Shelby County v. Holder Brief Amici Curiae

    No. 12-96

In the

Supreme Court o f tlie Bnitrft States

SHELBY COUNTY, ALAB AM A,

Petitioner,

v.

ERIC H. HOLDER, JR., in his official capacity 
as Attorney General of the United States, et al,

Respondents.

On W rit of Certiorari to the United States Court 
of A ppeals for the District of Columbia Circuit

BRIEF FOR THE STATES OF NEW YORK, CALIFORNIA, 
MISSISSIPPI, AND NORTH CAROLINA AS 

AMICI CURIAE IN SUPPORT OF RESPONDENTS

K amala D. Harris 
Attorney General 
of California 

1300 I Street 
Sacramento, CA 94244

Jim Hood 
Attorney General 
of Mississippi 

P.O. Box 220 
Jackson, MS 39205

Roy Cooper 
Attorney General 
of North Carolina 

RO. Box 629 
Raleigh, NC 27602

E ric T. Schneiderman 
Attorney General of the 
State o f New York 

Barbara D. Underwood* 
Solicitor General 

Cecelia C. Chang 
Deputy Solicitor General 

Steven C. W u 
Special Counsel to the 
Solicitor General 

120 Broadway 
New York, N Y 10271 
(212)416-8020 
barbara.underwood 

@ag.ny.gov
*Counsel of Record

245874



QUESTION PRESENTED

W hether Congress’s decision in 2006 to reauthorize 
Section 5 o f the Voting Rights Act under the pre-existing 
coverage formula of Section 4(b) of the Voting Rights Act 
exceeded its authority under the Fourteenth and Fifteenth 
Amendments and thus violated the Tenth Amendment and 
Article IV  o f the United States Constitution.



TABLE OF CONTENTS

Interest of Amici Curiae..................................................... 1
Summary of Argument......................................................... 2
Argum ent.................................................................................4

I. Preclearance of Voting Changes Continues
to Be a Proper Means of Enforcing the 
Voting Rights Guaranteed by the Fifteenth 
Am endm ent................................................................4
A. The preclearance process does not

im pose undue burdens on covered 
jurisdictions....................................................... 4

B. Preclearance is a critical complement
to case-by-case litigation.............................. 10

II. The Bailout and Bail-in Procedures o f 
the Voting Rights Act Provide a Tailored 
Response to Changing Local Conditions 
and Thereby Defeat This Facial Challenge
to the Act’s Geographic Coverage...... ................. 16

Conclusion.............................................................................. 24

Page



in

TABLE OF CITED AUTHORITIES

Cases:
Allen v. State Board of Elections,

393 U.S. 544 (1969)..........................................................13
Alta Irrigation District v. Holder, No. ll-cv-758

(D.D.C. July 15,2011).....................................................20
Arizona v. United States, 132 S. Ct. 2492 (2012)...........23
Ayotte v. Planned Parenthood of Northern New

England, 546 U.S. 320 (2006)...................................... 23
Bartlett v. Strickland, 556 U.S. 1 (2009 )....................... 12
Branch v. Smith, 538 U.S. 254 (2003) ............................11
City ofBoerne v. Flores, 521 U.S. 507 (1 9 9 7 )...............18
City of Lockhart v. United States, 460 U.S. 125 (1983). .11
EEC v. National Right to Work Committee,

459 U.S. 197(1982)..........................................................19
Fitzpatrick v. Bitzer, 427 U.S. 445 (1976)....................... 18
Georgia v. United States, 411 U.S. 526 (1973).........11,12
Holder v. Hall, 512 U.S. 874 (1994)..................................10
Holland v. Illinois, 493 U.S. 474 (1990)......................... 14
Jeffers v. Clinton, 740 F. Supp. 585

(E.D. Ark. 1 99 0 )............................................................. 21
McConnell v. FEC, 540 U.S. 93 (2003)........................... 13
McDaniel v. Sanchez, 452 U.S. 130 (1981)...............10,13
NLRB v. Jones & Laughlin Steel Corp.,

301 U.S. 1 (1937)..............................................................19
Nevada Department of Human Resources v.

Hibbs, 538 U.S. 721 (2003)......................................17,18
Powers v. Ohio, 499 U.S. 400 (1991)................................ 14

Page



IV

Presley v. Etowah County Commission,
502 U.S. 491 (1992)......................................................... 17

Reno v. Bossier Parish School Board,
520 U.S. 471 (1997)......................................................... 10

Reynolds v. Sims, 377 U.S. 533 (1964)..................... 13,16
Sanchez v. King, No. 82-0067-M

(D.N.M. Aug. 8 ,1984 )..................................................... 21
South Carolina v. Katzenbach, 383 U.S. 301 (1966).. .19
Tennessee v. Lane, 541 U.S. 509 (2004 )................... 18,23
United States v. Georgia, 546 U.S. 151 (2006)...............22
Washington State Grange v. Washington State 

Republican Party, 552 U.S. 442 (2008)........................9

Laws:
Voting Rights Act, 42 U.S.C.

§ 1973a............................................................................... 17
§ 1973b..................................................................... passim
§ 197 3c.................................................................................8

Voting Rights Act Amendments of 1982,
Pub. L. No. 97-205, 96 Stat. 1 3 1 .................................. 20

28 C.F.R.
§§ 51.26-.28.........................................................................11
§§ 51.32-.33........................................................................ 12

Miscellaneous Authorities:
152 Cong. Rec. H5054 (2006)...............................................6

152 Cong. Rec. S7969 (2 0 0 6 )............................................. 15

Cited Authorities

Page



Cited Authorities

Page

Civil R ights Div., DOJ, Notices o f Section 5 
Submission A ctivity, h ttp ://w w w .ju stice . 
gov/crt/about/vot/sec_5/notices.php........................... 12

Civil Rights Div., DOJ, Section k of the Voting 
Rights Act, http://www.justice.gov/crt/about/ 
vot/misc/sec_4.php#bailout_list.................................. 20

