City of Kansas City, Missouri v. WIlliams Brief for Appellees and Cross-Appellants

    No. 17-20030
In the United States Court of Appeals for the Fifth Circuit

ALBERTO PATINO; MARIA MARI; PATRICIA GONZALES; MARIA 
CARMEN MENDOZA; FRANK BORREGO; GABRIEL ROCHA BARRETO; 

RICHARD SERNA; JOSEPH JOHN MARQUEZ, 
Plaintiffs-Appellees

v.
CITY OF PASADENA,

Defendant-Appellan t

On Appeal from the U.S. District Court for the Southern District of Texas,
Houston Division

BRIEF FOR AMICI CURIAE CAMPAIGN LEGAL CENTER, NAACP 
LEGAL DEFENSE AND EDUCATIONAL FUND, INC, AMERICAN CIVIL 
LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION OF TEXAS, 

ASIAN AMERICANS ADVANCING JUSTICE | AAJC, LEAGUE OF 
UNITED LATIN AMERICAN CITIZENS, SOUTHERN COALITION FOR 

SOCIAL JUSTICE, SOUTHERN POVERTY LAW CENTER, TEXAS 
STATE CONFERENCE OF THE NAACP, AND THE VOTING RIGHTS 

INSTITUTE IN SUPPORT OF APPELLEES

Paul M. Smith 
J. Gerald Hebert 
Danielle Lang 
Campaign Legal Center 
1411 K Street NW, Suite 1400 
Washington, DC 20005 
(202) 736-2200

Coty Montag
NAACP Legal Defense and
Educational Fund , Inc.
14441 Street, NW, 10th Floor 
Washington, DC 20005 
(202) 682-1300

Sherrilyn Ifill 
President & Director-Counsel 

Janai N elson 
Christina Swarns 
Leah C. Aden
NAACP Legal Defense and 
Educational Fund, Inc.
40 Rector Street, 5th Floor 
New York, NY 10006 
(212) 965-2200

Counsel for Amici Curiae



SUPPLEMENTAL STATEMENT OF INTERESTED PERSONS

Pursuant to Federal Rule of Appellate Procedure 26.1 and Fifth Circuit Rule 
29.2, amici curiae provide this supplemental statement of interested persons in 
order to fully disclose all the persons and entities as described in the fourth 
sentence of Fifth Circuit Rule 28.2.1 that have an interest in the outcome of this 
case. These representations are made in order that the judges of this Court may 
evaluate possible disqualification or recusal. Amici certify that they are 501(c)(3) 
non-profit corporations. None of the amici has a corporate parent or is owned in 
whole or in part by any publicly held corporation.

Amicus Curiae:
Campaign Legal Center (“CLC”)
NAACP Legal Defense and Educational Fund, Inc. (“LDF”)
American Civil Liberties Union (“ACLU”)
American Civil Liberties Union of Texas (“ACLU Texas”)
Asian Americans Advancing Justice | AAJC 
League of United Latin American Citizens (“LULAC”)
Southern Coalition for Social Justice (“SCSJ”)
Southern Poverty Law Center (“SPLC”)
Texas State Conference of the NAACP (“Texas NAACP”)
The Voting Rights Institute (“VRI”)

Counsel for Amici Curiae:
Paul M. Smith (CLC)
J. Gerald Hebert (CLC)
Danielle Lang (CLC)
Sherrilyn Ifill (LDF)
Janai Nelson (LDF)
Christina Swams (LDF)
Leah C. Aden (LDF)
Coty Montag (LDF)
Dale E. Ho (ACLU)
Sophia Lin Lakin (ACLU)
Rebecca L. Robertson (ACLU Texas)
Edgar Saldivar (ACLU Texas)
Terry Ao Minnis (Asian Americans Advancing Justice | AAJC)
Luis Vera (LULAC)
Anita S. Earls (SCSJ)
Allison J. Riggs (SCSJ)

l



Samuel Brooke (SPLC)
Caren E. Short (SPLC)
Bradford M. Berry (Texas NAACP) 
Gary L. Bledsoe (Texas NAACP) 
Robert S. Notzon (Texas NAACP) 
Jesse L. Gaines (Texas NAACP) 
Patrick Llewellyn (VRI)

Respectfully submitted,

/s/ Danielle Lam  
Danielle Lang

11



TABLE OF CONTENTS

SUPPLEMENTAL STATEMENT OF INTERESTED PERSONS............................i

TABLE OF AUTHORITIES...................................................................................... iv

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

INTRODUCTION AND SUMMARY OF THE ARGUMENT..............................1

ARGUMENT................................................................................................................3

I. Section 3(c) Is A Vital Component Of The Voting Rights A ct......................4

A. Sections 2, 4, and 5..................................................................................4

B. Section 3(c).............................................................................................. 8

C. Section 3(c)’s Bail-in Mechanism Differs Significantly From
Section 4(b)’s Coverage Formula And Thereby Avoids Any 
Constitutional Concerns........................................................................11

II. The City Of Pasadena Was Properly Subjected To Preclearance
Pursuant To Section 3(c)................................................................................. 13

A. The Bail-in Of The City Of Pasadena.................................................. 13

B. Texas’s Statutory Arguments Against Bail-In Are Unavailing.......... 16

III. Section 3(c) Is A Constitutionally Appropriate Means Of Imposing
Preclearance In This Case................................................................................20

A. Section 3(c) Does Not Violate The Equal Sovereignty Principle....... 21

B. Section 3(c) Is An Appropriate Exercise Of Congress’s
Enforcement Authority..........................................................................23

C. Texas’s Constitutional Arguments Are Misguided............................. 26

CONCLUSION...........................................................................................................29

iii



TABLE OF AUTHORITIES

Cases

Ala. Legislative Black Caucus v. Alabama,
135 S. Ct. 1257 (2015)..........................................................................................18

Allen v. City o f Evergreen,
2014 WL 12607819 (S.D. Ala. Jan. 13, 2014)............................................... 9, 12

Allen v. State Bd. o f Elections,
393 U.S. 544(1969).............................................................................................. 5

Blackmoon v. Charles Mix County,
505 F. Supp. 2d 585 (D.S.D. 2007).....................................................................16

City o f Boerne v. Flores,
521 U.S. 507 (1997)..................................................................................20,23,25

City o f Rome v. United States,
446 U.S. 156(1980)................................................................................................ 6

eBay Inc. v. MercExchange, L.L.C.,
547 U.S. 388 (2006)...............................................................................................13

FDIC v. RBS Securities Inc.,
798 F.3d 244 (5th Cir. 2015)................................................................................ 17

Fisher v. University o f Texas at Austin,
136 S.Ct. 2198 (2016).......................................................................................... 25

Hayden v. Pataki,
449 F.3d 305 (2d Cir. 2006) (en banc)................................................................25

Jeffers v. Clinton,
740 F. Supp. 585 (E.D. Ark. 1990)................................................................12, 16

Kimel v. Fla. Bd. o f Regents,
528 U.S. 62 (2000)................................................................................................ 23

Kirkie v. Buffalo County,
2004 U.S. Dist. LEXIS 30960 (D.S.D. Feb. 12, 2004)......................................13

Page(s)

IV



TABLE OF AUTHORITIES
(continued)

Page(s)

LULAC v. Perry,
548 U.S. 399 (2006)..............................................................................................15

McMillan v. Escambia County,
748 F.2d 1037 (5th Cir. 1984)............................................................................. 14

Miller v. Johnson,
515 U.S. 900(1995)...............................................................................................18

N.C. State Conference o f the NAACP v. McCrory,
831 F.3d 204 (4th Cir. 2016)............................................................................... 10

Nevada Dep’t o f Human Resources v. Hibbs,
538 U.S. 721 (2003)........................................................................................ 24,25

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

Perez v. Abbott,
2017 WL 1787454 (W.D. Tex. May 2, 2017).......................................................9

Raney v. Bd. o f Educ. o f Gould Sch. Dist.,
391 U.S. 443 (1968).............................................................................................. 27

Reno v. Bossier Parish Sch. Bd.,
528 U.S. 329 (2000).............................................................................................. 27

Salary v. Wilson,
415 F.2d 467 (5th Cir. 1969)................................................................................27

