Northwest Austin Municipal Utility Distr. One v. Holder Brief of Barbara Lee et al. as Amici Curiae

    No. 08-322

In  The

Jinpreme (Hourt ci ttje JMnitefr S tates

Northwest Austin  Municipal Utility  District 
Number  One ,

Appellant,

ERIC H older, Attorney General of the United States, 
et al.

Appellees.

On Appeal from the United States District Court 
for the District of Columbia

BRIEF OF BARBARA LEE, MEMBER OF CONGRESS 
AND CHAIR OF THE CONGRESSIONAL BLACK 

CAUCUS, NYDIA VELAZQUEZ, MEMBER OF 
CONGRESS AND CHAIR OF THE CONGRESSIONAL 

HISPANIC CAUCUS AND MICHAEL HONDA, 
MEMBER OF CONGRESS AND CHAIR OF THE 
CONGRESSIONAL ASIAN PACIFIC AMERICAN 

CAUCUS, ET AL., AS AMICI CURIAE IN SUPPORT 
OF APPELLEES

Juan Cartagena 
Counsel of Record 
Com munity  Service 
Society
105 East 22 Street 
New York, NY 10010 
(212) 614-5462

Kareem Crayton 
University of Southern  
California  Gould 
School of Law  
699 Exposition Boulevard 
Los Angeles, CA 90089 
(213) 740-2516



1

TABLE OF CONTENTS

TABLE OF AUTHORITIES.......................................... ii
INTEREST OF AMICI CURIAE................................... 1
SUMMARY OF ARGUMENT..................................   2
ARGUMENT................................................   4
I. The Diversity in Contemporary Politics Is a

By-Product of Steadfast Voting Rights 
Enforcement...............................     4

II. Expansion and Retrenchment in the Long
Struggle to Extend the Franchise to Minority 
Voters...........................................................................9

III. Congress Found That Minority Voters Face
Ongoing Voting Discrimination in the 
Covered Jurisdictions..................................... .......13

IV. Preclearance Is a Crucial Tool for Realizing
America's Democratic Goals..................................20

CONCLUSION................  24
APPENDIX A

Listing of Amici Curiae...............................     25
APPENDIX B

Racial Gaps in Voter Registration.............................. 30
APPENDIX C

Members of Congressional Asian Pacific
American Caucus....................................................... 31



11

APPENDIX D
Members of Congressional Black Caucus............ 33

APPENDIX E
Members of Congressional Hispanic Caucus........ 35



Ill

TABLE OF AUTHORITIES

Cases
Bartlett v. Strickland, No. 07-689, 2009 WL 578634, 
(U.S. 2009)...................................... ...................... ..........9
Johnson v. DeGrandy 512 U.S. 997 (1994)....... 22
Lopez v. Monterey County, 525 U.S. 266 (1999)...... 14
NAMUDNO u. Mukasey, 573 F. Supp. 2d 221 (D.D.C. 
2008)................................................................................ 13
South Carolina v. Katzenbach, 383 U.S. 301 
(1966)...............................................................................10
United States v. Cruikshank, 92 U.S. 542 (1875)....11 
United States v. Reese, 92 U.S. 214 (1875)............... 11

Constitutional Provisions
U.S. Const, amend. X IV ..........................................2, 20
U.S. CONST, amend. XV......................................2, 11, 20

Statutes
42 U.S.C. § 1973 (West 2006).............................passim

Legislative Materials
152 Cong. Rec. H5143-5164 (daily ed.

July 13, 2006)................................................ ...passim
H.R. Rep. No. 109-478 (2006)..........................passim



IV

Reauthorizing the Voting Rights Act’s Temporary 
Provisions: Policy Perspectives and Views from the 
Field: Hearing on S. 2703 Before the Subcomm. on the 
Constitution, Civil Rights and Prop. Rights of the S. 
Comm, on the Judiciary, 109th Cong. (2006)... 16, 18
Renewing the Temporary Provisions of the Voting 
Rights Act: Legislative Options After LULAC v. Perry: 
Hearing on S. 2703 Before the Subcomm. on the 
Constitution, Civil Rights and Prop. Rights of the S. 
Comm, on the Judiciary, 109th Cong. (2006).......... 17
The Continuing Need for Section 5 Pre-Clearance: 
Hearing on S. 2703 Before the S. Comm, on the 
Judiciary, 109th Cong. (2006).................................. 19
To Examine the Impact and Effectiveness of the 
Voting Rights Act: Hearing on H.R. 9 Before the 
Subcomm. on the Constitution of the H. Comm, on the 
Judiciary, 109th Cong. (2005)......................................17
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, H. Comm, on the Judiciary, 109th 
Cong. (Oct. 20, 2005)....................................................... 7
Voting Rights Act: Section 5—Preclearance
Standards: Hearing Before the Subcomm. on the 
Constitution of the H. Comm, on the Judiciary, 109th 
Cong. (2005)..................................................................10