Civil Rights Div., DOJ, Section 5 Resource Guide, 
http ://w w w .justice .gov /crt/about/vot/sec_5 / 
about.php.......................................................................... 11

Crum, Travis, Note, The Voting Rights A ct’s 
Secret Weapon: Pocket Trigger Litigation and 
Dynamic Preclearance, 119 Yale L.J. 1992 
(2010) .....................................................................................21

Extension of the Voting Rights Act: Hearings before 
the Subcomm. on Civil and Constitutional 
Rights of the H. Comm, on the Judiciary, 97th 
Cong. 2122 (1981)............................................................. 23

Fannie Lou Hamer, Rosa Parks, and Coretta 
Scott King Voting Rights Act Reauthorization 
and Amendments Act of2006 (Parti): Hearing 
before the Subcomm. on the Constitution of the 
H. Comm, on the Judiciary, 109th Cong. 65 (2006).. 14

H.R. Rep. No. 109-478 (2006)..................................8,15,21



VI

Lee, Jessica, The Effects o f Section 5 o f the 
Voting R ights A ct: A  C aliforn ia  Case 
Study (M ay 20, 2009) (unpublished honors 
thesis, Stanford Univ.), available at http://

Cited Authorities

Page

publicpolicy.stanford.edu/node/349.............................. 16

Modern Enforcement of the Voting Rights Act: 
Hearing before the S. Comm, on the Judiciary,
109th Cong. 96 (2006)..................................................... 9

R eauthorization  o f  the A c t ’s Tem porary  
Provisions: Policy Perspectives and Views 
from the Field: Hearing Before the Subcomm. 
on the Constitution, Civil Rights and Property 
Rights of the S. Comm, on the Judiciary, 109th
Cong. 13 (2 0 0 6 )......................................................... 5, 6, 7

S. Rep. No. 109-295 (2006)...................................................8

Understanding the Benefits and Costs of Section 
5 Pre-Clearance: Hearing Before the S. Comm, 
on the Judiciary, 109th Cong. 10 (2 0 0 6 ).............5, 7, 9

Voting Rights Act: An Examination of the Scope 
and Criteria for Coverage Under the Special 
Provisions o f the Act: Hearing before the
Subcomm. on the Constitution of the H. Comm, 
on the Judiciary, 109th Cong. 90 (2005 )................... 20

Voting Rights Act: Section 5 of the Act—History, 
Scope, and Purpose: Hearing before the 
Subcomm. on the Constitution of the H. Comm, 
on the Judiciary, 109th Cong. 84 (2005 )...................15



1

INTEREST OF AMICI CURIAE

Shelby County, Alabama, challenges the preclearance 
process contained in Section 5 o f the Voting Rights 
A ct on the ground that the extraordinary problem s 
of discrimination that led to its enactment in 1965 no 
longer exist, and that the burdens it imposes on States 
and localities are no longer justifiable. Amici States New 
York, California, Mississippi, and North Carolina are for 
several reasons particularly well qualified to provide the 
Court with a perspective that should inform any effort to 
resolve that claim.

Mississippi, North Carolina, New York, and California 
are among the sixteen States covered in whole or in part by 
Section 5’s preclearance process, and thus have extensive 
first-hand experience with the costs and benefits o f its 
operation. Moreover, Amici States contain a substantial 
number of minority voters affected by the enforcement 
of Section 5: Mississippi has the largest proportion of 
African-Am erican voters o f any State in the country, 
North Carolina has the seventh largest proportion of 
such voters, and New York and California contain some of 
the largest and most diverse counties among the covered 
jurisdictions.

In the experience of Amici States, claims that the 
preclearance process imposes substantial burdens on the 
covered jurisdictions or unreasonably intrudes on state 
sovereignty are mistaken. Rather, for Amici States, “ ‘[t]he 
benefits o f Section 5 greatly exceed the minimal burdens 
that Section 5 may impose on States and their political 
subdivisions.” ’ Pet. App. 276a-277a (quoting Amicus 
Br. for North Carolina, Arizona, California, Louisiana,



2

Mississippi and New York at 17, Nw. Austin Mun. Util. 
Dist. No. One v. Holder, 557 U.S. 193 (2009) (No. OS- 
322), 2009 W L  815239, at *2). Moreover, those claims 
wrongly minimize the significant and measurable benefits 
Section 5 has produced in helping Amici States move 
toward their goal o f eliminating racial discrimination 
and inequities in voting. The Section 5 preclearance 
process has helped bring about tremendous progress 
in the covered jurisdictions and continues to be a vital 
mechanism to assist Amici States in working to achieve 
the equality in opportunities for political participation that 
is a foundational principle of our democracy.

Amici States share the commitment to eliminating 
racial discrim ination in voting rights that animates 
the federal Voting Rights Act. The record assembled 
by Congress to support the reauthorization of Section 
5 in 2006 shows what Amici States know to be true: 
that Section 5 continues to play an important role in 
Mississippi, North Carolina, New York, and California, 
as well as in the other covered jurisdictions.

SUMMARY OF ARGUMENT

W ith overw helm ing bipartisan support in 2006, 
Congress reauthorized the preclearance process contained 
in Section 5 of the Voting Rights Act. Preclearance has 
historically been a vital safeguard, and it remains today 
an essential tool for preventing voting discrimination. 
Tremendous progress has been made in Amici States 
and other covered jurisdictions in protecting the rights of 
minority voters. Congress reasonably determined in 2006 
that the protections of the preclearance process are still 
necessary to preserve, secure, and extend these historic



3

accomplishments in eliminating voting discrimination, a 
goal that Amici States share.

In Amici States’ experience, the substantial benefits 
of the preclearance process have outweighed its burdens 
on covered jurisdictions. Preclearance is a streamlined 
administrative process that has been refined over the 
years to reduce the burden on covered jurisdictions. 
Moreover, preclearance provides substantial benefits to 
covered States and localities by serving as a critical means 
to identify and deter retrogressive and discriminatory 
voting-related  changes. To the extent that Section 
5 im poses federalism  costs, its com pliance burdens 
are minimal in light o f the unique and irreplaceable 
protections preclearance ensures.