Sanchez v. Anaya,
Civ. No. 82-0067M (D.N.M. Dec. 17, 1984)............................................... 12, 13

Shelby County, Alabama v. Holder,
133 S. Ct. 2612 (2013).................................................................................. .passim

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

v



Squyres v. Heico Companies, L.L.C.,
782 F.3d 224 (5th Cir. 2015).................................................................................. 3

Tennessee v. Lane,
541 U.S. 509 (2004)................................................................................. 23,24, 25

Thornburg v. Gingles,
478 U.S. 30(1986)...................................................................................................5

United States v. Georgia,
546 U.S. 151 (2006).............................................................................................. 24

United States v. Louisiana,
363 U.S. 1 (1960).................................................................................................. 21

United States v. McRae,
795 F.3d 471 (5th Cir. 2015)..................................................................................3

Veasey v. Abbott,
2017 WL 1315593 (S.D. Tex. Apr. 10, 2017).......................................................9

Veasey v. Abbott,
830 F.3d 216 (5th Cir. 2016) (en banc).............................................. 4, 17, 20, 26

White v. Regester,
412 U.S. 755 (1975)...............................................................................................18

Yick Wo v. Hopkins,
118 U.S. 356 (1886).............................................................................................. 25

Statutes, Rules and Regulations

1 U.S.C. § 1................................................................................................................. 17

42 U.S.C. § 1973c(a).....................................................................................................5

52 U.S.C. § 10301.........................................................................................................4

52 U.S.C. § 10302(c)................................................................................ 8, 12,13,16

52 U.S.C. § 10303(b)................................................................................................... 7

TABLE OF AUTHORITIES
(continued)

Page(s)

vi



TABLE OF AUTHORITIES
(continued)

Page(s)

52 U.S.C. § 10304(a)................................................................................................... 5

Fed. R. App. P. 29(c)(5)................................................................................................1

Other Authorities

Travis Crum, Note, The Voting Rights A ct’s Secret Weapon: Pocket 
Trigger Litigation and Dynamic Preclearance, 119 Yale L.J. 1992 
(2010)..............................................................................................................passim

Heather K. Gerken, Understanding the Right to an Undiluted Vote,
114 Harv. L. Rev. 1663 (2001)...............................................................................19

Second Amended Complaint, Greater Birmingham Ministries v.
Alabama, No. 2:15-cv-02193 (N.D. Ala. Dec. 6, 2016), ECF No.
112..................................................................................................................10

Joint Center for Political & Economic Studies, 50 Years o f the Voting 
Rights Act: The State o f Race in Politics 4 (2015),
https://goo.gl/05asG5.............................................................................................. 6

Leah M. Litman, Inventing Equal Sovereignty, 114 Mich. L. Rev.
1207 (2016)............................................................................................................21

NAACP LDF, Democracy Diminished: State and Local Threats to 
Voting Po.st-Shelby County, Alabama v. Holder (2016), 
https://goo.gl/sg5NFu............................................................................................10

Antonin Scalia & Bryan A. Gamer, Reading Law: Interpretation o f
Legal Texts 129 (2012)..........................................................................................17

Complaint, Terrebonne Parish Branch NAACP v. Jindal,
No. 314-cv-69 (M.D. La. Feb. 3, 2014), ECF No. 1 ...........................................10

1 Voting Rights Act: Evidence o f Continued Need, Hearing Before the 
Subcommittee on the Constitution o f the H. Comm, on the 
Judiciary, 109th Cong. 97 (2006)...........................................................................6

vii



INTEREST OF AMICI CURIAE

Amici curiae are non-profit organizations that have a demonstrated interest 

in protecting the rights of voters under the Voting Rights Act of 1965 (“VRA”) and 

the Reconstruction Amendments, and, in pursuing that interest, frequently litigate 

in the area of election law and voting rights law. A list of amici curiae appears in 

the Appendix. The parties consent to the filing of this brief.

INTRODUCTION AND SUMMARY OF THE ARGUMENT

Prior to the Supreme Court’s 2013 decision in Shelby County invalidating

the VRA’s coverage formula, the City of Pasadena (“City”) was a “covered 

jurisdiction” that was required to “preclear” all voting changes with federal 

authorities. See Shelby County, Alabama v. Holder, 133 S. Ct. 2612 (2013). This 

preclearance process ensured that jurisdictions with a history of racial 

discrimination in voting were not permitted to enforce voting changes that would 

have a retrogressive effect on minority voters. Almost immediately after Shelby 

County, the City moved to change its redistricting map from eight single-member 

districts to a hybrid map with six single-member districts and two at-large districts. 

As described in considerable detail by the district court, the City’s adoption of the 

dilutive redistricting map, which occurred against the backdrop of surging Latino

Pursuant to Fed. R. App. P. 29(c)(5), amici state that no party’s counsel 
authored this brief either in whole or in part, and further, that no party or party’s 
counsel, or person or entity other than amici, amici's members, and their counsel, 
contributed money intended to fund preparing or submitting this brief.

1



population growth, was done with the intent to discriminate against Latino voters. 

As a remedy and to prevent and deter future violations, the district court invoked 

Section 3(c) of the VRA—which authorizes courts to place States and political 

subdivisions under preclearance in response to a violation of the Fourteenth or 

Fifteenth Amendment—to “bail-in” the City until 2023.

The bail-in of the City was both statutorily and constitutionally appropriate. 

The City’s enactment of an intentionally discriminatory redistricting plan 

immediately after it was no longer required to obtain federal preclearance review is 

a quintessential example of when bail-in is appropriate. Section 3(c), moreover, is 

a proper exercise of Congress’s enforcement authority under the Reconstruction 

Amendments. Unlike the coverage formula, Section 3(c) is triggered only upon a 

judicial finding of a contemporary constitutional violation. Section 3(c), therefore, 

does not raise the same constitutional concerns about reliance on “decades-old 

data” and “equal sovereignty” that the Supreme Court identified in invalidating the 

coverage formula in Shelby County. Id. at 2627, 2618. Instead, Section 3(c) uses 

the uniquely effective preclearance process to prevent voting discrimination before 

it occurs—in a manner that is custom tailored to redress an underlying 

constitutional violation.

2



ARGUMENT

The City does not contest the district court’s remedy of preclearance under

Section 3(c); it challenges only the predicate finding of intentional discrimination.

2
City Br. 47-51. Any argument as to the appropriateness of the bail-in remedy is 

therefore waived. See, e.g., United States v. McRae, 795 F.3d 471, 479 (5th Cir. 

2015) (“[A]n argument not raised ... in the appellant’s opening brief is waived.”). 

However, the State of Texas, as amicus curiae, has questioned the appropriateness 

of the bail-in remedy. Because Texas is not a party to this case, this Court need 

not—indeed, should not—address those arguments. See Squyres v. Heico 

Companies, L.L.C., 782 F.3d 224, 233 n.5 (5th Cir. 2015) (declining to consider 

arguments raised solely in amicus brief). But given the potential importance of this 

case in setting precedent on this question of first impression in this Circuit, amici 

submit this brief to clarify when Section 3(c) relief is warranted and to clarify its 

constitutionality.

“The Voting Rights Act of 1965 reflects Congress’ firm intention to rid the 

country of racial discrimination in voting,” South Carolina v. Katzenbach, 383 

U.S. 301, 315 (1966), and its “historic accomplishments ... are undeniable.” 

Northwest Austin Mun. Util. Dist. No. One v. Holder, 557 U.S. 193, 201 (2009).

2
Amici agree with and assume the validity of the district court’s well- 

documented conclusion that the City violated the Fourteenth Amendment by 
intentionally diluting the votes of Latino voters.

3



Although the Supreme Court determined in 2013 that the VRA’s coverage formula 

was no longer justified by “current conditions,” Shelby County, 133 S. Ct. at 2631, 

thus immobilizing a vital protection against racial discrimination in voting, this 

case involves a distinct statutory provision for preclearance. Section 3(c) 

authorizes preclearance based on contemporary and adjudicated constitutional 

violations rather than on “decades-old data” contained in a coverage formula. Id. at 

2627. It is a preclearance mechanism that is triggered by “current conditions.” Id. 

at 2631.

