions’ strong interest in implementing 
legitimate new voting provisions quickly. See 
Morgan Kousser, The Strange, Ironic Career o f  
Section 5  o f  the Voting Rights Act, 1965-2007, 86 
T e x . L. R e v . 667, 681-82 (2008); Posner, supra, at 91- 
92. Petitioner points to no evidence in the record 
suggesting that it has ever faced any logistical 
burden in seeking preclearance for a covered change.

In reauthorizing Section 5, Congress also 
concluded that, contrary to petitioner’s assertion, 
Petr. Br. 33, Section 2 litigation alone provides an 
“inadequate remedy” for minority voters. H.R. R e p . 
No. 109-478, supra, at 57. Congress found that 
“case-by-case enforcement alone is not enough to 
combat efforts of certain States and jurisdictions to 
discriminate against minority citizens in the electoral 
process.” Id. Recognizing that Section 2 has helped 
achieve important progress for minority voters in 
covered jurisdictions, Congress concluded that 
Section 5 is necessary to prevent “backsliding from 
the gains previously won” under both Section 2 and 
Section 5. Id. at 53. Moreover, Congress recognized 
that placing the burden on affected individuals to 
challenge discriminatory voting changes would leave 
many of those changes unchallenged, in part because 
the high costs and time constraints of litigation might 
discourage individuals from bringing suit. See H.R. 
Hearing 109-70, supra, at 42 (noting that the cost of 
private litigation under Section 2 may “run in the 
millions of dollars”).

In addition, by placing the VRA’s enforcement 
powers in the politically accountable Executive 
Branch, Congress took appropriate account of covered 
jurisdictions’ interests in avoiding suits by individual



23
litigants. Cf. Alden v. Maine, 527 U.S. 706, 759-60 
(1999) (explaining that enforcement by the United 
States does not infringe state sovereignty).

2. In 2006, Congress reassessed several 
provisions of the VRA to determine whether 
conditions within covered jurisdictions required 
modifications. Having already modified the 
“precisely tailored” bailout provision, 42 U.S.C. 
§ 1973b(a), in 1982, Congress concluded in 2006 that 
that provision was effectively crafted to create 
incentives for covered jurisdictions to eliminate 
discriminatory features of their electoral systems, see 
Laughlin McDonald, Racial Fairness: Why Shouldn’t 
It Apply to Section 5  o f  the Voting Rights Act?, 21 
St e t s o n  L. R e v . 847, 851 (1992). Moreover, the 
provision ensured that Section 5 remains focused on 
those areas where oversight is necessary to prevent 
and respond to voting rights abuses. This Court’s 
decision in Northwest Austin adopting a liberal 
reading of the bailout provision, see 557 U.S. at 211 
(holding that “all political subdivisions -  not only 
those described in § 14(c)(2) [of the Act, defining the 
term ‘political subdivision’] -  are eligible to file a 
bailout suit”), reinforces the flexible nature of the 
coverage formula.

When Congress concluded that a particular 
component of the VRA was no longer necessary, it did 
not hesitate to repeal that provision. As part of the 
same reauthorization process that extended 
preclearance, Congress also reevaluated the need for 
federal examiners in covered jurisdictions. In 
response to evidence that examiners had been used 
only sparingly in recent years, Congress concluded 
that the examiner provisions had outlived their



usefulness. See Voting Rights Act: Sections 6 & 8 -  
The Federal Examiner and Observer Program: 
Hearing Before the Subcomm. on the Constitution o f  
the H. Comm, on the Judiciary, 109th Cong. 5 (2005) 
(statement of Rep. Scott). Accordingly, Congress 
repealed Sections 6, 7, and 9 of the VRA in their 
entirety. See Pub. L. No. 109-246 § 3(c), 120 Stat. 
580 (2006); see also H.R. Rep. No. 109-478, supra, at 
91-92.