I f  p reclearan ce  w ere elim inated, case -by -case  
litigation— principally under Section 2 o f the Voting 
Rights A ct— would be the sole means for protecting 
minority voters in covered jurisdictions. But Congress 
never intended such a result, and practical experience 
has confirmed that Section 2 is no substitute for Section 
5 ’s p reclearance protections. P reclearan ce  fosters  
governmental transparency and generates the information 
necessary to assess the impact o f voting changes; it 
suspends enforcement o f proposed voting laws before 
discriminatory changes are implemented; and, by imposing 
those safeguards, it serves a powerful deterrent function 
that case-by-case litigation would not provide. Moreover, 
increased Section 2 litigation would impose federalism 
costs o f its own— replacing the minimal administrative 
obligations of making preclearance submissions to the 
U.S. Department of Justice (“DOJ”) with the prospect of 
costly and time-consuming litigation every time a voting 
change is proposed.



4

In light o f its prophylactic benefits, the geographic 
coverage of Section 5 is also reasonable. In reauthorizing 
Section 5, Congress was entitled to look not only to the 
specific coverage formula contained in Section 4(b) of 
the Voting Rights Act, but also to the A ct’s bail-in and 
bailout provisions, which provide alternative avenues for 
adjusting preclearance requirements to reflect current 
conditions. Through bail-in, a noncovered jurisdiction 
that engages in voting discrimination can be ordered to 
comply with Section 5’s preclearance procedures; and 
through bailout, a covered jurisdiction that demonstrates 
a clean record can terminate its preclearance obligations. 
These tailoring mechanisms are rarely, if ever, included 
in remedial legislation, and their presence in the Voting 
Rights Act is sufficient to sustain the Act against facial 
invalidation of its coverage and preclearance provisions.

ARGUMENT

I. Preclearance of Voting Changes Continues to Be 
a Proper Means of Enforcing the Voting Rights 
Guaranteed by the Fifteenth Amendment

A. The preclearance process does not impose 
undue burdens on covered jurisdictions.

Both the practical experience of Amici States and 
the evidence in the congressional record confirm that 
the administrative obligations associated with Section 
5 compliance are not substantial. At every stage— data 
compilation, submission of materials to DOJ, and review of 
the materials by DOJ— the process has been streamlined 
to minimize the burden on covered jurisdictions.



5

The materials necessary for DOJ’s limited Section 
5 review are ordinarily both readily accessible and easy 
to assemble. In general, covered jurisdictions need only 
com pile enough inform ation to help DOJ determ ine 
w hether a voting-related  change was adopted with 
a d iscrim inatory purpose or w ill have the effect o f 
worsening the position of minority voters. The information 
relevant to that analysis is often part o f the legislative 
record compiled in the period preceding adoption of the 
new law or change.

Congress heard testimony that preparing Section 
5 preclearance submissions is “a task that is typically a 
tiny reflection of the work, thought, planning, and effort 
that had to go into making the [election] change to begin 
with.” Understanding the Benefits and Costs of Section 
5 Pre-Clearance: Hearing Before the S. Comm, on the 
Judiciary, 109th Cong. 10 (2006) (“Benefits and Costs”) 
(testimony of Armand Derfner). As one election official 
testified, “preclearance requirements are routine and 
do not occupy an exorbitant amount of time, energy or 
resources.” Reauthorization o f the A ct’s Temporary 
Provisions: Policy Perspectives and Views from  the 
Field: Hearing Before the Subcomm. on the Constitution, 
Civil Rights and Property Rights of the S. Comm, on 
the Judiciary, 109th Cong. 13 (2006) (quotation marks 
omitted) (“Policy Perspectives” ) (testimony o f Donald 
Wright).

N or is the actual subm ission  o f  the Section  5 
preclearance materials a costly undertaking. Although, in 
the past, covered jurisdictions could make administrative 
submissions only on paper by postal or other physical 
delivery service, they can now also submit materials



6

by fax or electronic transmission. Moreover, increasing 
numbers of jurisdictions maintain the relevant records 
electronically, facilitating the process of collecting and 
submitting the necessary m aterials. State and local 
officials are also generally able to prepare Section 
5 submissions easily using tem plates from  previous 
submissions. Congress heard evidence from one official 
that “ [t]he ease and cost of such submissions also improves 
with the use o f previous submissions in an electronic 
format to prepare new submissions. In my experience, 
most submissions are routine matters that take only a few 
minutes to prepare using electronic submission formats 
readily available to me.” Policy Perspectives, supra, at 313 
(emphasis omitted) (testimony o f Donald Wright).

Nor has Section 5 review of voting changes proven 
significantly burdensome or intrusive on the time of those 
officials who prepare materials for submission to DOJ. 
Generally, counsel and staff personnel familiar with the 
Section 5 preclearance process prepare administrative 
submissions. Thus, the Section 5 preclearance process is 
often both routine and familiar to the relevant submitting 
officials. See 152 Cong. Rec. H5054 (2006) (“Pre-clearance 
requirements are routine, and do not occupy exorbitant 
amounts of time, energy or re-sources.” (quotation marks 
omitted)). These officials, given their fam iliarity and 
experience with the process, help ensure that the initial 
submission is complete and contains all of the relevant 
information that DOJ needs to make its preclearance 
determination. The evidence before Congress showed 
that covered jurisdictions often “have staff counsel that 
prepare submissions as part o f their ongoing duties, so 
additional costs are not incurred in those situations. The 
costs of submissions are significantly reduced by ensuring 
that they are promptly and correctly submitted the first



7

tim e.” Policy Perspectives, supra, at 313. Moreover, 
Congress also received evidence confirming that election 
officials in covered jurisdictions “viewed Section 5 as a 
manageable burden providing benefits in excess of costs 
and time needed for submissions.” Id.