I. Section 3(c) Is A Vital Component Of The Voting Rights Act

“[Djesigned by Congress to banish the blight of racial discrimination in

voting,” the VRA represents Congress’s most “inventive” enforcement of the 

Reconstruction Amendments. Katzenbach, 383 U.S. at 308, 327. In enacting the 

VRA, Congress developed an interlocking statutory scheme designed to root out 

explicit—as well as “ingenious,” id. at 309—methods of vote denial or dilution. 

Thus, Section 3(c) must be understood within the framework of the VRA’s 

complimentary and reinforcing provisions.

A. Sections 2,4, and 5

Section 2 of the VRA is a permanent and nationwide ban on racial 

discrimination in voting. 52 U.S.C. § 10301. Plaintiffs can establish a Section 2 

violation by showing either discriminatory intent or effect. See Veasey v. Abbott,

4



830 F.3d 216, 229 (5th Cir. 2016) (en banc). Section 2 claims can be brought on a 

theory of vote denial, see id., or, as here, vote dilution, see ROA.2984; Thornburg 

v. Gingles, 478 U.S. 30, 46-49 (1986).

Section 5 applied only in certain “covered jurisdictions” and “provided that 

no change in voting procedures could take effect until it was approved [that is, 

precleared] by federal authorities in Washington, D.C.—either the Attorney 

General or a court of three judges.” Shelby County, 133 S. Ct. at 2620. 

Preclearance was “granted only if the change neither ‘ha[d] the purpose nor 

[would] have the effect of denying or abridging the right to vote on account of race 

or color.’” Northwest Austin, 557 U.S. at 198 (quoting 42 U.S.C. § 1973c(a), now 

codified at 52 U.S.C. § 10304(a)). Section 5 applied broadly to voting changes, 

including “ballot-access rights” as well as the drawing of district lines. Id.; see also 

Allen v. State Bd. o f Elections, 393 U.S. 544, 564-66 (1969).

Preclearance was specifically designed to prophylactically address the 

particular harms of voting discrimination and avoid the unique challenges of 

protracted voting rights litigation. As the Court in Shelby County explained, 

preclearance was a congressional response to a world wherein “litigation remained 

slow and expensive, and the States came up with new ways to discriminate as soon 

as existing [laws] were struck down.” 133 S. Ct. at 2620. This interminably slow, 

whack-a-mole approach to discrimination was particularly problematic in the

5



voting rights arena because, once discriminatory voting changes are in effect for an 

election, the harmed voters can rarely, if ever, be made whole. 1 Voting Rights Act: 

Evidence o f Continued Need, Hearing Before the Subcommittee on the Constitution 

o f the H. Comm, on the Judiciary, 109th Cong. 97 (2006) (noting that harmed 

voters cannot change past electoral outcomes, and the benefits of incumbency 

adhere to those elected under discriminatory procedures). Thus, Section 5’s 

preclearance process “‘shift[ed] the advantage of time and inertia’” from those who 

enact discriminatory laws to the victims of discrimination. City o f Rome v. United 

States, 446 U.S. 156, 182 (1980) (quoting Katzenbach, 383 U.S. at 309). By 

stopping discriminatory laws before they were implemented, preclearance under 

Section 5 was responsible for much of our Nation’s uncontested progress in 

battling discrimination in voting and improving meaningful access to the franchise 

for racial minorities. See Joint Center for Political & Economic Studies, 50 Years 

o f the Voting Rights Act: The State o f Race in Politics 4 (2015),

https://goo.gl/05asG5 (“Since 1965, ... African Americans went from holding 

fewer than 1,000 offices nationwide to over 10,000.”).

Section 4(b) supplied the “coverage formula” for determining the 

jurisdictions to which Section 5 applied. Under Section 4(b), a jurisdiction was 

covered if, during the 1964, 1968, or 1972 presidential election, it (1) maintained 

an illegal “test or device,” such as a literacy test, and (2) had voter turnout below

6

https://goo.gl/05asG5


fifty percent. 52 U.S.C. § 10303(b). In crafting the coverage formula and adopting 

these proxies for identifying egregious racial discrimination in voting, Congress 

“limited its attention to the geographic areas where immediate action seemed

necessary.” Katzenbach, 383 U.S. at 328.

Sections 4(b) and 5 were temporary provisions that were reauthorized by 

large and bipartisan majorities in Congress in 1970, 1975, 1982, and 2006. Shelby 

County, 133 S. Ct. at 2620. The 1965, 1970, 1975, and 1982 enactments were all 

upheld by the Supreme Court. See id. at 2620-21 (collecting cases). The Court, 

however, invalidated the 2006 reauthorization of Section 4(b) in Shelby County.

There, the Court stated that “the [Voting Rights Act’s] ‘current burdens’ 

must be justified by ‘current needs,’ and any ‘disparate geographic coverage’ must 

be ‘sufficiently related to the problem that it targets.’” 133 S. Ct. at 2627 (quoting 

Northwest Austin, 557 U.S. at 203). Applying that standard, the Court held that 

Section 4(b)’s coverage formula was “based on 40-year old facts having no logical 

relation to the present day” and was therefore an unconstitutional “basis for 

subjecting jurisdictions to preclearance.” Id. at 2629, 2631. The Court did not 

strike down Section 5, see id. at 2631, and invited Congress to draft another

3
Once a jurisdiction was covered by Section 4(b), it could seek “bail-out” of 

the preclearance regime by showing that it had not engaged in discrimination in 
voting for ten years, in accordance with criteria enumerated in Section 4(a). See 
Shelby County, 133 S. Ct. at 2620.

7



formula for preclearance, suggesting that another method would be constitutional. 

See id.; see also infra at p.22. Section 3(c) was left undisturbed by Shelby County 

and remains a viable tool for preclearance.

B. Section 3(c)

Included as a permanent provision in the original VRA, “Section[] 3 ... 

strengthen[ed] existing procedures for attacking voting discrimination by means of 

litigation” and targeted “pockets of voting discrimination” missed by Section 

4(b)’s coverage formula. Katzenbach, 383 U.S. at 316, 308. Section 3(c) provides, 

in relevant part, that:

If in any proceeding instituted by the Attorney General or an 
aggrieved person under any statute to enforce the voting guarantees of 
the fourteenth or fifteenth amendment in any State or political 
subdivision the court finds that violations of the fourteenth or fifteenth 
amendment justifying equitable relief have occurred within the 
territory of such State or political subdivision, the court, in addition to 
such relief as it may grant, shall retain jurisdiction for such period as it 
may deem appropriate and during such period no [voting change] 
different from that in force or effect at the time the proceeding was 
commenced shall be enforced unless and until the court [or the 
Attorney General] finds that such [voting change] does not have the 
purpose and will not have the effect of denying or abridging the right 
to vote on account of race or color, or in contravention of the voting 
guarantees set forth in section 10303(f)(2) of this title ....

52 U.S.C. § 10302(c).

Section 3(c) thus authorizes federal courts to place States and political 

subdivisions that have violated the Fourteenth or Fifteenth Amendment under

8



preclearance. In other words, Section 3(c) authorizes courts to “bail-in” a 

jurisdiction into the preclearance process.

Between the passage of the VRA in 1965 and Shelby County's invalidation 

of the coverage formula in 2013, Section 3(c) was invoked to bail-in two States 

(Arkansas and New Mexico), six counties (Los Angeles County, California; 

Escambia County, Florida; Thurston County, Nebraska; Bernalillo County, New 

Mexico; Buffalo County, South Dakota; Charles Mix County, South Dakota), and 

one city (Chattanooga, Tennessee). See Travis Crum, Note, The Voting Rights 

A ct’s Secret Weapon: Pocket Trigger Litigation and Dynamic Preclearance, 119 

Yale L.J. 1992, 2010 (2010) (collecting cases). The dearth of Section 3(c) bail-in 

cases is due, in part, to the existence of Section 4(b)’s coverage formula for several

4
decades. See id. at 2015.