Finally, during each reauthorization, Congress 
has included a sunset provision for Section 5, 42 
U.S.C. § 1973b(a)(8) rather than making it 
permanent. This decision ensures that Congress will 
periodically reevaluate the need for the VRA. See 
Ann Althouse, Vanguard States, Laggard States: 
Federalism and Constitutional Rights, 152 U. Pa . L. 
R e v . 1745, 1817 (2004).

The 2006 legislative record shows that Congress 
carefully considered what would constitute an 
appropriate reauthorization period. Representative 
Louie Gohmert (R-TX) proposed an amendment on 
the House floor, H. A m d t . 1184 (offered July 13, 
2006), that would have limited reauthorization to ten 
years. The amendment was defeated by a vote of 
288-134. 152 CONG. R e c . H5205 (daily ed. July 13, 
2006). In opposing the amendment, Representative 
Sensenbrenner emphasized the importance of 
capturing more than one redistricting cycle to provide 
Congress with sufficient evidence to reassess Section 
5. Id. at H5187. Thus, Congress decided to include a 
twenty-five-year sunset provision in the Act. 42 
U.S.C. § 1973b(a)(8). Contrary to petitioner’s claim 
that the provision somehow allows Congress to retain 
preclearance until “the crack of doom,” Petr. Br. 39

24



(quoting Pet. App. 94a), the very purpose of a sunset 
provision is to confine Congress’s power to a defined 
and limited time period. Both the record and this 
Court’s guidance support the conclusion that 
eliminating the vestiges of historical racial 
discrimination may well take this amount of time. 
See Grutter v. Bollinger, 539 U.S. 306, 343 (2003) 
(“We expect that 25 years from now, the use of racial 
preferences will no longer be necessary to further the 
interest approved today.”). Just as significantly, 
Congress expressly declared that it would reconsider 
Section 5 in fifteen years to ensure that the provision 
was still both necessary and effective. 42 U.S.C. 
§ 1973b(a)(7).

3. In addition to carefully fine-tuning Section 5, 
Congress also considered but rejected proposed 
amendments to the VRA that would have altered 
Section 5’s coverage formula and bailout procedures. 
Congress’s consideration of each of these proposed 
amendments shows its thorough and deliberative 
examination of Section 5 during the 2006 
reauthorization.

An amendment offered by Representative 
Charles Norwood (R-GA), H. A m d t . 1183 (offered July 
13, 2006), would have replaced Section 5’s “very 
carefully” crafted coverage formula, see 152 CONG. 
R e c . H5185 (daily ed. July 13, 2006) (statement of 
Rep. Conyers), with a rolling test for Section 5 
coverage. Opponents of the amendment explained 
that the existing coverage formula, combined with 
the context-sensitive bailout process, struck a more 
appropriate balance between remedying and 
deterring discrimination in jurisdictions with a 
pervasive history of discrimination on the one hand

25



and releasing jurisdictions from coverage if Section 5 
was no longer necessary on the other. The 
amendment was defeated by a vote of 318-96. Id. at 
H5204-05.

Another amendment proposed by Representative 
Lynn Westmoreland (R-GA), H. A m d t . 1186 (offered 
July 13, 2006), would have provided for an expedited, 
proactive bailout procedure placing a significant new 
burden on the DOJ. Representative Sensenbrenner 
explained that the amendment would require DOJ 
officials to travel to nearly 900 jurisdictions each year 
to review voluminous voting records and interview 
thousands of individuals to determine whether all of 
the jurisdiction s voting changes were submitted for 
preclearance and that all other bailout criteria had 
been met. See 152 CONG. Rec. H5199 (daily ed. July 
13, 2006) (statement of Rep. Sensenbrenner). Such a 
regime would make the VRA administratively 
ineffective and ultimately disadvantage minority 
voters by frustrating Congress’s goal of continuing to 
target those jurisdictions with a history of entrenched 
voting discrimination. See id. at H5199-200. The 
amendment was defeated by a vote of 302-118 Id at 
H5206-07.

Congress’s thorough consideration of these 
amendments underscores the careful attention that 
Congress has given to Section 5 during each 
reauthorization to ensure that it remains properly 
tailored to protect minority voting rights while 
respecting the interests of covered jurisdictions.