In addition, DOJ has administered the Section 5 review 
process with a significant degree of flexibility and latitude, 
taking into account the unique circumstances and crises 
that sometimes emerge within the covered jurisdictions. 
As some of Amici States have experienced, DOJ has 
expedited its review of voting changes, where possible, 
recognizing the crises and challenges that sometimes 
befall covered jurisdictions. For example, after Hurricane 
Katrina, DOJ issued a letter to Mississippi acknowledging 
that DOJ would be ready to expedite its review of any last- 
minute voting changes that may have resulted from the 
hurricane. Id. at 141-42. In other instances, DOJ has made 
swift preclearance determinations— well before the end of 
its statutorily required sixty-day review period. Benefits 
and Costs, supra, at 10-11 (noting if  there is a sudden need 
for a new polling place, that can be precleared very swiftly 
if  there is an election coming up) (testimony of Armand 
Derfner); Policy Perspectives, supra, at 312 (election 
official noting that he “ never had a situation where the 
USDOJ has failed to cooperate with our agency or local 
government to ensure that a preclearance issue did not 
delay an election”) (testimony of Donald Wright). Amici 
States have found that DOJ has administered Section 5 
in a manner that neither obstructs nor infringes upon the 
dignity and sovereignty of the States.

Shelby County argues that “ Section 5 will foreclose 
the im plem entation o f  m ore than 100,000 electora l 
changes unless and until they are precleared.” Pet.



8

Br. 25. But this number vastly exaggerates the actual 
time and expense associated with Section 5 compliance. 
A lthough  the preclea ra n ce  p rocess  applies to any 
changes to voting practices, as a historical matter DOJ 
has generally review ed those changes expeditiously 
and raised objections to only the few voting changes 
that it found to have a discriminatory purpose or effect. 
Moreover, submissions o f multiple voting changes are 
often made in a single filing, and this neither slows nor 
impairs DOJ’s ability to conduct a speedy review. DOJ’s 
careful and targeted exercise o f its Section 5 review has 
been a hallmark of its enforcement o f preclearance for 
decades: the objection rate has always been only a fraction 
of the thousands of voting changes for which it receives 
notice. See H.R. Rep. No. 109-478, at 22 (2006); S. Rep. 
No. 109-295, at 13 (2006). Thus, as a practical matter, the 
preclearance process permits the vast majority of voting 
changes to be implemented as originally enacted, with 
only minimal delay. See 42 U.S.C. § 1973c(a) (permitting 
voting change if no objection is raised within sixty days).

Finally, there is no basis to conclude that Section 5 as 
it is implemented today is more burdensome for covered 
jurisdictions than the alternative proposed by Shelby 
County and endorsed by the dissent below (Pet. App. 77a): 
a world in which the preclearance process is replaced by a 
dramatic increase in the amount of case-by-case litigation.

I f  every DOJ objection were to be replaced by Section 
2 litigation, the burden on covered jurisdictions would 
arguably be more severe. I f  a voting change is found to 
be discriminatory, a court injunction blocking the change 
under Section 2 is at least as intrusive as a DOJ objection 
under Section 5 because, as this Court has recognized,



9

a judicial injunction against an election procedure is 
an “extraordinary and precipitous nullification o f the 
will o f the people.” Wash. State Grange v. Wash. State 
Republican Party, 552 U.S. 442, 458 (2008). And the 
streamlined administrative review of Section 5 is far less 
onerous than the ‘“ intensely com plex. . .  costly and time- 
consuming’” nature of Section 2 litigation, Pet. App. 45a 
(quoting Modern Enforcement of the Voting Rights Act: 
Hearing before the S. Comm, on the Judiciary, 109th 
Cong. 96 (2006) (“Modern Enforcement”)), which can 
cost millions of dollars and hundreds of hours for States 
or localities to defend, see Benefits and Costs, supra, at 
80. Indeed, one of the most significant benefits o f the 
preclearance process to covered jurisdictions is that a 
Section 5 objection will prevent a problematic voting 
change from taking effect, thereby reducing the likelihood 
that a jurisdiction will face costly and protracted Section 
2 litigation.

_ Because Section 2 litigation is so costly and burdensome, 
reliance on case-by-case litigation alone would reduce 
the overall burdens on covered jurisdictions only if  such 
litigation failed to reach some of the discriminatory voting 
changes currently caught by the preclearance process. 
But such a result would reduce the burden on States and 
localities only by degrading the overall level of protection 
currently afforded to minority voters— raising the risk that 
citizens will be denied the right to vote on the basis of their 
racial or language-minority status, and undermining the 
States own interest in preventing discriminatory voting 
changes. For the reasons given below, the preclearance 
process provides valuable and irreplaceable protections 
for minority voters in covered jurisdictions, and Congress 
reasonably determined in 2006 that preclearance should



10

continue to complement case-by-case litigation in the areas 
where the two remedies have worked effectively together 
for decades.

B. Preclearance is a critical complement to case- 
by-case litigation.

For nearly fifty years, preclearance has operated 
as an essential complement to case-by-case litigation, 
serving “ to forestall the danger that local decisions to 
modify voting practices will impair minority access to the 
electoral process.” McDaniel v. Sanchez, 452 U.S. 130,149 
(1981). Shelby County does not contend that remedies for 
voting discrimination are no longer needed; it contends 
rather that preclearance is no longer necessary because 
Section 2 is a sufficient remedy. See Pet. Br. 20, 33. But 
Congress has repeatedly determined that Section 2 is 
not a sufficient remedy in jurisdictions with a substantial 
history of voting discrimination, and that determination 
was amply supported by the record before Congress in 
2006.1

As this Court has recognized, Sections 2 and 5 “differ 
in structure, purpose, and application,” Holder v. Hall, 
512 U.S. 874, 883 (1994) (opinion of Kennedy, J.), and 
they have long been understood “ to combat different 
evils,” Reno v. Bossier Parish Sch. Bd., 520 U.S. 471, 
476 (1997). Section 5’s importance as “a prophylactic tool 
in the important war against discrimination in voting,” 
id. at 491 (Thomas, J., concurring), depends on a set of 
features unique to the preclearance process. As important

1 We do not here separately survey the record before Congress 
of continuing voting discrimination, which others have amply 
described. See U.S. Br. 20-39; Pet. App. 22a-48a, 256a-270a.