In addition to the City of Pasadena, the City of Evergreen, Alabama, has 

been bailed-in post-Shelby County. See Allen v. City o f Evergreen, 2014 WL 

12607819, at *2 (S.D. Ala. Jan. 13, 2014). And multiple potential Section 3(c) 

bail-in suits are pending in federal courts. See, e.g., Veasey v. Abbott, 2017 WL 

1315593 (S.D. Tex. Apr. 10, 2017) (finding intentional discrimination in 

enactment of Texas’s voter ID law); Perez v. Abbott, 2017 WL 1787454, at *2-3

4
Many of these bail-ins were the result of consent decrees. See Crum, 119 

Yale L.J. at 2015.

9



(W.D. Tex. May 2, 2017) (finding intentional discrimination in enactment of 

redistricting plan and noting request for Section 3(c) relief); Second Amended 

Compl. at 74-75, Greater Birmingham Ministries v. Alabama, No. 2:15-cv-02193 

(N.D. Ala. Dec. 6, 2016), ECF No. 112 (seeking Section 3(c) relief in a lawsuit 

challenging Alabama’s voter ID law); Compl. at 22-23, Terrebonne Parish Branch 

NAACP v. Jindal, No. 314-cv-69 (M.D. La. Feb. 3, 2014), ECF No. 1 (seeking 

Section 3(c) relief in lawsuit alleging vote dilution in electing members to a 

Louisiana state court).

The City of Pasadena’s decision to radically amend its voting laws in the 

immediate wake of Shelby County follows an unfortunate pattern of behavior in 

formerly covered jurisdictions. See N.C. State Conference o f the NAACP v. 

McCrory, 831 F.3d 204, 216 (4th Cir. 2016) (discussing tightening of voter ID law 

and adoption of other voting restrictions immediately after Shelby County)-, 

NAACP LDF, Democracy Diminished: State and Local Threats to Voting Post- 

Shelby County, Alabama v. Holder (2016), https://goo.gl/sg5NFu (collecting 

examples of post-Shelby County changes). The enactment of these laws in the 

immediate aftermath of Shelby County demonstrates the need for Section 3(c)’s 

bail-in mechanism to prevent discriminatory voting practices in various 

jurisdictions nationwide—in a manner that is flexible, current, and temporally 

limited.

10

https://goo.gl/sg5NFu


C. Section 3(c)’s Bail-in Mechanism Differs Significantly From 
Section 4(b)’s Coverage Formula And Thereby Avoids Any 
Constitutional Concerns

Although there are some similarities between Sections 3(c) and 4(b), there 

are several constitutionally salient differences.

First, and most importantly, each provision contains a distinct trigger for 

preclearance. Section 4(b)’s coverage formula was based on indicia of 

unconstitutional conduct dating back to the VRA’s enactment and applied to only 

certain jurisdictions. See Northwest Austin, 557 U.S. at 203 (“The statute’s 

coverage formula is based on data that is now more than 35 years old, and there is 

considerable evidence that it fails to account for current political conditions.”). 

Section 3(c), by contrast, “replaces] [the coverage formula’s] reliance on proxies 

with judicial findings of contemporary constitutional violations.” Crum, 119 Yale 

L.J. at 2025. Thus there can be no claim that Section 3(c) relies on “decades-old 

data.” Nor is there a pre-determined differentiation between the States under 

Section 3(c): it is a nationwide standard that imposes a remedy only when a 

jurisdiction has been found by a court to engage in contemporary racial 

discrimination in voting.

Second, Section 3(c) allows greater flexibility for courts to craft a 

preclearance remedy for specific, proven constitutional violations. For instance, 

courts have fashioned targeted preclearance remedies under Section 3(c) that are as

11



narrow or broad as the violation dictates. Rather than “suspending all changes to 

state election law,” Northwest Austin, 557 U.S. at 202, courts have interpreted 

Section 3(c) to require preclearance of only certain changes to election laws. In 

Jeffers v. Clinton, the district court invoked Section 3(c) to require Arkansas to 

preclear only changes related to majority-vote requirements in general elections— 

the same type of changes that had triggered a finding of invidious discrimination. 

740 F. Supp. 585, 601 (E.D. Ark. 1990). Similarly, New Mexico agreed to preclear 

only changes relating to redistricting plans. See Crum, 119 Yale L.J. at 2012 & 

n.120 (discussing Judgment at 8, Sanchez v. Anaya, Civ. No. 82-0067M (D.N.M. 

Dec. 17, 1984) (consent decree)); see also City o f Evergreen, 2014 WL 12607819, 

at *2 (preclearance required for “any change in the redistricting plan or method of 

election for City Council elections” and eligibility requirements for voters in 

municipal elections).

Third, bail-in under Section 3(c) is more temporally limited than coverage 

under Section 4(b). Although the coverage formula was technically temporary, 

some jurisdictions were covered from 1965 until 2013. By contrast, bail-ins under 

Section 3(c) have lasted for shorter periods of time. 52 U.S.C. § 10302(c) 

(providing that a court shall “retain jurisdiction” for “such period as it may deem 

appropriate”). The recent bail-in of the City of Evergreen will last for 

approximately seven years. City o f Evergreen, 2014 WL 12607819, at *3; see also

12



Kirkie v. Buffalo County, 2004 U.S. Dist. LEXIS 30960 (D.S.D. Feb. 12, 2004) 

(consent decree) (approximately one decade). And the bail-ins of New Mexico and 

of the City in this case were crafted to capture only the next redistricting cycle. See 

Crum, 119 Yale L.J. at 2012 & n.120 (discussing Judgment at ^ 8, Sanchez v. 

Anaya, Civ. No. 82-0067M (D.N.M. Dec. 17, 1984) (consent decree)); ROA.3119 

(Bail-in until 2023 “ensures that the City’s redistricting to take account of the 2020 

Census is submitted to preclearance.”). By imposing these reasonable time limits, 

courts have ensured that bail-in remains tied to “current conditions.” Shelby 

County, 133 S. Ct. at 2631.

II. The City Of Pasadena Was Properly Subjected To Preclearance
Pursuant To Section 3(c)

A. The Bail-in Of The City Of Pasadena

This is a textbook case for when bail-in is both appropriate and necessary. 

Bail-in is a form of “equitable relief,” 52 U.S.C. § 10302(c), and therefore the 

district court’s remedial order is “reviewable on appeal for abuse of discretion.” 

eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006). The district court 

did not abuse its discretion here.

From 1992 to 2013, the City used an eight single-member district map (“the 

8-0 map”) to elect City Council members. ROA.2996. But “immediately after the 

Supreme Court’s Shelby County decision removed the requirement for Pasadena to 

obtain federal Department of Justice preclearance,” ROA.3044, the City moved to

13



replace the 8-0 map with a map composed of six single-member districts and two 

at-large districts (“the 6-2 map”).

The 6-2 map “eliminated District D as a Latino-majority district” and 

“enlarged each single-member district by approximately 6,220 people.” 

ROA.3012. Under the 6-2 map, “[candidates for an at-large position on the 

Council fde for only one place and compete only with the other candidates filing 

for that same place. Each voter may cast only one vote between the candidates for 

each place.” ROA.2997. The district court concluded (ROA.3068-ROA.3082) that 

these changes diluted the votes of Latino voters given the make-up of the new 

single-member districts, the structure of the at-large elections, and the prevalence 

of racially polarized voting—which is the keystone of a vote-dilution case, see 

McMillan v. Escambia County, 748 F.2d 1037, 1043 (5th Cir. 1984).

The City’s abolition of the 8-0 map coincided not only with Shelby County, 

but also with demographic growth and political mobilization of Latino voters. As 

the district court summarized:

Pasadena’s Latino population has grown rapidly, from 18.7% of the 
citizen voting-age population in 1990 to 48.2% today. Latinos 
appeared to be on the verge of electing a Council majority for the first 
time in Pasadena’s history in the 2015 election. But between the 
Supreme Court’s Shelby County decision [in June 2013] and the 
winter of 2014, half of the City Council, led by the Major and with the 
Mayor’s tie-breaking vote, eliminated a Latino-majority district by 
creating an at-large seat and made it more difficult for the Latino- 
preferred candidate to succeed in all the districts except the ones in

14



which the Latino citizen voting-age and Spanish-sumamed registered 
voter population have a decisive and secure majority.

ROA.3070 (footnotes omitted).