26



D. The 2006 Reauthorization Reflected A 
Bipartisan Consensus And Received
Significant Support From Covered
Jurisdictions.

1. The Voting Rights Act has enjoyed strong 
bipartisan support throughout its history, including 
reauthorization under four Republican Presidents 
and with both Democratic and Republican majorities 
in Congress.6 As Representative Mel Watt (D-NC) 
observed in introducing the 2006 reauthorization bill: 
“It is not a Republican bill, it is not a Democratic bill 
. . . .  [It] is a bipartisan, bicameral bill that unites us 
as a country.” Rep. Watt Comments on Introduction 
o f Bicameral/Bipartisan Voting Rights Act 
Reauthorization Bill, U.S. F e d . N e w s , May 2, 2006, 
available at 2006 WLNR 8232980.

As discussed earlier, in 2006 Congress responded 
to the overwhelming evidence of continuing 
discrimination in the record by considering, but 
ultimately rejecting, several proposed amendments 
that would have weakened the VRA’s protections.

27

6 The 1970 reauthorization occurred under President Nixon 
(Pub. L. No. 91-285, 84 Stat. 314 (signed June 22, 1970)) 
(Democratic majorities in both Houses); the 1975
reauthorization occurred under President Ford (Pub. L. No. 94- 
73, 89 Stat. 402 (signed Aug. 6, 1975)) (Democratic majorities in 
both Houses); the 1982 reauthorization occurred under 
President Reagan (Pub. L. No. 97-205, 96 Stat. 131 (signed June 
29, 1982)) (Democratic majority in House and Republican 
majority in Senate); and the 2006 reauthorization occurred 
under President George W. Bush (Pub. L. No. 109-246, 120 Stat. 
577 (signed July 27, 2006)) (Republican majorities in both 
Houses).



The VRA was ultimately reauthorized with strong 
support from both parties. Former Speaker of the 
House Dennis Hastert (R-IL) praised Congress’s 
bipartisan effort to protect minority voters: “Today, 
Republicans and Democrats have united in a historic 
vote to preserve and protect one of America’s most 
important fundamental rights -  the right to vote.” 
Speaker Hastert Comments on Reauthorization o f  
Voting Rights Act, U.S. F e d . N e w s , July 13, 2006, 
available at 2006 WLNR 12133683. The 390-33 vote 
for passage of the VRA in the House is the largest 
number of votes in favor of passage in the history of 
VRA reauthorization.

2. Petitioner places great emphasis on this 
Court’s observation in Northwest Austin that a 
“departure from the fundamental principle of equal 
sovereignty” requires justification. Petr. Br. 40 
(quoting 557 U.S. at 203). Tellingly, petitioner does 
not acknowledge this Court’s qualification that the 
doctrine of equality among the states “does not bar 
. . . remedies for local evils which have subsequently 
appeared.” Nw. Austin, 557 U.S. at 203 (internal 
quotation marks omitted). Nor does it acknowledge 
that in the 2006 reauthorization -  in sharp contrast 
to the original passage of the Act in 1965 -  Members 
from covered jurisdictions provided broad support for 
continued coverage. Of the 110 representatives from 
covered jurisdictions, ninety voted in favor of 
reauthorization. 152 CONG. Rec. H5204-05 (daily ed. 
July 13, 2006). The 2006 reauthorization thus 
reflects a particularly strong example of this Court’s 
observation in Garcia v. San Antonio Metropolitan 
Transit Authority that “[sjtate sovereign interests . . . 
are more properly protected by procedural safeguards

2 8



29
inherent in the structure of the federal system than 
by judicially created limitations on federal power.” 
469 U.S. 528, 552 (1985); cf. Georgia v. Ashcroft, 539 
U.S. 461, 484 (2003) (“And it is also significant, 
though not dispositive, whether the representatives 
elected from the very districts created and protected 
by the Voting Rights Act support the new [districting] 
plan.”). The Members of Congress most attuned to 
the particular benefits and burdens of Section 5 
struck the balance strongly in favor of 
reauthorization.