11

and effective as Section 2 may be standing alone, it 
simply does not duplicate the crucial attributes that have 
made preclearance “ [t]he most important . . .  remedial 
measure [] in the Voting Rights Act, City o f Lockhart 
v. United States, 460 U.S. 125, 139 (1983) (Marshall, J., 
concurring in part and dissenting in part).

As explained above, if  the Section 5 preclearance 
process were replaced by vastly increased litigation activity 
under Section 2, the result would not significantly reduce 
the burdens imposed on covered jurisdictions. Moreover, 
it would greatly reduce the effectiveness o f the Voting 
Rights Act in combating voting discrimination because 
o f at least three important features o f preclearance that 
would be lost without Section 5.

F irst, the preclearance process makes available 
information that would otherwise be difficult to obtain, 
by requiring covered jurisdictions to provide, for every 
voting change, enough documentation to demonstrate 
that the proposed change has neither a discriminatory 
purpose nor effect. See Branch v. Smith, 538 U.S. 254, 
263 (2003); Georgia v. United States, 411 U.S. 526, 540 
(1973). That docum entation includes not only copies 
of the new voting rule and its predecessor, but also, 
inter alia, an explanation o f the differences between 
the two, an estimate of the voting change’s impact on 
racial or language minorities, and certain demographic 
information. See 28 C.F.R. §§ 51.26-.28. The amount of 
information generated by preclearance is significant. “ In 
a typical year, [DOJ] receives between 4,500 and 5,500 
Section 5 submissions, and reviews between 14,000 and 
20,000 voting changes.” Civil Rights Div., DOJ, Section 
5 Resource Guide, http://www.justice.gov/crt/about/vot/

http://www.justice.gov/crt/about/vot/


12

sec_5/about.php (last visited Jan. 31,2013). DOJ provides 
public notice o f all Section 5 submissions and solicits 
comments and information on all proposed voting changes. 
See 28 C.F.R. §§ 51.32-.33; Civil Rights Div., DOJ, Notices 
of Section 5 Submission Activity, http://www.justice.gov/ 
crt/about/vot/sec_5/notices.php (last visited Jan. 31,2013).

Absent Section 5, it would be difficult or in some 
cases impossible for interested parties to obtain the 
information needed to determine whether and where to 
bring a Section 2 lawsuit, or even to learn that a voting 
change is contemplated. This is particularly true in the 
case o f smaller governmental entities that may attract 
less scrutiny. And although Section 5’s information-forcing 
function imposes some costs on covered jurisdictions, 
the costs o f gathering and submitting the information 
are relatively small because m ost o f the information 
submitted for preclearance is readily available to covered 
jurisdictions. See supra Point I. A. By contrast, litigation 
under Section 2 imposes much more substantial costs 
on both the jurisdiction and those who would challenge 
voting changes.

Second, Section 5 temporarily suspends enforcement 
of proposed voting changes until either DOJ or a three- 
judge district court determines that the change is not 
discrim inatory. See Georgia, 411 U.S. at 538. This 
provisional remedy addresses the significant, irreparable 
harms caused by the implementation of a discriminatory 
voting rule. The right to vote is “ one o f  the m ost 
fundamental rights of our citizens.” Bartlett v. Strickland, 
556 U.S. 1,10 (2009) (Kennedy, J., plurality op.). Elections 
held under unlawful voting rules are often impossible to 
unwind, making the loss of a vote permanent even if a

http://www.justice.gov/


13

court subsequently recognizes the election’s illegitimacy. 
See, e.g., McDaniel, 452 U.S. at 133 n.5 (noting that 
district court permitted primary election to occur under 
challenged change); Allen v. State Bd. of Elections, 393 
U.S. 544, 571-72 (1969) (declining to set aside already- 
conducted elections); see also Reynolds v. Sims, 377 U.S. 
533, 585 (1964) (noting that “equitable considerations” 
might prevent court from  interfering with imminent 
election “even though the existing apportionment scheme 
was found invalid” ). And the results of such elections can 
alter the distribution of power in far-reaching ways that 
cannot be remedied by the correction of future voting 
rules: for example, incumbents incur powerful “ [n]ame 
recognition and other advantages” that often persist so 
long as they seek reelection, McConnell v. EEC, 540 U.S. 
93, 307 (2003) (Kennedy, J., concurring in the judgment 
in part and dissenting in part). The preclearance process 
avoids these irreparable injuries by ensuring that new 
voting rules in the covered jurisdictions do not come into 
effect until an expedited review determines that a change 
has neither a discriminatory purpose nor a discriminatory 
effect.

C ase-by-case litigation can provide this kind of 
interim relief only in the limited situations where there 
are plaintiffs who are sufficiently knowledgeable and 
aggrieved about a discriminatory voting change to bring 
suit in the first place— and who are then willing and able 
to spend the significant time and resources necessary 
to “satisfy the heavy burden required for preliminary 
injunctive relief.” Pet. App. 47a. To be sure, individual 
litigants are sometimes in a position to bring Section 2 
cases and obtain preliminary relief. But the obstacles 
are so grea t— and the harm  from  even tem porary



14

im plem entation o f  a d iscrim in atory  votin g  change 
so high— that case-by-case litigation is, as Congress 
recognized, inadequate to protect against that harm.

P riva te  litigan ts  are u n lik ely  to m arshal the 
information, resources, and evidence necessary to obtain 
preliminary relief from discriminatory voting changes. 
A s with other examples o f discrim inatory exclusion 
from the “opportunity to participate in the democratic 
process,” Powers v. Ohio, 499 U.S. 400,406-408,414-415 
(1991) (identifying voting and jury  service as the “most 
significant” such opportunities), individual citizens often 
“possessG little incentive or resources to set in motion the 
arduous process needed to vindicate [their] own rights,” 
Holland v. Illinois, 493 U.S. 474,489 (1990) (Kennedy, J., 
concurring). That is particularly true in the voting rights 
context, since Section 2 cases are usually “very, very 
costly” and complex. Fannie Lou Hamer, Rosa Parks, and 
Coretta Scott King Voting Rights Act Reauthorization 
and Amendments Act o f2006 (Part I): Hearing before the 
Subcomm. on the Constitution of the H. Comm, on the 
Judiciary, 109th Cong. 65 (2006) (testimony of J. Gerald 
Hebert).