Put simply, the district court found that “Pasadena changed to the 6-2 map 

and plan precisely because Latinos were becoming more successful at winning 

City Council seats.” ROA.3058; see also ROA.3079 (“The surging—but not quite 

majority—Latino population in Pasadena and the City’s decision to change its 

electoral map and plan shortly after the Shelby County decision removed the 

requirement for preclearance similarly bears ‘the mark of intentional 

discrimination.’”) (quoting LULAC v. Perry, 548 U.S. 399, 440 (2006)). Given 

these facts, as well as the racially charged atmosphere in which the redistricting 

occurred, the district court found that the City intentionally diluted the votes of 

Latino voters in violation of the Fourteenth Amendment. ROA.3081.

The district court ordered the City to be bailed-in under Section 3(c). The 

district court found that “[pjreclearance is particularly appropriate because the City 

seized on, and used, the absence of preclearance to avoid the statutory and 

constitutional limits on redistricting.” ROA.3119. The district court also tailored its 

remedy to local conditions. The City’s bail-in “end[s] on June 30, 2023, after the 

2023 biennial election results are finalized.” ROA.3118. As the district court 

explained, this time period covers “four election cycles” and “ensures that the 

City’s redistricting to take account of the 2020 Census is submitted to

15



preclearance.” ROA.3119; see also ROA.3119 (“The court has carefully reviewed 

the evidence on Pasadena’s demographics and recent history of success in electing 

Latino or Latino-preferred candidates to conclude that six years is a sufficiently 

limited and tailored remedy in this case.”). The district court, moreover, 

acknowledged that “[t]he purpose of § 3(c) preclearance under the Voting Rights 

Act is to remedy voting rights violations, not to punish.” ROA.3119.5

B. Texas’s Statutory Arguments Against Bail-In Are Unavailing

As an initial matter, all parties are in agreement that a finding of intentional

discrimination is necessary for Section 3(c) relief. The statutory references to the 

Fourteenth and Fifteenth Amendments make that clear. 52 U.S.C. § 10302(c); see 

also Blackmoon v. Charles Mix County, 505 F. Supp. 2d 585, 592 (D.S.D. 2007). 

Here, the district court found that the City had intentionally diluted the votes of

The City’s bail-in resembles Jeffers v. Clinton, where a three-judge district 
court bailed-in Arkansas. There, the State of Arkansas enacted four majority-vote 
requirements in local elections after Black candidates won office by a plurality of 
votes in those political subdivisions. See Jeffers, 740 F. Supp. at 600. The district 
court explained that these majority-vote requirements were passed “to close off 
[an] avenue of black political victory” by “replacing] a system in which blacks 
could and did succeed, with one in which they almost certainly cannot.” Id. at 595. 
The district court required Arkansas to preclear changes relating to majority-vote 
requirements to remedy and prevent racial discrimination in voting. See id. at 600- 
02.

Just as bail-in was appropriate to ensure that the State of Arkansas would not 
intentionally cut off avenues of minority political success, here bail-in is 
appropriate to prevent the City from intentionally diluting minority voting power.

16



Latino voters in violation of the Fourteenth Amendment and thus bail-in was

warranted.

Nonetheless, Texas, as amicus curiae, makes several spurious arguments 

against preclearance.

First, Texas asserts that the use of the word “violations” in Section 3(c) 

requires findings of multiple constitutional violations prior to the imposition of 

preclearance. Tex. Br. 7-8. But Texas’s argument ignores a cardinal principle of 

statutory interpretation: the Dictionary Act provides that “words importing the 

plural include the singular” and vice versa, “unless the context indicates 

otherwise.” 1 U.S.C. § 1; see also FDIC v. RBS Securities Inc., 798 F.3d 244, 258 

(5th Cir. 2015) (noting “the Dictionary Act’s default rule that the singular includes 

the plural”); Antonin Scalia & Bryan A. Gamer, Reading Law: Interpretation o f 

Legal Texts 129 (2012) (“In the absence of a contrary indication, ... the singular

Texas expresses concern (Tex. Br. 9-10) about the improper use of some 
evidence, such as discriminatory remarks by private individuals or decades-old 
instances of discrimination. As Judge Costa has explained, “Shelby County was not 
a case about purposeful discrimination under the Fourteenth Amendment or 
Section 2 of the Voting Rights Act” and therefore “should not be used to curtail the 
use of an Arlington Heights factor” for determining discriminatory intent. Veasey, 
830 F.3d at 331 (Costa, J., dissenting).

Here, amici agree with and assume that the district court properly followed 
the Arlington Heights factors and accorded appropriate weight to this evidence. For 
instance, recent history is relevant to a finding of purposeful discrimination. See, 
e.g., ROA.3068 (considering Texas’s history of racial discrimination but giving 
pre-1970s evidence “little weight”).

17



includes the plural (and vice versa).”). A single constitutional violation is thus 

sufficient for bail-in.

Moreover, to say that a racially discriminatory redistricting map amounts to 

only a single constitutional violation is to ignore the nature of the harm. The 6-2 

map “eliminated District D as a Latino-majority district.” ROA.3012. Under the 

8-0 map, that district contained approximately 18,000 people, nearly 60% of whom 

were Latino voting-age citizens. ROA.3011. The City’s adoption of the 6-2 map 

also “enlarged each single-member district by approximately 6,220 people.” 

ROA.3012. Given these facts, it strains credulity to argue that there has been only 

one violation of the Fourteenth Amendment.

To be sure, one could imagine a singular violation of the Fourteenth or 

Fifteenth Amendments: an official could decline to register an individual voter 

because of his or her race. But successful voting rights claims, by their nature, 

almost always involve violations of multiple voters’ constitutional rights. See, e.g., 

Ala. Legislative Black Caucus v. Alabama, 135 S. Ct. 1257, 1270 (2015) (“A 

plaintiff pursuing a racial gerrymandering claim must show that ‘race was the 

predominant factor motivating the legislature’s decision to place a significant 

number of voters within or without a particular district.’”) (quoting Miller v. 

Johnson, 515 U.S. 900, 916 (1995)); White v. Regester, 412 U.S. 755, 765 (1975) 

(“[W]e have entertained claims that multimember districts are being used

18



invidiously to cancel out or minimize the voting strength of racial groups.”); see 

also Heather K. Gerken, Understanding the Right to an Undiluted Vote, 114 Harv. 

L. Rev. 1663, 1667 (2001) (explaining that, in vote dilution cases, “individual 

injury arises from the aggregate treatment of group members”). Texas’s 

interpretation would lead to the perverse result that an unconstitutional racial 

gerrymander—which, in the congressional context, could affect hundreds of 

thousands of citizens—would not justify bail-in.

Second, Texas claims that bail-in is appropriate “only upon a showing that 

preclearance is necessary because future voting discrimination is likely and cannot 

be remedied by ordinary injunctive relief.” Tex. Br. 10. Texas asserts that the 

district court failed to make this finding and places all the blame for the racially 

discriminatory redistricting map on the City’s Mayor. See Tex. Br. 10-11. Despite 

Texas’s protestations, no such requirement is found in Section 3(c)’s text. When 

read in context, Section 3(c)’s text makes clear that Congress believed that a 

jurisdiction’s intentional racial discrimination in voting was a sufficient trigger for 

preclearance, especially given the particular harms of voting discrimination as well 

as the unique burdens on minority plaintiffs in challenging voting discrimination, 

see supra at pp.5-6. And in any event, the district court found that future 

discrimination was a real possibility and ordered preclearance so that the City

19



“cannot immediately return to a map and plan that thwarts Latinos on the cusp of 

an electoral majority.” ROA.3119.

This Court—as it did in Veasey when Texas argued that plaintiffs should be 

held to a higher burden of proof under Section 2—should “decline to cripple the 

Voting Rights Act by using the State’s proposed analysis.” 830 F.3d at 261.

III. Section 3(c) Is A Constitutionally Appropriate Means Of Imposing
Preclearance In This Case

Although Texas does not argue that Section 3(c) is invalid on its face, it 

raises constitutional concerns about its application in this case and seeks to raise 

the bar for bailing-in jurisdictions more generally. Texas’s arguments are 

misguided.