Voting Rights Act: Section 203 Bilingual Election 
Requirements: Hearing Before the Subcomm. on the 
Constitution, H. Comm, on the Judiciary, 109th Cong. 
(Nov. 8, 2005)............................................................... 12



V

Voting Rights Act: The Continuing Need for Section 5: 
Hearing Before the Suhcomm. on the Constitution of 
the H. Comm, on the Judiciary, 109th Cong. (2005)..14
Voting Rights Act: Section 5 of the Act—History, 
Scope, and Purpose: Hearing on H.R. 9 Before the 
Subcomm. on the Constitution of the H. Comm, on the 
Judiciary, 109th Cong. (2005).....................................17

Other Authorities
Alvaro Bedoya, The Unforseen Effects of Georgia v. 
Ashcroft on the Latino Community, 115 YALE L.J. 
2112 (2006)..................................... ............................. 18

David Bositis, J o in t  Ce n te r  f o r  P o l it ic a l  & 
E c o n o m ic  St u d ie s , B la c k  E le c te d  O f f ic ia l s : A  
St a t is t ic a l  Su m m a r y  2000 (2002).............................6

Brief of Appellant Northwest Austin Municipal 
Utility District Number One, NAMUDNO v. Holder, 
No. 08-322 (2009).............................  9

Brief for Intervenors-Appellees Rodney and Nicole 
Louis, et al.; Lisa and David Diaz, et al.; Angie 
Garcia, et al.; and People for the American Way, 
NAMUDNO v. Holder, No. 08-322 
(2009).....................................................................16, 19
Brief of Reps. John Conyers, Jr. et al. as Amici 
Curiae in Support of Appellees, NAMUDNO v. 
Holder, No. 08-322 (2009).............................................15

David S. Broder & Kenneth Cooper, Asian Pacific 
Caucus Wash. Post May 22, 1994 at 10......................7



VI

Chandler Davidson & Bernard Grofman, Eds. 
Quiet Revolution in the South (1994)................... 6

Alexander Keyssar, The Right to Vote
(2000) ........................................................................................ 10, 11

J.. Morgan Kousser, The Voting Rights Act & Two 
Reconstructions in CONTROVERSIES IN MINORITY 
VOTING 135. (Bernard Grofman & Chandler 
Davidson eds., 1992).........................................4, 10, 11

John Lewis, Walking with the Wind: A Memoir of 
the Movement (1999).................................................. 5

NALEO Educ. Fund, Nat’l Ass’n of Latino Elected 
& Appointed Officials, 2008 General Election 
Profile: Latinos in Congress and State
Legislatures After Election 2008: A State-By - 
State Summary (2008).................................................6

National Asian Pacific American Political 
Almanac 2007-08 (Don T. Nakanishi & James S. Lai 
eds., 13th ed.
2007)................................................................................. 7

Sandra D. O’Connor, Thurgood Marshall: The
Influence of a Raconteur, 44 STAN. L. Rev. 1217 
(1992)...............................................................................22



Vll

C. V a n n  W o o d w a r d , T he  Fu tu r e  of  th e  P a st

(1989)............................................... ............................... 4

C. V a n n  W o o d w a r d , R e u n io n  a n d  R e a c t io n

(1956)..............................................................................11



INTEREST OF AMICI CURIAE

Amici curiae1 are elected members of the 
United States House of Representatives.2 These 
elected officials include 41 members of the 
Congressional Black Caucus (“CBC”), 23 members of 
the Congressional Hispanic Caucus (“CHC”), and 11 
members of the Congressional Asian Pacific 
American Caucus (“CAPAC”) (collectively, the “Tri- 
Caucus”).3 These caucuses were established to 
provide representation and constituency service for 
millions of American voters from communities whose 
experiences with racial discrimination in voting 
prompted passage of the Voting Rights Act of 1965. 
The growth of each caucus’s membership has made 
Congress more racially diverse and inclusive, in large 
part due to the successful enforcement of the Voting 
Rights Act’s preclearance provisions in covered 
jurisdictions. Many of these members publicly

1 Letters of consent by the parties to the filing of this brief 
have been lodged with the Clerk of Court pursuant to Rule of 
the Supreme Court of the United States 37.3. In accordance 
with Rule of the Supreme Court of the United States 37.6, amici 
curiae certify that no counsel for a party authored this brief in 
whole or in part and that no person or entity, other than amici 
curiae and their counsel, made a monetary contribution to the 
preparation or submission of this brief.