3. Moreover, the record contains numerous letters 
from covered states and local government 
organizations both documenting continued 
discrimination and expressing support for 
reauthorization. A coalition of organizations 
including the Council of State Governments, the 
National Conference of State Legislatures, the 
National Association of Secretaries of State, the 
National Association of Counties, the National 
League of Cities, and the U.S. Conference of Mayors 
supported reauthorization as part of the “ongoing 
partnership among all levels of government” needed 
to fully integrate minority voters into the electoral 
process. See 152 CONG. R e c . H5146 (daily ed. July 
13, 2006). Given the wide-ranging and diverse 
support for reauthorization in 2006, this Court 
should defer to Congress’s considered judgment.



III. The VRA Regulates The Political Process, 
Voting, And Race -  Areas Where Congress 
Acts At The Height Of Its Powers And Merits 
Special Deference From This Court.
As this Court has repeatedly recognized, 

Congress is due special deference when it acts to 
protect suspect classes, defend fundamental rights, or 
make inherently political determinations about the 
electoral process. The VRA stands at the intersection 
of this trio of congressional powers, which are 
expressed in the Enforcement Clauses of the 
Fourteenth and Fifteenth Amendments as well as the 
Elections Clause of Article I, § 4, and the Guaranty 
Clause of Article IV, § 4.

A. The Constitution Grants Congress Broad 
Powers To Pass Legislation Protecting 
Racial Minorities.

1. The Constitution expressly grants Congress a 
central role in protecting minority groups against 
racial discrimination. U.S. CONST, amend. XIV, § 5; 
U.S. CONST, amend. XV, § 2. “[T]he remedy for the 
violation of the Fourteenth and Fifteenth 
Amendment was expressly not left to the courts. The 
remedy was legislative . . . .” CONG. GLOBE, 42d 
C o n g ., 2d S e s s . 525 (1872) (statement of Sen. Oliver 
Morton); see also Michael W. McConnell, Institutions 
and Interpretations: A Critique o f  City of Boerne v. 
Flores, 111 H a r v . L. Re v . 153, 194-95 (1997) (“The 
historical record shows that the framers of [the 
Fourteenth Amendment] expected Congress, not the 
Court, to be the primary agent of its 
enforcement. . . . [T]he Court should give respectful 
attention — and probably the presumption of

30



constitutionality -  to the interpretive judgments of 
Congress.”).

2. Accordingly this Court has recognized that 
Congress’s remedial and prophylactic powers are at 
their strongest when it legislates to remedy or 
prevent discrimination against historically 
disadvantaged groups that receive the protections of 
heightened judicial scrutiny. See, e.g., Nev. Dep’t o f 
Human Res. v. Hibbs, 538 U.S. 721, 735-36 (2003). 
Racial minorities are the prototypical example of a 
suspect class under the Fourteenth Amendment, and 
this Court has consistently subjected claims of 
discrimination on the basis of race or ethnicity to the 
strictest scrutiny, even when they involve situations 
(such as prison administration) where this Court 
normally defers to state officials. See Johnson v. 
California, 543 U.S. 499, 515 (2005). Indeed, in 
modern times this Court has never struck down a 
congressional statute protecting the right to vote 
against racial discrimination.

3. The clear purpose of the VRA is to remedy 
ongoing discrimination against racial and ethnic 
minorities who have historically faced widespread 
exclusion from the political process. Despite 
petitioner’s protestation to the contrary, the 2006 
reauthorization fits squarely within Congress’s “wide 
latitude” to enact measures to “remedy or prevent 
unconstitutional actions” against such groups. City 
ofBoerne v. Flores, 521 U.S. 507, 519-20 (1997).