Section 3(c) is an appropriate exercise of Congress’s Fourteenth and 

Fifteenth Amendment enforcement authority.7 Section 3(c) avoids the coverage 

formula’s constitutional infirmities and is a targeted remedial measure tied directly 

to a violation of the fundamental right to vote. As such, Texas’s attempt to 

circumscribe Section 3(c) relief is unavailing.

Amici believe that Katzenbach's reasonableness standard supplies the proper 
test for adjudicating the constitutionality of statutes enacted pursuant to Congress’s 
Fourteenth and Fifteenth Amendment enforcement authority. But given the 
doctrinal uncertainty wrought by Shelby County, amici assume that Shelby County 
and City o f Boerne v. Flores, 521 U.S. 507 (1997), control because those standards 
are more stringent.

20



A. Section 3(c) Does Not Violate The Equal Sovereignty Principle

It is undeniable that “equal sovereignty” was the animating principle behind
g

Northwest Austin and Shelby County. Section 3(c) does not violate that principle.

In Northwest Austin, the Court explained that the coverage formula 

“differentiate[d] between the States, despite our historic tradition that all the States 

enjoy ‘equal sovereignty.’” Northwest Austin, 557 U.S. at 203 (quoting United 

States v. Louisiana, 363 U.S. 1, 16 (I960)). And although the Court avoided the 

constitutional question, it emphasized that “a departure from the fundamental 

principle of equal sovereignty requires a showing that a statute’s disparate 

geographic coverage is sufficiently related to the problem that it targets.” Id. The 

Court also noted that a statute’s “current burdens ... must be justified by current 

needs.” Id.

That language, in turn, supplied the constitutional standard applied by the 

Court in Shelby County. 133 S. Ct. at 2622. There, the Court repeatedly criticized 

that coverage formula for differentiating between the States using “decades-old 

data” as proxies for unconstitutional conduct. See, e.g., id. at 2618 (“And § 4 of the 

Act applied that requirement only to some States—an equally dramatic departure 

from the principle that all States enjoy equal sovereignty.”); id. at 2629 (“Congress

For a persuasive critique of the equal sovereignty doctrine, see Leah M. 
Litman, Inventing Equal Sovereignty, 114 Mich. L. Rev. 1207 (2016).

21



did not use the record it compiled to shape a coverage formula grounded in current 

conditions. It instead reenacted a formula based on 40-year-old facts having no 

logical relation to the present day.”).

While the Court invalidated the coverage formula, see id. at 2631, it 

expressly limited its holding to “declaring] § 4(b) unconstitutional.” Id. at 2631. 

The Court made this point crystal clear: “Our decision in no way affects the 

permanent, nationwide ban on racial discrimination found in § 2. We issue no 

holding on § 5 itself, only on the coverage formula.” Id. Indeed, the Court stated 

that Congress retained the authority to “draft another formula based on current 

conditions.” Id.; see also id. at 2629 (“Congress—if it is to divide the States—must 

identify those jurisdictions to be singled out on a basis that makes sense in light of

9
current conditions.”).

Section 3(c)’s bail-in mechanism does not raise the same constitutional 

concerns as Section 4(b)’s coverage formula. Section 3(c) does not rely on any 

proxies—such as “decades-old” election data—for triggering coverage. Rather,

Although Section 3(c) was not mentioned in the Shelby County opinion, 
Justice Kennedy referenced it favorably at the oral argument. See Transcript of 
Oral Argument at 24, Shelby County v. Holder, 133 S. Ct. 2612 (2013) (No. 12- 
96), 2013 WL 6908203, at *24 (“[I]t seems to me that the government can very 
easily bring a Section 2 suit and as part of that ask for bail-in under Section 3.”); 
id. at 54 (“But a Section 2 case can, in effect, have an order for bail-in, correct me 
if I’m wrong, under Section 3 and then you basically have a mini—something that 
replicates Section 5.”).

22



Section 3(c) applies a nationwide standard that targets only those specific 

jurisdictions that have violated the Fourteenth or Fifteenth Amendments based on 

contemporaneous court findings. And because Section 3(c) “utilizes a coverage 

mechanism, it sidesteps the under- and over-inclusiveness inherent in any coverage 

formula.” Crum, 119 Yale L.J. at 2025. In other words, Section 3(c) does not 

burden any jurisdiction that has not recently engaged in purposeful racial 

discrimination in voting. Section 3(c)’s constitutional trigger for coverage thus 

ensures that any “disparate geographic coverage is sufficiently related to the 

problem that it targets.” Northwest Austin, 557 U.S. at 203.

B. Section 3(c) Is An Appropriate Exercise Of Congress’s 
Enforcement Authority

To be sure, preclearance, even apart from the coverage formula, “imposes 

substantial federalism costs.” Northwest Austin, 557 U.S. at 202. But these costs 

are justified in response to the constitutional violations—racial discrimination in 

voting in defiance of the Fourteenth or Fifteenth Amendments—that trigger its 

application. Put simply, Section 3(c)’s “current burdens” are justified by “current 

conditions.”

The Supreme Court has repeatedly described Congress’s enforcement 

authority under the Fourteenth Amendment as “remedial,” “corrective,” and 

“preventive.” City o f Boerne v. Flores, 521 U.S. 507, 525, 529 (1997); see also 

Kimel v. Fla. Bd. o f Regents, 528 U.S. 62, 81 (2000) (same); Tennessee v. Lane,

23



541 U.S. 509, 520 (2004) (same). Legislation enacted pursuant to Congress’s 

enforcement authority under the Reconstruction Amendments “must be an 

appropriate remedy for identified constitutional violations.” Nevada Dep’t o f 

Human Resources v. Hibbs, 538 U.S. 721, 728 (2003) (emphasis added); see also 

United States v. Georgia, 546 U.S. 151, 159 (2006) (“[IJnsofar as Title II [of the 

ADA] creates a private cause of action for damages against States for conduct that 

actually violates the Fourteenth Amendment, Title II validly abrogates state 

sovereign immunity.”). Section 3(c) relief is, by definition, a remedy for a 

constitutional violation.

Congress’s enforcement authority, moreover, is not limited solely to 

correcting past constitutional violations. The Supreme Court has approved 

prophylactic measures broader than the targeted remedy that Section 3(c) provides. 

See Hibbs, 538 U.S. at 727-28 (“Congress may enact so-called prophylactic 

legislation that proscribes facially constitutional conduct, in order to prevent and 

deter unconstitutional conduct.”); Lane, 541 U.S. at 520 (“When Congress seeks to 

remedy or prevent unconstitutional discrimination, § 5 [of the Fourteenth 

Amendment] authorizes it to enact prophylactic legislation proscribing practices 

that are discriminatory in effect, if not in intent, to carry out the basic objectives of 

the Equal Protection Clause.”).

24



Furthermore, “the appropriateness of the remedy depends on the gravity of 

the harm it seeks to prevent.” Id. at 523. In passing Section 3(c), Congress acted 

pursuant to its enforcement authority to remedy racial discrimination in voting. 

Section 3(c) is thus a double-barreled provision protecting against the twin evils 

targeted by the Fourteenth and Fifteenth Amendments. See Fisher v. University o f 

Texas at Austin, 136 S. Ct. 2198, 2208 (2016) (racial classifications receive strict 

scrutiny); Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886) (the right to vote is 

“preservative of all rights”); Hayden v. Pataki, 449 F.3d 305, 359 (2d Cir. 2006) 

(en banc) (Parker, J., dissenting) (“Congress’s enforcement authority is at its zenith 

when protecting against discrimination based on suspect classifications (such as 

race), or when protecting fundamental rights (such as voting).”). Because “any 

racial discrimination in voting is too much,” Shelby County, 133 S. Ct. at 2631, it 

is “easier for Congress” to craft a prophylactic remedy based on a record of “state 

constitutional violations.” Hibbs, 538 U.S. at 736.

Any constitutional concerns about bail-in are ameliorated by Section 3(c)’s 

“congruen[t] and proportional[]” attributes. City o f Boerne, 521 U.S. at 520. 

Section 3(c) has been used to impose targeted preclearance, rather than across-the- 

board preclearance. In situations where one type of voting change has been 

particularly problematic, courts can fashion Section 3(c) relief to target that 

problem, rather than force jurisdictions to preclear all voting changes. See supra at

25



pp. 11-12. And recall that bail-ins are more temporally limited than coverage 

determinations under Section 4(b). See supra at pp.12-13.