2 A complete listing of all amici is attached as Appendix A.
3 Each of the three caucuses has at least one member who 

is a U.S. Senator. The signatories to this brief are all members 
of the U.S. House of Representatives. Further, some members 
belong to multiple caucuses. See Appendices C-E.



2

supported and cast floor votes in favor of extending 
the preclearance provisions in 2006.4

The two issues presented in this case are (1) 
whether petitioner-appellant, a local utility district in 
Texas, is entitled to preclearance “bailout”, under 
Section 4(a) of the Voting Rights Act and (2) if not, 
whether the recently renewed preclearance 
provisions of the Act remain a constitutionally valid 
exercise of Congress’s authority to root out racial 
discrimination in the area of voting as embodied by 
Section 2 of the Fifteenth Amendment and Section 5 
of the Fourteenth Amendment. Because of the Act’s 
effective record of deterring discrimination in the 
voting process, amici have an interest in defending 
the preclearance regime to secure the voting rights of 
the millions of Americans they serve.

SUMMARY OF ARGUMENT

Amici curiae strongly contend that the 
preclearance requirement outlined in Section 5, 42 
U.S.C. § 1973 [hereinafter Section 5], of the Voting 
Rights Act remains a permissible and effective 
statutory tool for eliminating and deterring voting 
discrimination in the political process. Section 5 
helps to ensure that state and local jurisdictions do 
not implement discriminatory voting changes that

4 Other members took office following the reauthorization 
of the Voting Rights Act in 2006, but signal their support for the 
legislation by joining as amici herein.



3

might otherwise deny or abridge the right to vote 
with respect to race.

Steadfast enforcement of the Voting Rights 
Act, which provides opportunities for voters to 
participate in the political process and to elect their 
candidates of choice, has led to greater diversity in 
Congress along with many state and local legislative 
bodies. But these changes are of a relatively recent 
vintage. This is particularly so when compared to the 
extended period in which the denial and abridgement 
of the franchise was the norm.

While the advancements for minority voters 
are rightly lauded, the lesson of America’s difficult 
history of race and politics teaches that these gains 
are often fragile. The efforts to secure greater levels 
of political incorporation for racial minority groups 
have played and continue to play an important role in 
American Democracy. Yet, as the Jim Crow 
experience following the derailed Reconstruction 
aptly demonstrates, withdrawing federal protections 
that effectively remedy and deter discrimination 
effectively should be approached with great care.

In light of this history along with a thorough, 
carefully reviewed record of ongoing voting 
discrimination in those jurisdictions covered by 
Section 5, Congress renewed the preclearance 
requirement with an overwhelmingly bi-partisan vote 
in 2006. See 152 CONG. REC. H5148 (daily ed. July 
13, 2006) (statement of Rep. Melvin Watt) (noting 
that the re authorization was “the product of a long­



4

term, thoughtful, and thorough bipartisan 
deliberation” and that the Voting Rights Act is 
“arguably the most carefully reviewed civil rights 
measure in our Nation's history.”). That extension 
was fully warranted to help complete the important 
task commenced in 1965 — to ensure that every 
American, regardless of race, enjoys an equal voice in 
our nation’s governance. Accordingly, this Court 
should find that the reauthorization of Section 5 was 
within the proper scope of Congressional enforcement 
authority under the Fourteenth and Fifteenth 
Amendments.

ARGUMENT

I. The Diversity in Contemporary Politics Is 
a By-Product of Steadfast Voting Rights 
Enforcement.

The Voting Rights Act of 1965 “is about 
protecting the most basic and significant civil right [ ] 
for all American citizens, the right to vote.” 152 
CONG. REC. H5152 (daily ed. July 13, 2006)
(statement of Rep. Grace Napolitano). Many describe 
the initial passage of the Voting Rights Act as the 
start of America’s Second Reconstruction. J.. Morgan 
Kousser, The Voting Rights Act & Two 
Reconstructions in CONTROVERSIES IN MINORITY 
VOTING 135, 136-37. (Bernard Grofman & Chandler 
Davidson eds., 1992); see also C. Vann Woodward, 
Th e  Fu tu r e  o f  th e  Pa s t  199 (1989). The Act came in 
the aftermath of an era characterized by rampant 
discrimination and brutality. Amici John Lewis (D-