Although DOJ and private litigants may be able 
to muster the resources in particular cases to obtain 
preliminary relief, they cannot do so for all of the tens of 
thousands of voting changes that the preclearance process 
currently covers. The dissent below suggested that DOJ 
could simply transfer “whatever resources it stopped 
spending on § 5” not only to fund its own Section 2 cases, 
but also to assume the costs o f private litigation. Pet. 
App. 77a. But the costs of litigation are so much greater 
than the costs of preclearance that it blinks reality to



15

suppose that such a transfer of resources would result 
in funding litigation on the scale needed to substitute for 
preclearance.

Third, the prospect that every voting change will 
be review ed produces Section 5’s “ m ost significant 
impact”: its deterrent effect. 152 Cong. Rec. S7969 (2006) 
(testimony o f Sen. Dianne Feinstein). Officials within the 
covered jurisdictions know that every voting change will 
be reviewed by DOJ for the potential effect on minority 
voters. That review makes officials more mindful, leading 
them to exercise a greater degree o f due diligence in 
considering the potential impacts o f new voting laws. 
As Congress found, “ the existence of Section 5 deterred 
covered jurisdictions from  even attempting to enact 
discriminatory voting changes.” H.R. Rep. No. 109-478, 
supra, at 24.

Case-by-case litigation lacks a comparable deterrent 
effect. Individual plaintiffs will be able to review and 
challenge a voting change only if they receive notice of that 
change and then muster sufficient resources to initiate 
an action. While certain large voting changes (such as 
redistricting) may regularly attract individual lawsuits, 
see Pet. Br. 20, smaller and more local voting changes will 
often and predictably escape any genuine scrutiny— even 
though such changes often have the most significant effect 
on individual voters’ lives. See Voting Rights Act: Section 5 
of the Act— History, Scope, and Purpose: Hearing before 
the Subcomm. on the Constitution of the H. Comm, on the 
Judiciary, 109th Cong. 84 (2005). Case-by-case litigation 
thus does not replicate the same powerful deterrent effect 
that currently prevents discriminatory voting changes 
from being implemented in the first instance.



16

For these reasons, case-by-case litigation has not 
since 1965 stood by itself as the sole remedy for voting 
discrimination in the covered States. Shelby County and its 
amici do not dispute that the preclearance requirements 
in covered jurisdictions have been responsible for much 
of the progress that the Voting Rights Act has achieved 
during the last fifty years. See Pet. Br. 22 (“ The Voting 
Rights Act of 1965 changed the course of history in the 
covered jurisdictions.” ); Br. for Amici Curiae Arizona et 
al. 4 (“ Section 5 was an important and necessary part of 
the effort to end voter discrimination in this country.. .  .” ).2 
Eliminating the preclearance process altogether would 
fundamentally change the legal landscape in the covered 
States, creating a regu la tory  vacuum  in the space 
that preclearance once occupied to protect the m ost 
fundamental political right. See Reynolds, 377 U.S. at 567 
(“ To the extent that a citizen’s right to vote is debased, he 
is that much less a citizen.” ).

II. The Bailout and Bail-in Procedures of the Voting 
Rights Act Provide a Tailored Response to 
Changing Local Conditions and Thereby Defeat 
This Facial Challenge to the Act’s Geographic 
Coverage

1. When Congress enacted Section 5, it limited the 
application of preclearance through a unique tailoring 
m echanism . R ather than applying nationw ide, the

2 For example, one researcher has found a positive statistical 
correlation between Section 5 and voter registration and turnout 
in California. See Jessica Lee, The Effects of Section 5 of the 
Voting Rights Act: A California Case Study (May 20, 2009) 
(unpublished honors thesis, Stanford University), available at 
http://publicpolicy.stanford.edu/node/349.

http://publicpolicy.stanford.edu/node/349


17

preclearance process was lim ited to only a discrete 
number of covered jurisdictions identified by the coverage 
formula of Section 4(b). 42 U.S.C. § 1973b(b). And rather 
than being static, Section 5’s geographic range has always 
been subject to revision under two procedures that 
Congress has periodically liberalized to more accurately 
reflect current conditions. The bailout procedure, Section 
4(a), permits a covered jurisdiction to terminate its Section 
5 obligations upon a showing that it no longer suffers from 
voting discrimination. 42 U.S.C. § 1973b(a). The bail-in 
procedure, Section 3(c), addresses the opposite concern: 
it permits noncovered jurisdictions to be brought within 
the ambit of Section 5 upon a showing that they do suffer 
from voting discrimination. 42 U.S.C. § 1973a(c).

Like the preclearance process, the Voting Rights Act’s 
tailoring mechanism is itself an “extraordinary departure” 
from Congress’s ordinary way of applying legislation. Cf. 
Presley v. Etowah County Comm’n, 502 U.S. 491, 500 
(1992). Congress’s other remedial legislation rarely, if ever, 
goes to such lengths to tailor the burdens of a federal law. 
Outside the voting rights area, when Congress determines 
that remedial legislation is needed, it generally enacts 
laws that interfere with state sovereignty nationwide, 
even when the evidence of constitutional violations comes 
from only a handful of States. See Nevada Dep’t of Human 
Res. v. Hibbs, 538 U.S. 721, 730-32 (2003) (explaining the 
record underlying the Family and Medical Leave Act); 
see also id. at 753 (Kennedy, J., dissenting) (criticizing 
the legislative record for focusing on only three States).

And Congress’s enactments are usually permanent, 
with no opportun ity— other than the possib ility  o f 
legislative amendment— for the States to contend that



18

they no longer fall within the original justification for 
a law. Thus, this C ourt has upheld several statutes 
abrogating state sovereign immunity for civil rights laws 
on the basis o f evidence of state discrimination preceding 
each enactment. See Tennessee v. Lane, 541 U.S. 509, 
524-26 (2004) (disability); Hibbs, 538 U.S. at 730 (gender); 
Fitzpatrick v. Bitzer, 427 U.S. 445 (1976) (race). But this 
Court has never suggested that these statutes must be 
reevaluated to determine whether current conditions 
continue to justify these laws.