To the extent Section 3(c)’s “current burdens” must be justified by “current 

needs,” Shelby County, 133 S. Ct. at 2627, that standard is satisfied. Section 3(c) 

combines an enforcement action with a prophylactic remedy in response to recent 

and adjudicated violations of the Fourteenth and Fifteenth Amendments. There is 

no risk that a bail-in will be based on “decades-old” proxies. Put another way, 

Section 3(c) combines the benefits of Section 5’s uniquely effectively preclearance 

process with a more targeted and dynamic triggering mechanism, thus avoiding the 

constitutional pitfalls of Section 4(b)’s static coverage formula.

C. Texas’s Constitutional Arguments Are Misguided

Texas disagrees. Relying on Shelby County, Texas seeks to raise the

standard for bail-in. According to Texas, bail-in is constitutional only in response 

to “pervasive, flagrant discrimination” reminiscent of the worst abuses of Jim 

Crow. Tex. Br. 16. That is absurd.

“[Texas’s] argument effectively nullifies the protections o f ’ Section 3(c) 

until a jurisdiction has slid back into Jim Crow. Veasey, 830 F.3d at 247. But “the 

Voting Rights Act was enacted to prevent ... invidious, subtle forms of 

discrimination,” not only “flagrant” ones. Id. The Constitution clearly does not 

require Congress to sit on its hands until constitutional violations become rampant

26



and unchecked before it can act to prevent constitutional harm of the highest order. 

See Reno v. Bossier Parish Sch. Bd., 528 U.S. 329, 366 (2000) (Souter, J., 

concurring in part and dissenting in part) (Congress intended the VRA to protect 

against jurisdictions “pour[ing] old poison into new bottles.”). And it is worth 

repeating that Shelby County “issue[d] no holding on § 5 itself,” or on Section 3(c). 

133 S. Ct. at 2631. The repeated citations by Texas to Shelby County therefore 

cannot bear the weight Texas places on them. Given the gravity of the 

constitutional harm, Congress acted well within its enforcement authority in 

fashioning the bail-in remedy.

Texas’s argument also ignores that Section 3(c) follows a lengthy tradition 

of courts retaining jurisdiction and supervising state and local officials’ behavior 

after a finding of invidious racial discrimination. See, e.g., Raney v. Bd. ofEduc. o f 

Gould Sch. Dist., 391 U.S. 443, 449 (1968) (“[District courts should retain 

jurisdiction in school desegregation cases to insure (1) that a constitutionally 

acceptable plan is adopted, and (2) that it is operated in a constitutionally 

permissible fashion so that the goal of a desegregated, non-racially operated school 

system is rapidly and finally achieved.”) (internal quotations marks omitted); 

Salary v. Wilson, 415 F.2d 467, 473 (5th Cir. 1969) (instructing district court to 

ensure that African Americans are not unconstitutionally excluded from state 

circuit court juries and “retain jurisdiction until the objective is shown to it to be

27



attained”). Congress acted appropriately in codifying this well-worn judicial

response to unconstitutional conduct.

*  *  *

Just as “history did not end in 1965,” Shelby County, 133 S. Ct. at 2628, 

neither did it end in 2013. As the discriminatory actions of multiple jurisdictions— 

including the City of Pasadena—in the wake of Shelby County amply demonstrate, 

“voting discrimination still exists.” Id. at 2619. Section 3(c) is a constitutional and 

tailored means of enforcing the Fourteenth and Fifteenth Amendments and 

protecting the rights of voters in jurisdictions across the country.

28



CONCLUSION

For the above reasons, the judgment below should be affirmed.

Dated: May 31, 2017

Respectfully submitted,

/s/ Danielle Lang 
Paul M. Smith 
J. Gerald Hebert 
Danielle Lang 
Campaign Legal Center 
1411 K Street NW, Suite 1400 
Washington, DC 20005 
(202) 736-2200

Sherrilyn Ifill 
President & Director-Counsel 

Janai N elson 
Christina Swarns 
Leah C. Aden
NAACP Legal Defense and Educational Fund, Inc.
40 Rector Street, 5th Floor 
New York, NY 10006 
(212) 965-2200

Coty Montag
NAACP Legal Defense and Educational Fund, Inc.
1444 I Street, NW, 10th Floor 
Washington, DC 20005 
(202) 682-1300

29



APPENDIX



List Of Amici Curiae

Amicus curiae Campaign Legal Center (“CLC”) is a non-partisan, non­

profit organization that works in the area of election law, generally, and voting 

rights law, specifically, generating public policy proposals and participating in 

state and federal court litigation throughout the nation regarding voting rights. 

CLC has served as amicus curiae or counsel in voting rights and redistricting cases 

at the Supreme Court and in this Court, including Veasey v. Abbott, 830 F.3d 216 

(5th Cir. 2016) (en banc), Bethune Hill v. Virginia State Board o f Elections, 137 S. 

Ct. 788 (2017), Arizona State Legislature v. Arizona Independent Redistricting 

Commission, 135 S. Ct. 2652 (2015), and Shelby County v. Holder, 133 S. Ct. 2612 

(2013), among others. CLC has a demonstrated interest in voting rights and 

redistricting law generally, and maintaining the robust protections of the Voting 

Rights Act in particular.

Amicus curiae the NAACP Legal Defense and Educational Fund, Inc. 

(“LDF” ) is a non-profit legal organization, founded in 1940 under the leadership 

of Thurgood Marshall to achieve racial justice and ensure the full, fair, and free 

exercise of constitutional and statutory rights for Black people and other 

communities of color. Because equality of political representation is foundational 

to our democracy, and the franchise is “a fundamental political right ...

la



preservative of all rights,” Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886), LDF has 

worked for nearly a century to combat threats to equal political participation.

Indeed, LDF has been involved in nearly all of the precedent-setting 

litigation regarding minority political representation and voting rights before state 

and federal courts. See, e.g., Veasey v. Abbott, 830 F.3d 216 (5th Cir. 2016) (en 

banc), Shelby Cty., Ala. v. Holder, 133 S. Ct. 2612 (2013), Nw. Austin Mun. Util. 

Dist. No. One v. Holder, 557 U.S. 193 (2009); League o f United Latin Am. Citizens 

(LULAC) v. Perry, 548 U.S. 399 (2006); Georgia v. Ashcroft, 539 U.S. 461 (2003); 

Easley v. Cromartie, 532 U.S. 234 (2001); Bush v. Vera, 517 U.S. 952 (1996); 

Shaw v. Hunt, 517 U.S. 899 (1996); United States v. Hays, 515 U.S. 737 (1995); 

League o f United Latin Am. Citizens v. Clements, 999 F.2d 831 (5th Cir. 1993) (en 

banc); Chisom v. Roemer, 501 U.S. 380 (1991); Houston Lawyers’ A ss’n v. 

Attorney Gen. o f Texas, 501 U.S. 419 (1991); Thornburg v. Gingles, 478 U.S. 30 

(1986); Beer v. United States, 425 U.S. 130 (1976); White v. Regester, 422 U.S. 

935 (1975) (per curiam); Zimmer v. McKeithen, 485 F.2d 1297 (5th Cir. 1973); 

Gomillion v. Lightfoot, 364 U.S. 339 (1960); Terry v. Adams, 345 U.S. 461 (1953); 

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

Amicus curiae the American Civil Liberties Union (“ACLU”) is a 

nationwide, nonpartisan organization of nearly 1.6 million members, dedicated to 

protecting the fundamental liberties and basic civil rights guaranteed by the U.S.

2a



Constitution and our nation’s civil rights laws. Amicus curiae the American Civil 

Liberties Union of Texas (“ACLU Texas”) is a state affiliate of the national 

ACLU, with thousands of members across the state.

The ACLU Voting Rights Project has litigated more than 300 voting rights 

cases since 1965. These include several voting rights cases before this Court in 

which the ACLU served as party’s counsel or as an amicus, including Veasey v. 

Abbott, 830 F.3d 216 (5th Cir. 2016); Young v. Hosemann, 598 F.3d 184 (5th Cir. 