31



B. The Constitution Grants Congress Special 
Authority To Safeguard Fundamental 
Rights.

1. Congress also has broad powers under the 
Reconstruction Amendments to enact legislation 
protecting fundamental rights. This Court has 
recognized that, as with protecting members of 
traditionally suspect classes, Congress’s powers are 
at their greatest when it acts to safeguard 
fundamental liberties. See, e.g., Tennessee v. Lane, 
541 U.S. 509 (2004) (upholding Congress’s abrogation 
of state sovereign immunity under Title II of the 
Americans with Disabilities Act with respect to 
access to the courts); see also United States v. 
Georgia, 546 U.S. 151 (2006) (same with respect to 
fundamental rights under the Eighth Amendment).

2. The right to vote is the quintessential 
fundamental right; indeed, the right to participate in 
the electoral process is a foundational right 
“preservative of all [other] rights.” Yick Wo v. 
Hopkins, 118 U.S. 356, 370 (1886); see also Kramer v. 
Union Free Sch. Dist., 395 U.S. 621, 626 (1969). 
Denial or dilution of the right to vote is subject to 
heightened scrutiny. See Harper v. State Bd. o f  
Elections, 383 U.S. 663 (1966). Thus, Congress is 
acting at the height of its authority when it legislates 
in the VRA to effectuate the constitutional 
prohibition against racial discrimination in voting.” 
South Carolina v. Katzenbach, 383 U.S. 301 325-26 
(1966).

32



33
C. The Elections Clause Recognizes An 

Especially Robust Role For Congress In 
Regulating Federal Elections And 
Undercuts Any Tenth Amendment-Based 
Facial Challenge To The Voting Rights 
Act.

1. The text of the Constitution envisions a special 
role for Congress in regulating elections and 
structuring the political process. The Elections 
Clause grants Congress the authority “at any time” to 
“make or alter” state law governing “[t]he Times, 
Places and Manner of holding Elections for Senators 
and Representatives.” U.S. CONST, art. I, § 4, cl. 1.

This Court has long recognized that the 
“comprehensive words” of the Elections Clause 
“embrace authority to provide a complete code for 
congressional elections, not only as to times and 
places, but in relation to notices, registration, 
supervision of voting, protection of voters, prevention 
of fraud and corrupt practices, counting of votes, 
duties of inspectors and canvassers, and making and 
publication of election returns; in short, to enact the 
numerous requirements as to procedure and 
safeguards which experience shows are necessary in 
order to enforce the fundamental right involved.” 
Smiley v. Holm, 285 U.S. 355, 366-67 (1932); see 
Cook v. Gralike, 531 U.S. 510, 523-24 (2001) (quoting 
Smiley).1 Most recently, in Vieth v. Jubelirer, 541

7 The list of practices that this Court has found within the 
scope of Congress’s Election Clause power is broad indeed. See, 
e.g., Roudebush v. Hartke, 405 U.S. 15, 24-25 (1972) (election 
recounts); United States v. Gradwell, 243 U.S. 476, 483 (1917)



U.S. 267 (2004) (plurality opinion), this Court 
emphasized that in the Elections Clause, the 
Framers conferred on Congress ultimate control over 
even the redistricting process: although state
legislatures may have “the initial power to draw 
districts for federal elections,” the Elections Clause 
permitted Congress to ‘make or alter’ those districts 

if it wished,” id. at 275. The Vieth plurality ’s review 
of the history reflects that since 1842, Congress has, 
among other things, used its power to impose a 
particular theory of representation on the states, 
requiring the use of geographically defined single­
member districts to elect Members of Congress. See 
Apportionment Act of 1842, 5 Stat. 491. And nearly a 
century before this Court imposed parallel 
restrictions as a matter of constitutional law, 
Congress mandated that districts contain equal 
numbers of inhabitants and be composed of compact 
territory. See Vieth, 541 U.S. at 276-77 (plurality 
opinion).

This Court has consistently understood that the 
Elections Clause authorizes Congress to
“supplement” existing state regulations or “substitute 
its own.’ Smiley, 285 U.S. at 366-67. Congress “‘has 
a general supervisory power over the whole subject.’” 
Id. at 367 (quoting Ex parte Siebold, 100 U.S. 371, 
387 (1879)). For over a century, this Court has held 
that Congress’s power to regulate federal elections

34

(process from registration to certification of results); Ex parte 
Clarke, 100 U.S. 399, 404 (1879) (punishing state election 
officers for violation of state duties vis-a-vis congressional 
elections).