5

GA) reminded Congress in 2006 about the immediate 
events in March, 1965 that first moved Congress to 
enact this landmark statute. Long before he was 
elected to political office, Representative Lewis was a 
disenfranchised minority voter seeking to have his 
voice heard: “When we marched from Selma to
Montgomery in 1965, it was dangerous. It was a 
matter of life and death. I was beaten, I had a 
concussion at the bridge. I almost died. I gave blood, 
but some of my colleagues gave their very lives.” 152 
CONG. REC. H5164 (daily ed. July 13, 2006)
(Statement of Rep. John Lewis); see also John Lewis, 
W a l k in g  w ith  th e  W in d : A M e m o ir  of th e  
MOVEMENT (1999). Passage of the Voting Rights Act 
has helped to transform the political landscape in a 
variety of ways, and signs of the change are evident 
in today’s politics.5

For minority groups that have experienced 
unlawful political exclusion, electing preferred 
candidates is an important barometer of their 
incorporation. On this score, notable gains have been 
made in legislatures at the state and federal levels. 
These gains are attributable, in large part, to the 
important protections and safeguards provided by the 
Voting Rights Act and its Section 5 preclearance

5 One of the primary concerns of the Act is increasing 
political participation. Data on registration and turnout during 
the relevant enforcement period shows signs of progress for all 
three non-white communities. See Appendix B. Still, a sizable 
lag in these measures remains -  particularly for Hispanic and 
Asian American populations -- relative to the national average.



6

remedy. See 152 CONG. REC. H5152 (daily ed. July 
13, 2006) (statement of Rep. Linda Sanchez) (“The 
Voting Rights Act plays a critical role in fulfilling the 
promise of American democracy. It has given voice to 
minority communities, and without it, many black, 
Hispanic, and Asian American leaders would not be 
holding elected office today.”). However, these gains 
remain fragile as a result of ongoing racially 
polarized voting and its manipulation by officials. By 
working to protect districts where minorities have an 
opportunity to elect candidates of choice, Section 5 of 
the Voting Rights Act has led to increased diversity 
in our nation’s state and federal legislative bodies. 
See generally QUIET REVOLUTION IN THE SOUTH. 
(Chandler Davidson & Bernard Grofman eds., 1994).

At the state level, the number of black legislators 
in preclearance states has grown since the last 
renewal of Section 5 in 1982. Between 1984 and 
1998, the number of black state legislators increased 
by at least fifty percent in several covered 
jurisdictions, including South Carolina, Georgia, 
Florida, New York and Mississippi. David Bositis, 
J o in t  Ce n te r  fo r  P o l itic a l  & E c o n o m ic  St u d ie s , 
B l a c k  E le c te d  O f f ic ia l s : A  S t a t is t ic a l  Su m m a r y  
2000 (2002), The ranks of Hispanic state legislators 
also show similar gains, rising from a national total 
of 69 in 1985 to 233 by 2006. Their advancement has 
been most pronounced in the States of California, 
Florida, Texas, and Arizona (all of which are, in 
whole or in part, subject to preclearance review). 
NALEO E d u c . Fu n d , Na t ’l A ss ’n  of La tin o  E le c te d  
& A pp o in te d  O f f ic ia l s , 2008 G e n e r a l  E le c tio n



7

P r o f il e : La t in o s  in  C o n g r e ss  a n d  Sta te
L e g isla tu r e s  A f t e r  E l e c t io n  2008: A S ta t e -By -

S ta te  SUMMARY (2008). Asian Americans now serve 
in a total of 90 state legislative seats nationwide. 
N a t io n a l  A s ia n  Pa c if ic  A m e r ic a n  P o l itic a l  
A lm a n a c  2007-08, 82 (Don T. Nakanishi & James S. 
Lai eds., 13th ed. 2007).

Amici themselves provide the clearest evidence of 
a changed environment in Congress. See, e.g., 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, H. 
Comm, on the Judiciary, 109th Cong. (Oct. 20, 2005) 
(statement of Rep. Sanchez), at 111 (noting that “as 
the only Latina on the House Judiciary Committee,” 
the hearings regarding the re authorization of the 
VRA are "significant to me and thousands [of] 
residents in my home state of California").

When they first organized, the CBC and CHC 
collectively numbered fewer than two dozen 
members. Over the last two decades, however, these 
groups have grown and have expanded their 
geographical reach. See Appendices C-E. The 
establishment of CAPAC in 1994 was another 
important milestone; its ten founding members 
represented progress when compared to the arrival of 
the lone Asian-American member of Congress who



8

served in the 1950s.6 These groups collectively help 
make the current Congress a significantly more 
representative body that better reflects the racial 
diversity of our nation.7 Moreover, these members 
are often at the center of legislative action; many 
hold key policymaking roles on Capitol Hill.