2010), Association o f Community Organizations for Reform Now v. Fowler, 178 

F.3d 350 (5th Cir. 1999), Wilson v. Mayor o f St. Francisville, La., 135 F.3d 996 

(5th Cir. 1998), Westwego Citizens for Better Government v. City o f Westwego, 

872 F.2d 1201 (5th Cir. 1989), Corder v. Kirksey, 639 F.2d 1191 (5th Cir. 1981), 

Shepherd v. Trevino, 575 F.2d 1110 (5th Cir. 1978), and Nevett v. Sides, 571 F.2d 

209 (5th Cir. 1978).

The ACLU and ACLU Texas have a significant interest in the outcome of 

this case and in other cases across the country concerning laws that intentionally 

discriminate against voters on the basis of race as well as those that dilute the 

voting power of minority voters. The ACLU and its affiliates have litigated 

challenges to such laws across the county and are currently representing plaintiffs 

in the successful challenge to intentionally discriminatory voting changes in North 

Carolina, see N.C. State Conf. o f N.A.A.C.P. v. McCrory, 831 F.3d 204 (4th Cir.

3a



2016), cert, denied, No. 16-833, 2017 WL 2039439 (2017), as well as in vote 

dilution claims in Missouri and Georgia, see Mo. State Conf. o f N.A.A.C.P v. 

Ferguson-Florissant Sch. Dist., 201 F. Supp. 3d 1006 (E.D. Mo. 2016), appeal 

docketed, No. 16-4511 (8th Cir. Dec. 21, 2016); Wright v. Sumter Cty. Bd. o f Elec. 

& Registration, 657 F. App’x 871 (11th Cir. 2016).

Amicus curiae Asian Americans Advancing Justice | AAJC (“Advancing 

Justice | AAJC “) is a nonprofit, nonpartisan organization that seeks to promote a 

fair and equitable society for all by working for civil and human rights and 

empowering Asian American, Native Hawaiian, and Pacific Islander (AANHPI) 

communities. Advancing Justice | AAJC advances its mission through advocacy, 

public policy, public education, and litigation. Advancing Justice | AAJC has 

maintained a strong interest in the voting rights of AANHPIs and strives to protect 

AANHPI’s access to the polls. Advancing Justice | AAJC was a key player in 

collaborating with other civil rights groups to reauthorize the Voting Rights Act in 

2006, and, in past elections, has conducted poll monitoring and voter protection 

efforts across the country. Advancing Justice | AAJC has a long-standing history of 

serving the interests of immigrant and language minority communities, and is very 

concerned with issues of discrimination that might face them.

Amicus curiae the League of United Latin American Citizens 

(“LULAC”) is the nation’s largest and oldest civil rights volunteer-based

4a



organization that empowers Hispanic Americans and builds strong Latino 

communities. Headquartered in Washington, DC, with 1,000 councils around the 

United States and Puerto Rico, LULAC’s programs, services, and advocacy 

address the most important issues for Latinos, meeting critical needs of today and 

the future.

Amicus curiae Southern Coalition for Social Justice (“SCSJ”) is a 

501(c)(3) nonprofit public interest law organization founded in 2007 in Durham, 

North Carolina. SCSJ partners with communities of color and economically 

disadvantaged communities in the south to defend and advance their political, 

social, and economic rights through the combination of legal advocacy, research, 

organizing and communications. One of amicus ’ primary practice areas is voting 

rights. Amicus has represented individual and organizational clients in redistricting 

cases across the South, including Florida, Georgia, North Carolina, South Carolina, 

Tennessee, Texas, and Virginia. Amicus SCSJ frequently represents clients in cases 

brought under the Voting Rights Act (VRA) and Fourteenth Amendment 

challenging voting laws and practices that abridge voting, registration, or fair 

representation for all eligible voters, and laws that were passed with racially 

discriminatory intent. Indeed, in the last year, Amicus SCSJ has won two cases 

alleging intentional discrimination in violation of the VRA and Fourteenth 

Amendment: N.C. State Conf. o f the NAACP v. McCrory, 831 F.3d 204 (4th Cir.

5a



2016), cert, denied, 581 U. S .____(2017) (May 15, 2017); Perez v. Abbott, SA-

1 l-CV-360, 2017 U.S. Dist. LEXIS 35012 (W.D. Tex. Mar. 10, 2017) 

(congressional districts); Perez v. Abbott, SA-1 l-CV-360, 2017 U.S. Dist. LEXIS 

60237 (W.D. Tex. Apr. 20, 2017) (state house districts). Amicus has and will 

continue to seek bail-in under the VRA where such relief is necessary to vindicate 

voting rights and protect voters from future discriminatory laws.

Amicus curiae the Southern Poverty Law Center (“SPLC”), based in 

Montgomery, Alabama, is a non-profit organization founded in 1971 to advance 

and protect the rights of minorities, people living in poverty, and victims of 

injustice in significant civil rights and social justice matters. SPLC works in states 

that were previously covered by Section 5 of the Voting Rights Act of 1965 and on 

behalf of communities that are often the targets of voter suppression tactics. SPLC 

is dedicated to the idea that all voters should have equal access to the ballot box; 

therefore, the issues of this case are directly related to SPLC’s purpose and 

mission.

Amicus curiae the Texas State Conference of the NAACP (“Texas 

NAACP”) is the oldest and one of the largest, most significant organizations 

promoting and protecting the civil rights of African Americans in Texas. It is a 

non-profit membership organization with over seventy branches across the state 

and members in almost every county of Texas. Since its inception, the organization

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has been involved in numerous voting rights cases and legislative efforts in the 

state to ensure that all Texas have equal and unfettered access to their right to 

vote, including preventing the impermissible purging of voters from rolls.

Amicus curiae the Voting Rights Institute at Georgetown Law (“VRI”) 

was founded in 2015 to train the next generation of lawyers and leaders and to 

litigate voting rights cases throughout the nation. VRI recruits and trains expert 

witnesses to assist in litigation development and presentation; promotes increased 

local and national focus on voting rights through events, publications, and the 

development of web-based tools; provides opportunities and platforms for research 

on voting rights; and offers opportunities for students, recent graduates, and 

fellows to engage in litigation and policy work in the field of voting rights.

7a



Pursuant to 5th Circuit R. 32.2.7(c), the undersigned certifies this brief complies 
with the type-volume limitations of 5th Cir. R. 32.2.7(b).

1. EXCLUSIVE OF THE EXEMPTED PORTIONS IN 5TH CIR. R. 32.2.7(b) 
(3), THE BRIEF CONTAINS (select one):

A. 6.470 words, OR

B. N/A____lines of text in monospaced typeface.

2. THE BRIEF HAS BEEN PREPARED (select one):

A. in proportionally spaced typeface using:

CERTIFICATE OF COMPLIANCE

Software Name and Version: Microsoft Word v. 2010 in (Typeface 
Name and Font Size): Times New Roman 14 pt.. OR

B. in monospaced (nonproportionally spaced) typeface using: NA

Typeface name and number of characters per inch:

3. IF THE COURT SO REQUESTS, THE UNDERSIGNED WILL PROVIDE 
AN ELECTRONIC VERSION OF THE BRIEF AND/OR A COPY OF 
THE WORD OR LINE PRINTOUT.

4. THE UNDERSIGNED UNDERSTANDS A MATERIAL 
MISREPRESENTATION IN COMPLETING THIS CERTIFICATE OR 
CIRCUMVENTION OF THE TYPE-VOLUME LIMITS IN 5TH CIR. R. 
32.2.7, MAY RESULT IN THE COURTS STRIKING THE BRIEF AND 
IMPOSING SANCTIONS AGAINST THE PERSON SIGNING THE 
BRIEF.

/s/ Danielle Lanz 
Danielle Lang



On May 31, 2017, this brief was served via CM/ECF on all registered

counsel and transmitted to the Clerk of the Court. I hereby certify that: (1) required 

privacy redactions have been made; (2) the electronic submission of this document 

is an exact copy of the corresponding paper document; and (3) the document has 

been scanned for viruses with the most recent version of a commercial virus 

scanning program and is free of viruses.

CERTIFICATE OF SERVICE AND ELECTRONIC SUBMISSION

/s/ Danielle Lang 
Danielle Lang