35
extends to all aspects of the electoral process 
whenever a federal candidate is on the ballot. See In 
re Coy, 127 U.S. 731, 753-54 (1888).

Finally, with respect to the regulation of federal 
elections, this Court has emphasized how the 
Elections Clause expresses “the Framers’ 
understanding that powers over the election of 
federal officers had to be delegated to, rather than 
reserved by, the States.” U.S. Term Limits, Inc. v. 
Thornton, 514 U.S. 779, 804 (1995); see also Cook, 
531 U.S. at 527 (Kennedy, J., concurring) (stating 
that the Clause “delegates but limited power over 
federal elections to the States”). In other words, 
when it comes to their control over congressional 
elections, the states cannot assert the Tenth 
Amendment to resist congressional regulation: states 
have power over federal elections “but only so far as 
Congress declines to preempt state legislative 
choices.” Foster v. Love, 522 U.S. 67, 69 (1997). 
Petitioner’s reliance on Gregory v. Ashcroft, 501 U.S. 
452 (1991), a Tenth Amendment case that involved 
retirement ages for state-court judges, Petr. Br. 24, is 
thus entirely misplaced.

2. This Court recently reaffirmed the principle 
that “‘the constitutionality of action taken by 
Congress does not depend on recitals of the power 
which it undertakes to exercise.’” N atl Fed’n o f  
Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2598 (2012) 
(quoting Woods v. Cloyd W. Miller Co., 333 U.S. 138, 
144 (1948)). Particularly in light of the fact that 
petitioner presents this Court with only a facial 
challenge against the coverage and preclearance 
provisions of the VRA, see Pet. 12; Pet. App. 11a, 65a, 
its challenge can succeed only if it proves “that no set



of circumstances exists under which the Act would be 
valid,’ i.e., that the law is unconstitutional in all of its 
applications.” Wash. State Grange v. Wash. State 
Republican Party, 552 U.S. 442, 449 (2008) (emphasis 
added) (quoting United States v. Salerno, 481 U.S. 
739, 745 (1987)). But Congress has the power, under 
the Elections Clause and this Court’s consistent 
construction of that Clause, to impose a federal 
review process, like the preclearance requirement, 
with respect to all aspects of the election system 
related to the election of Members of Congress. As 
applied to those elections, petitioner’s challenge is 
unavailing and its invocation of the Tenth 
Amendment, see Petr. Br. i, 17, 23-24, is mistaken. 
For this reason alone, its facial challenge must fail.

Moreover, the coverage formula of Section 4(b) 
and the preclearance requirement of Section 5 do not 
cover only whole states. They also cover more than 
fifty political subdivisions in states that are not 
themselves covered. See 28 C.F.R. pt. 51, app. As 
applied to those jurisdictions, the Voting Rights Act 
does not remotely implicate the “equal sovereignty” 
argument that petitioner invokes, Petr. Br. 40. 
Accordingly, petitioner has not satisfied the “heavy 
burden of persuasion” that plaintiffs bear when they 
seek “relief that would invalidate the statute in all its 
applications.” Crawford v. Marion Cnty. Election 
Bd., 553 U.S. 181, 200 (2008) (opinion of Stevens, J., 
joined by Roberts, C.J. & Kennedy, J.).