Critically, these signs of progress at the state 
and federal levels are directly linked to the critical 
benefits afforded by Section 5. In addition, this 
progress is an indicator that Section 5 operates 
successfully to prevent discrimination in many forms. 
Amici have well-founded concerns about the potential 
for backsliding and retrenchment in the absence of 
Section 5’s crucial protections. Throughout the 
reauthorization process, several amici urged their 
colleagues to support reauthorization in light of the 
significant work left to do. See, e.g., 152 CONG. Rec. 
H5146 (daily ed. July 13, 2006) (statement of Rep. 
John Conyers) (“And though there is much to 
celebrate, efforts to suppress or dilute minority 
votes...are still all too common. I am proud of the 
progress we have made, but the record shows that we 
haven't reached a point where the particular

6 See e.g., David S. Broder & Kenneth Cooper Asian Pacific 
Caucus WASH. P ost May 22, 1994, at A10 (discussing the 
membership and purposes of the CAPAC).

7 The current session of the U.S. House of Representatives 
also includes Rep. Keith Ellison of Minnesota (a member of the 
CBC) the country’s first Congressman of Muslim faith and Rep. 
Joseph Cao of Louisiana (a member of the CAPAC) its first 
Vietnamese-American Congressman.



9

provisions in the act should be allowed to lapse”); id., 
at H5148, (statement of Rep. Watt) (“We should be 
clear: although the successes of the Voting Rights
Act have been substantial, they have not been fast 
and they have not been furious. Rather, the 
successes have been gradual and of very recent 
origin. Now is not the time to jettison the expiring 
provisions that have been instrumental to the success 
we applaud today. In a Nation such as ours, we 
should want and encourage more Americans to vote, 
not fewer.”); id., at H5164 (statement of Rep. Lewis) 
(“Yes, we have made some progress. We have come a 
distance. We are no longer met with bullwhips, fire 
hoses, and violence when we attempt to register and 
vote. But the sad fact is, the sad truth is 
discrimination still exists, and that is why we still 
need the Voting Rights Act. And we must not go 
back to the dark path. We cannot separate the 
debate today from our history and the past we have 
traveled.”).

II. Expansion and Retrenchment In The Long 
Struggle to Extend the Franchise to 
Minority Voters.

A common theme found in the briefs filed by 
opposing parties and their aligned amici is that we 
have entered an era in which discrimination no 
longer seriously threatens the political rights of 
minority voters. See, e.g., Brief for Appellant 
Northwest Austin Municipal Utility District Number 
One, NAMUDNO v. Holder, No. 08-322, at 1-2, 27.



10

That notion simply is not consistent with America’s 
long experience with regulating the right to vote, 
particularly when it comes to extending the franchise 
to non-white citizens. Nor is it consistent with the 
record that was before Congress in 2006. As Justice 
Kennedy only recently observed, “racial 
discrimination and racially polarized voting are not 
ancient history.” Bartlett v. Strickland, No. 07-689, 
2009 WL 578634, at *16 (U.S. 2009). These recent 
steps toward full political incorporation remain 
fragile and therefore ought to be guarded carefully. 
This is precisely what Congress sought to do by 
carefully studying the effects of Section 5 and 
subsequently reauthorizing the preclearance remedy.

The voluminous Congressional record supporting 
the 2006 renewal includes testimony from scholars, 
litigators, historians, experts and others arguing that 
the right to vote has been contested at almost every 
point in this nation’s history. See Voting Rights Act: 
Section 5—Preclearance Standards: Hearing Before 
the Subcomm. on the Constitution of the H. Comm, on 
the Judiciary, 109th Cong. 67 (2005) While the 
historical evolution in America has been one in which 
we have moved to extend the franchise to previously 
excluded citizens, that movement has regrettably 
included periods of retrenchment and retraction. 
A l e x a n d e r  K e y s s a r , T he R ig h t  to  V ote  106 (2000). 
As Congress recognized in the 2006 reauthorization, 
the nation’s 19th century Reconstruction experience 
provides a very poignant and telling illustration of 
our nation’s voting rights struggle.