The Voting Rights A ct’s tailoring mechanism departs 
from both of these ordinary characteristics of federal 
rem edial legislation, and in each case it does so in 
order to reduce the intrusion on state sovereignty. The 
targeted rather than nationwide scope of the preclearance 
process prevents Section 5 from applying more broadly 
than necessary, confining it to those regions o f the 
country where Congress had specific evidence of voting 
discrimination. See City of Boerne v. Flores, 521 U.S. 
507, 532-33 (1997) (discussing Voting Rights Act). And 
the bailout and bail-in procedures perm it Section 5’s 
coverage to be adjusted to more accurately reflect current 
conditions. 2

2. Shelby County seeks to invalidate here only one part 
of this integrated scheme, Section 4(b), on the argument 
that the coverage formula is “outdated.” Pet. Br. 13,57. But 
the baseline established by Section 4(b) was imperfectly 
tailored almost from the beginning, and has nonetheless 
repeatedly been sustained against that challenge. As this 
Court acknowledged in upholding Section 4(b) in 1966, 
even at the outset the coverage formula did not include 
every jurisdiction that engaged in voting discrimination,



19

and evidence of voting discrimination was much stronger 
for some covered jurisdictions than for others. South 
Carolina v. Katzenbach, 383 U.S. 301, 329-30 (1966).

But Congress never intended Section 4(b) to operate 
alone to identify covered jurisd ictions. Rather, the 
coverage formula has always been part o f a dynamic 
process of both exempting and including jurisdictions from 
the preclearance process based on changing conditions and 
experience. The baseline established by Section 4(b) thus 
reflected historical experience without giving that history 
controlling weight. And the bailout and bail-in provisions 
were enacted and later amended precisely to adapt the 
actual coverage o f Section 5 to current conditions.

Today, the statutory triggers of Section 4(b) no longer 
accurately describe the areas of the country covered by 
Section 5 because successful bailouts and bail-ins have 
updated the list of jurisdictions to which the preclearance 
process applies. See U.S. Br. App. la -lla . The progress 
of this tailoring process may not be as swift as Shelby 
County and its amici prefer. But Congress is permitted 
to proceed by incremental steps in addressing national 
problems; it need not “embrace all the evils within its 
reach” when it legislates, NLRB v. Jones & Laughlin 
Steel Corp., 301 U.S. 1,46 (1937), and its decision to do so 
“warrants considerable deference,” FEC v. Nat’l Right to 
Work Comm., 459 U.S. 197, 209 (1982). With the Voting 
Rights Act, Congress built into the statute itself a process 
to incrementally alter the reach of Section 5. That tailoring 
mechanism is a virtue of the Act because it is so solicitous 
of the sovereignty of the covered States; it is not, as Shelby 
County would have it, a flaw that requires invalidating the 
preclearance process altogether.



20

3. The amici states opposing the 2006 reauthorization 
contend that bailout and bail-in  are not practically  
available remedies. See Br. for Amici Curiae Arizona 
et al. 27; Br. for Amicus Curiae Alaska 29. But Amici 
States’ experience demonstrates otherwise. The 1982 
amendments to the A ct “ made bailout substantially 
more perm issive” in two ways: it “allowed bailout by 
any jurisdiction with a ‘clean’ voting rights record over 
the previous ten years” ; and it permitted any political 
subdivision within a covered State to seek bailout. Pet. 
App. 9a; see Voting Rights A ct Amendments o f 1982, 
Pub. L. No. 97-205 § 2(b)(2), 96 Stat. 131, 131 (codified, 
as amended, at 42 U.S.C. § 1973b(a)(l)). As a result of 
those amendments, every covered jurisdiction that has 
requested a bailout since 1984 has received it. Civil Rights 
Div., DOJ, Section 4 of the Voting Rights Act, http://www. 
justice.gOv/crt/about/vot/misc/sec_4.php#bailout_list (last 
visited Jan. 31,2013).

C o n g ress  h eard  testim on y  that th ese  bailou t 
applications were neither costly nor time-consuming. 
“ Legal expenses for the entire process of obtaining a 
bailout are on average about $5000.” Voting Rights Act: 
An Examination of the Scope and Criteria for Coverage 
Under the Special Provisions of the Act: Hearing before 
the Subcomm. on the Constitution of the H. Comm, on the 
Judiciary, 109th Cong. 90 (2005) (statement of J. Gerald 
Hebert). And generally it takes less than five months to 
obtain a court order terminating a political subdivision’s 
Section 5 responsibilities— indeed, one political subdivision 
in California was bailed out within ninety days of filing 
its petition, see Alta Irrigation District v. Holder, No. 
ll-cv-758 (D.D.C. July 15, 2011) (consent judgment and 
decree), available at http://www.justice.gov/crt/about/

http://www
http://www.justice.gov/crt/about/


21

vot/misc/alta_cd.pdf, although the process has sometimes 
been more prolonged, see Br. for Amicus Curiae Merced 
County, California, in Support o f No Party 30-35. This 
experience demonstrates that the bailout procedure is 
a workable mechanism that allows eligible jurisdictions 
to exempt themselves from the requirements of Section 
5. See H.R. Rep. No. 109-478, supra, at 61 (bailout “has 
proven to be achievable to those jurisdictions that can 
demonstrate an end to their discriminatory histories”).