3. This Court has also recognized that Congress, 
not the judicial branch, bears the primary 
responsibility for fulfilling the promise embodied in 
the Guarantee Clause that “[t]he United States shall 
guarantee to every State in this Union a Republican

36



37
Form of Government.” U.S. CONST, art. IV, § 4, cl. 1. 
This is because Congress is best equipped to address 
such matters as how to ensure political fairness in 
democratic elections. By contrast, this Court has 
found that “ [i] t is hostile to a democratic system to 
involve the judiciary” in such determinations. 
Colegrove v. Green, 328 U.S. 549, 553-54 (1946) 
(plurality opinion); see also Vieth, 541 U.S. at 281 
(plurality opinion) (treating political gerrymandering 
claims as nonjusticiable due to a lack of “judicially 
discernible and manageable standards for 
adjudicating” them); Luther v. Borden, 48 U.S. 1, 42 
(1849) (stating that enforcement of the guarantee 
clause “rests with Congress”). Consequently, “in the 
field of election regulation, the Court in practice 
defers to empirical legislative judgments.” Nixon v. 
Shrink Mo. Gov’t PAC, 528 U.S. 377, 402 (2000) 
(Breyer, J., concurring).

Deference to Congress is particularly appropriate 
in this context because its Members are more 
intimately involved with and more knowledgeable 
about the electoral process than are the courts. They 
also hail from every political subdivision in the 
Nation and bring to bear local knowledge of the 
effects of racial discrimination on their districts’ 
electoral systems. Therefore, they are best able to 
make choices between competing theories of political 
representation. See Colegrove, 328 U.S. at 556 
(plurality opinion).

4. The 2006 reauthorization rested on a fact- 
based and complex inquiry into the best way to 
address the lingering effects of discrimination on the 
electoral process. The record before Congress left no 
doubt that widespread voting discrimination persists



38
in covered jurisdictions, and the reauthorization 
therefore hinged upon a political judgment regarding 
the proper response. The VRA falls squarely within 
the core of Congress’s unique institutional expertise 
in regulating the political process, and Congress 
properly used this expertise to provide the desired 
political guidance by overwhelmingly reauthorizing 
Section 5 for another twenty-five years.

* * *

In 2006, after meticulous and extended 
consideration, Congress determined that the 
provisions of Section 5 have not yet “outlived their 
usefulness.” City o f Rome v. United States, 446 U.S. 
156, 180 (1980). In making this determination, 
Congress acted at the height of its powers in 
regulating the intersecting areas of voting, race, and 
political rights. Congress’s judgment is therefore 
entitled to substantial deference from this Court. 
Accordingly, as the district court and court of appeals 
properly held, Congress’s decision to extend the VRA 
passes constitutional muster.

CONCLUSION
The judgment of the court of appeals should be 

affirmed.



39

Kevin K. Russell 
G o ldstein  &

Ru sse ll , P.C.
5225 Wisconsin Ave., NW 
Suite 404
Washington, DC 20015

Respectfully submitted,

Pamela S. Karlan 
Counsel o f Record 

Jeffrey L. Fisher 
Stanford  La w  School 

Supreme C ourt 
L itigation  C linic 

559 Nathan Abbott Way 
Stanford, CA 94305 
(650) 725-4851 
karlan@stanford. edu

February 1, 2013





Stanford Law
 School

Suprem e Court Litigation Clinic

m

rD

Via Hand D elivery

February 1, 2013

[—•I * Hon. William K. Suter 
Clerk o f the Court 
Supreme Court of the United States 
1 First Street, NE 
Washington, DC 20543

Crown Quadrangle 
559 Nathan Abbott Way 
Stanford, CA 94305-8610 
Tel 650 724-1900 
Fax 650 723-4426

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

Dear General Suter,

Enclosed for filing, please find forty (40) copies of the Brief for Am ici 
Curiae Representatives F. James Sensenbrenner, Jr., John Conyers, Jr., 
Steve Chabot, Jerrold Nadler, Melvin L. Watt, and Robert C. Scott in
support, of respondents in the above-captioned matter. Certificates of 
compliance and service are also included with this filing.

Please also find enclosed additional copies of the brief, which we 
request that you file-stamp and return to the messenger presenting this filing 
today.