11

Ratification of the Fifteenth Amendment in 1870 
marked an important stage of the effort to secure the 
fundamental right of citizenship regardless of race. 
South Carolina v. Katzenbach, 383 U.S. 301, 326 
(1966). Within five years of the Amendment’s 
ratification, Congress passed bills prohibiting voter 
intimidation and bribery, establishing federal 
supervision of Congressional elections, and banning 
extralegal political violence. Kousser, supra at 138- 
39. During this period, black political participation 
spiked in Southern states, and black state and 
federal legislators from this region grew to 324 by 
1872 — the high point of the Reconstruction era. Ibid.

However, the nation’s commitment to 
enfranchise freedmen gave way to political 
compromise in 1877. C. VANN WOODWARD REUNION 
A nd  R e a c t io n  210-20 (1956). The twenty-five years 
that followed included the dismantling and reversal 
of anti-discrimination laws. Absent federal 
protections, black voters and officeholders had no 
effective means to defend against a widespread 
campaign to roll back their hard-won gains. Tactics 
used to restrict or dilute the franchise included 
gerrymandering, statutory suffrage restriction, and 
constitutional disfranchisement. All of these 
manipulative devices utilized state power and were 
designed with a patently unconstitutional goal -  to 
eliminate every element of black political influence in 
the South permanently. The strategy was feasible 
because the federal government had prematurely 
retreated from the goal of giving full force and effect 
to the Fifteenth Amendment. See, e.g., United States



12

v. Cruikshank, 92 U.S. 542, 559 (1875); United States 
v. Reese, 92 U.S. 214 (1875).

The change of fortunes for black political 
incorporation after 1877 was as precipitous as it was 
predictable. KEYSSAR, supra, at 114. As Southern 
disfranchising tactics became more successful, white 
supremacists regained political power in state and 
local government. They then moved quickly to
entrench their control over the political process by 
establishing a racially-exclusive political system. As 
a consequence of more restrictive and discriminatory 
provisions, black participation in all forms 
evaporated in the South. By 1898, the number of 
black state and federal lawmakers in the former 
Confederacy had plummeted to ten. The lone black 
member of Congress, George White from North 
Carolina, left office in 1901.

Blacks were not the only Americans subjected 
to these indignities of second-class citizenship. 
Following the Mexican-American War, the 1848 
Treaty of Guadalupe-Hidalgo granted citizenship to 
thousands of Hispanics who were living in the areas 
acquired by the United States. Thereafter, Mexican- 
Americans in particular, and Hispanics and general 
were saddled by a variety of state laws, including 
literacy tests, specifically designed to prevent them 
from exercising their right to vote. Chinese 
Americans were also barred from voting during this 
era. See Noting Rights Act: Section 203 Bilingual 
Election Requirements: Hearing Before the Subcomm. 
on the Constitution, H. Comm, on the Judiciary, 
109th Cong, at 6 (November 8, 2005) (statement of



13

Rep. Mike Honda) (noting ongoing voting 
discrimination faced by the Asian and Pacific 
American community and observing that "Chinese- 
Americans could not vote until the Chinese Exclusion 
Acts of 1882 and 1892 were repealed in 1943" and 
"[f]irst-generation Japanese-Americans could not vote 
until 1952, because of the racial restrictions 
contained in a 1790 naturalization law. . . ").

The ugly and prolonged period of racial 
disfranchisement between 1877 and 1965 is 
assailable both due to the denial of constitutional 
rights and governance that remained largely 
unresponsive to the concerns of minority citizens. 
During these years, national and state government 
actors embarked on programs that largely erased any 
semblance of equality for non-whites. Meanwhile, 
legislative efforts to prohibit lynching, segregation in 
housing and education, and other indignities met 
with incessant filibusters in the U.S. Senate leaving 
millions of minority citizens without effective 
representation or redress.

III. Congress Found That Minority Voters 
Face Ongoing Voting Discrimination in 
the Covered Jurisdictions

The historical record summarized above teaches 
that backsliding and retrenchment in the absence of 
Section 5 hold dire consequences for minority voters. 
The potential for backsliding was a significant 
concern in the 2006 Congressional decision to renew 
the Act. Amici and other members of Congress also 
heard testimony that helped illustrate these risks



14

from witnesses describing discriminatory voting 
changes that the Section 5 preclearance provision 
kept at bay. NAMUDNO v. Mukasey, 573 F. Supp. 
2d 221, 247-265 (D.D.C. 2008) Although Congress 
reviewed evidence from a variety of souces, amici 
highlight three categories here:

1. Non-Compliance with Section 5

One category of evidence demonstrating the 
ongoing need for preclearance enforcement is the 
persistent unwillingness of some jurisdictions to 
submit voting changes for review. As Congress 
found, this resistance illustrates a naked refusal by 
some jurisdictions to comply with the basic pre­
approval requirements codified within Section 5. See 
H.R. REP. No. 109-478, at 41-44 (2006); see also 152 
Cong. Rec. H.5143 (daily ed. July 13, 2006)
(statement of Rep. F. James Sensenbrenner) 
(“[Hjistory reveals that certain States and localities 
have not always been faithful to the rights and 
protections guaranteed by the Constitution, and some 
have tried to disenfranchise African American and 
other minority voters through means ranging from 
violence and intimidation to subtle changes in voting 
rules. As a result, many minorities were unable to 
fully participate in the political process for nearly a 
century after the end of the Civil War. The VRA has 
dramatically reduced these discriminatory practices 
and transformed our Nation's electoral process and 
makeup of our Federal, State, and local 
governments.”).



15

Three particular instances of non-compliance 
deserve special note. First, officials in the state of 
South Dakota made plain their disdain for the review 
process by avoiding the preclearance mandate for 
almost thirty years, leaving hundreds of voting 
changes unexamined. Voting Rights Act: The
Continuing Need for Section 5: Hearing Before the 
Subcomm. on the Constitution of the H. Comm, on the 
Judiciary, 109th Cong. 12 (2005) (statement of 
Laughlin McDonald). Officials subsequently found 
that several of these unsubmitted voting changes 
threatened the rights of Native American voters.

Congress also found persuasive similar findings 
made by this Court in Lopez v. Monterey County, 525 
U.S. 266, 273 (1999), that officials in Monterey 
County, California had wrongfully implemented state 
election law changes that had not undergone 
preclearance review. This Court also found that 
related laws dating as far back as 1979 had not, but 
should have been, submitted for federal preclearance. 
H.R. Rep. No. 109-478, at 42 (2006). In addition, 
Congress received evidence showing that federal 
courts in Monroe, Louisiana enjoined local elections 
in 1991 due to unreviewed changes in that 
jurisdiction’s election scheme. Id. at 43; see also Brief 
of Reps. John Conyers, Jr. et al. as Amici Curiae in 
Support of Appellees at 17, NAMUDNO v. Holder, 
No. 08-322 (2009).

Congress examined far more examples of 
jurisdictions failing to comply with the mandate of 
Section 5. But these examples are representative of



16

the kinds of cases that led Congress to find that more 
time was needed to assess the effect of and 
compliance with the preclearance mechanism in the 
covered jurisdictions.

2. Continued Preclearance Objections

A second category of record evidence that 
Congress reviewed is the significant number of 
proposed election changes that warranted 
preclearance objections. H.R. R e p . No. 109-478 at 21 
(2006). More than four decades after the enactment 
of Section 5’s preclearance requirement, some state 
and local jurisdictions continue to invite multiple 
objections. These objections offer extremely valuable 
insight about the frequency with which the 
preclearance remedy successfully prevents 
discriminatory changes in the election process from 
taking hold. See Brief for Intervenors-Appellees 
Rodney and Nicole Louis, et al.; Lisa and David Diaz, 
et al.; Angie Garcia, et al.; and People for the 
American Way at 30-33, NAMUDNO v. Holder, No. 
08-322 (2009) [hereinafter Brief for Intervenors- 
Appellees],

The redistricting of Louisiana’s state legislature 
offers one of the clearest examples of a state that has 
been especially resistant to change. Every initial 
redistricting plan adopted at the start of the decade 
has failed to satisfy the requirements for 
preclearance; indeed, the state has received at least 
one objection for this plan in every cycle since 1965.



17

Reauthorizing the Voting Rights Act’s Temporary 
Provisions: Policy Perspectives and Views from the 
Field: Hearing on S. 2703 Before the Subcomm. on the 
Constitution, Civil Rights and Prop. Rights of the S. 
Comm, on the Judiciary, 109th Cong. 132 (2006) 
[hereinafter S. Hearing 109-822] (statement of Debo 
P. Adegbile); Brief for Intervenors-Appellees, supra, 
at 34—35,).

Other jurisdictions have shown a proclivity for 
pursuing suspiciously-timed election changes. In 
Freeport, Texas, for example, the Department of 
Justice objected to a proposed change to an at-large 
system in 2002, just after a Hispanic- preferred 
candidate won office for the first time in a single 
member district. To Examine the Impact and 
Effectiveness of the Voting Rights Act: Hearing on 
H.R. 9 Before the Subcomm. on the Constitution of the 
H. Comm, on the Judiciary, 109th Cong. 7 (statement 
of the Hon. Jack Kemp, former Member of Congress, 
former Sec’y of Hous. & Urban Dev.) (2005); Voting 
Rights Act: Section 5 of the Act—History, Scope, and 
Purpose: Hearing on H.R. 9 Before the Subcomm. on 
the Constitution of the H. Comm, on the Judiciary, 
109th Cong. 47 (2005) (testimony of Anita S. Earls).