The bail-in provision has likewise been used to 
extend preclearance to a number of formerly noncovered 
jurisdictions, on the basis o f specific findings that those 
jurisdictions suffer from  voting discrim ination. See 
generally Travis Crum, Note, The Voting Rights Act’s 
Secret Weapon: Pocket Trigger Litigation and Dynamic 
Preclearance, 119 Yale L.J. 1992,2010 (2010) (discussing 
bail-in examples). For example, in Jeffers v. Clinton, 
Arkansas was bailed in after the district court found 
that “ [t]he State ha[d] systematically and deliberately 
enacted” certain voting laws “ in an effort to frustrate 
black political success in elections traditionally requiring 
only a plurality to win.” 740 F. Supp. 585, 586 (E.D. Ark. 
1990). New Mexico was likewise brought within the scope 
of Section 5 after a district court found that the State’s 
1982 redistricting plan constituted “a racially-motivated 
gerrymander.” See Sanchez v. King, No. 82-0067-M, slip 
op. at 129 (D.N.M. Aug. 8,1984). Finally, several political 
subdivisions have been required to submit voting changes 
for preclearance, again after specific findings that they 
engaged in voting discrimination. See U.S. Br. App. la-3a. 4

4. Shelby County concedes that the bail-in procedure 
is a “ targeted” and “ appropriate means o f imposing



22

preclearance” based on a contemporaneous finding that a 
noncovered jurisdiction has engaged in “unconstitutional 
voting discrimination.” Pet. Br. 57. But it contends that 
“bailout is incapable of saving Section 4(b),” in essence 
because there is not a one-to-one correspondence between 
the reasons for a jurisdiction’s original inclusion, and the 
criteria for its bailout. Pet. Br. 54-55.

This argum ent in correctly  assum es that state 
sovereignty not only mandates a bailout procedure, but 
also requires that procedure to take a particular form. 
This Court has never so limited Congress’s power. As 
noted earlier, outside the voting rights area, none of 
the laws that Congress has recently enacted pursuant 
to its enforcem ent powers under the Reconstruction 
Amendments offer an exemption procedure to the States. 
As a result, the mere existence of bailout and bail-in makes 
Section 5 more respectful of state sovereignty than other 
federal legislation enforcing those amendments.

In any event, whatever objections covered jurisdictions 
may have to the current administration of the bailout 
procedure, that procedure is more suited than this facial 
challenge as a mechanism for responding to changing 
conditions in this country. By providing a specialized 
process for adjusting the coverage of Section 5, the bailout 
procedure, along with the bail-in procedure, permits 
individual jurisdictions to “ create a factual record ” 
supporting their claims about the proper reach of the 
preclearance process. United States v. Georgia, 546 U.S. 
151,160 (2006) (Stevens, J., concurring).

Some other state amici have also raised objections 
to DOJ’s particular interpretation or enforcement of the 
Voting Rights Act. See, e.g., Br. for Amici Curiae Arizona



23

et al. 25-27; Br. for Amicus Curiae Texas 3-4; Br. for 
Amicus Curiae Alabama 14-20. But complaints about 
individual enforcement efforts— on which this group of 
Amici States takes no position— do not undermine the 
facial validity of Sections 4(b) and 5. This Court has 
recently made clear that the mere fact that a statute 
might “ in practice” be unconstitutionally enforced does 
not require its facial invalidation when the statute “could 
be read” and enforced in a manner that “avoid[s] these 
concerns.” Arizona v. United States, 132 S. Ct. 2492,2509 
(2012). As a result, the other state amici’s complaints 
about specific, allegedly improper enforcement efforts are 
best left to individual litigation, where courts can examine 
the “ specific facts” necessary to determ ine whether 
DOJ’s actions were reasonable. Extension of the Voting 
Rights Act: Hearings before the Subcomm. on Civil and 
Constitutional Rights of the H. Comm, on the Judiciary, 
97th Cong. 2122 (1981) (statement of Drew Days).

R ejecting Shelby County’s facial challenge here 
would not foreclose future bailout petitions or individual 
proceedings challenging DOJ’s enforcement decisions. In 
some of those proceedings, individual jurisdictions may 
be able to prove that preclearance is no longer necessary 
due to their unique facts, or that DOJ’s application of the 
Voting Rights Act is unreasonable. But that possibility 
is not a proper basis to forbid the application of Section 
5 “ wholesale” to any jurisdiction, Ayotte v. Planned 
Parenthood ofN. New England, 546 U.S. 320,331 (2006); 
see Lane, 541 U.S. at 530 (limiting review of Title II of 
the Americans with Disabilities Act to the particular 
application at issue, access to the courts, rather than 
“ its wide variety of applications” ). In the meantime, 
sustaining Sections 4(b) and 5 on their face would permit



24

the unique remedy of preclearance to continue in the 
covered States— preserving and extending the historic 
accomplishments that the Voting Rights Act has already 
achieved.

CONCLUSION

The judgm ent o f the court o f appeals should be 
affirmed.

Respectfully submitted,

K amala D. Harris 
Attorney General 
of California 

13001 Street 
Sacramento, CA 94244

Jim Hood 
Attorney General 
of Mississippi 

RO. Box 220 
Jackson, MS 39205

Roy Cooper 
Attorney General 
of North Carolina 

P.O. Box 629 
Raleigh, NC 27602

E ric T. Schneiderman 
Attorney General of the 
State of New York 

Barbara D. Underwood* 
Solicitor General 

Cecelia C. Chang 
Deputy Solicitor General 

Steven C. W u 
Special Counsel to the 
Solicitor General 

120 Broadway 
New York, NY 10271 
(212) 416-8020 
barbara.underwood 

@ag.ny.gov
*Counsel of Record





AFFIDAVIT OF SERVICE

SUPREME COURT OF THE UNITED STATES 

No. 12-96
------------------------ ---------------------------------------------------------------------------------- x

SH ELBY COUNTY, ALABAM A,

Petitioner,

v.

E R IC HOLDER, JR., IN HIS O FFICIAL CAPACITY 
AS ATTORN EY G EN ERAL OF THE UN ITED STATES, ET AL.,

Respondents.

■X

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SUPREM E COURT OF THE U N ITED STATES

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SH ELBY COUNTY, ALABAM A,

Petitioner,

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ER IC HOLDER, JR., IN HIS O FFICIAL CAPACITY 
AS ATTO RN EY G EN ER AL OF THE UN ITED STATES, ET AL.,

Respondents
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