Thank you very much for your time and assistance in this matter.

ruly yours,

Pamela S. Karlan 
Counsel for Amici Curiae
Representatives F. James Sensenbrenner, Jr., et al.

cc: All Counsel

C o m m u n i ty  Law ❖ C r im in a l  D e fe n s e  C y b e r la w  ❖ E n v i ro n m e n ta l  Law  
I m m ig r a n t s ’ R ig h ts  ❖ In te r n a t io n a l  H um an R ig h ts  ❖ O rg a n iz a t io n s  and T ra n s a c t io n s  

S u p re m e  C o u r t  L i t i g a t io n  Youth  and E d u c a t io n  Law P r o je c t



N o. 12-96

In  T h e

Supreme (Emtrt ai tip |Mttttcfr Jitates
S h e l b y  C o u n t y , A l a b a m a ,

v.
Petitioner,

E r ic  H . H o l d e r , J r ., e t  a l .,

Respondents.

On Writ of Certiorari 
to the United States Court of Appeals 

for the District of Columbia Circuit

CERTIFICATE OF SERVICE

The undersigned certifies that she has this 1st day of February 2013, 
caused three copies of the foregoing Brief for Am ici Curiae Representatives 
F. James Sensenbrenner, Jr., John Conyers, Jr., Steve Chabot, Jerrold 
Nadler, Melvin L. Watt, and Robert C. Scott to be served on each of the 
below-named counsel set forth on the following page, by first-class mail, 
postage prepaid. She further certifies that all persons required to be served 
have been served.



SERVICE LIST 
No. 12-96

Shelby County, Alabama, 
Petitioner

v.

Eric H. Holder, Jr., Attorney General 
of the United States, et al., 

Respondents

COUNSEL OF RECORD

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

Counsel o f  Record for Petitioner Shelby County, Alabama

Donald B. Verrilli, Jr.
Solicitor General
United States Department o f Justice 
950 Pennsylvania Avenue, N.W.
Washington, DC 20530-0001 
SupremeCtBriefs@usdoj.gov

Counsel o f Record for Respondent Eric H. Holder, 
Attorney General o f the United States

Debo P. Adegbile
NAACP Legal Defense & Educational Fund, Inc.
99 Hudson Street, 16th Floor 
New York, NY 10013 
dadegbile@naacpldf.org

Counsel o f Record for Respondent-lntervenors 
Earl Cunningham, et al.

1

mailto:brein@wileyrein.com
mailto:SupremeCtBriefs@usdoj.gov
mailto:dadegbile@naacpldf.org


Jon M. Greenbaum
Lawyers’ Committee for Civil Rights Under Law 
1401 New York Avenue, NW, Suite 400 
Washington, DC 20005 
j greenbaum@lawyerscommittee. org

Counsel o f Record for Respondent-Intervenor Bobby Lee Harris 

Laughlin McDonald
American Civil Liberties Union Foundation 
230 Peachtree Street, NW, Suite 1440 
Atlanta, GA 30303-1227 
lmcdonald@aclu.org

Counsel o f Record for Respondent-Intervenors 
Bobby Pierson, Willie Goldsmith, Sr., Mary Paxton-Lee,
Kenneth Dukes, and The Alabama State Conference o f the 
National Association for the Advancement o f Colored People, Inc.

2

mailto:lmcdonald@aclu.org


N o. 12-96

In  T h e

Supreme (Hour! af ilje ptmteh S tates
S h e l b y  C o u n t y , A l a b a m a ,

V.

Petitioner,

E r ic  H . H o l d e r , J r ., e t  a l .,

Respondents.

On Writ of Certiorari 
to the United States Court of Appeals 

for the District of Columbia Circuit

CERTIFICATE OF COMPLIANCE

As required by Supreme Court Rule 33.1(h), I certify that the foregoing 
Brief for Amici Curiae Representatives F. James Sensenbrenner, Jr., 
John Conyers, Jr., Steve CbaboL Jerrold Nadler, Melvin L. Watt, and 
Robert C. Scott contains 0 1 ^ 5  words, excluding those parts of the 
document that are exempted by Supreme Court Rule 33.1(d).

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

Executed on 1 February 2013.

Pamela S. Karlan 
Counsel for Amici Curiae
Representatives F. James Sensenbrenner, et al.