In Monterey County, California, a similar case 
involved the local school board. There, white board 
members sponsored a public ballot measure to 
prevent more Hispanic- preferred candidates from 
winning seats on that body. In objecting to that 
change, the Attorney General found that the 
proposed shift to at-large elections “contained



18

language that was expressed in a tone that ‘raises the 
implication that the petition drive and the resulting 
change was motivated, at least in part, by a 
discriminatory animus.’” Renewing the Temporary 
Provisions of the Voting Rights Act: Legislative 
Options After LULAC v. Perry: Hearing on S. 2703 
Before the Subcomm. on the Constitution, Civil Rights 
and Prop. Rights of the S. Comm, on the Judiciary, 
109th Cong. I l l  (2006) (statement of Joaquin G. 
Avila). In each instance, preclearance objections 
helped to shield minority voters from the 
discriminatory effects of proposed election changes.

3. Racially Polarized Voting

The Congressional record assembled evidence 
that revealed the deleterious effects of pervasive and 
persistent racially polarized voting in the covered 
jurisdictions. H.R. Rep. No. 109-478, at 34—35 (2006). 
Racially polarized voting facilitates purposeful 
discrimination because it permits jurisdictions to 
design methods of election or adopt devices that 
interact with the polarization to prevent minority 
voters from electing candidates of choice. Id, at 34.

Witnesses before Congress testified about several 
cases in which racially polarized voting patterns 
maintained an “election ceiling” that limited the 
political opportunity for non-white voters and their 
preferred candidates. Id. This pattern held true in 
cases for voters in different minority communities. 
As late as 2000, for instance, neither Hispanic nor



19

Native American candidates had ever won an election 
in a majority-white election district. Id. Since 1966, 
racial polarization remained a significant obstacle 
across the South to the success of black candidates 
for state legislative office outside of majority-black 
constituencies: “There is little support for the
optimistic view that blacks will win many House 
seats in white majority districts.” S. Hearing 109-822, 
supra, at 183 (statement of David T. Canon). 
Similarly, Hispanics are “rarely elected outside of 
Latino majority districts.” Alvaro Bedoya, The 
Unforseen Effects of Georgia v. Ashcroft on the Latino 
Community, 115 YALE L.J. 2112, 2136 (2006).

Additional evidence heard by Congress adds 
detail about the negative effects that polarization can 
have on minority- preferred candidates. Congress 
received testimony, for example from Professor 
Theodore Arrington, describing polarization as “a 
pervasive feature of American politics.” The 
Continuing Need for Section 5 Pre-Clearance: 
Hearing on S. 2703 Before the S. Comm, on the 
Judiciary, 109th Cong. 9 (2006) (testimony of 
Theodore S. Arrington).

There was also testimony that revealed the 
continuing existence of outright racial appeals in 
some jurisdictions— further evidence of continuing 
voting discrimination. In fact, in one successful 
campaign of a black candidate in North Carolina with 
the last name “Campbell,” the candidate elected to 
use a soup label rather than his own picture for all of 
his campaign literature. Id. at 141 (statement of



20

Anita S. Earls). Another example concerns a white 
voter in Southwestern Virginia who told a black 
Congressional candidate, who had attended a local 
political function: “It’s a pleasure to meet you. You 
speak very well. You would have done a lot better if 
you had not made an appearance here because you 
have a white last name...and we’re all voting for 
those candidates.” Id. at 140.

The examples described above are far from 
exhaustive. See, e.g., Brief for Intervenors-Appellees,

supra, at 14-52. Indeed, other evidence considered by 
Congress, and detailed in the parties’ briefs, includes 
the Department of Justice’s requests for more 
information (MIRs) regarding proposed voting 
changes; the deployment of federal observers to 
jurisdictions where minority voters face polling place 
barriers; Section 5 enforcement actions; judicial 
preclearance actions; and evidence yielded by 
litigation under other provisions of the VRA, 
including Section 2. Congress also heard powerful 
and compelling evidence from a significant number of 
witnesses, including constituents represented and 
served by amici, who helped animate the experience 
of minority voters throughout the covered 
jurisdictions.

In its totality, the record presented to Congress 
was replete with evidence showing problems that 
were widespread, intransigent, and recent. These 
lamentable findings quite vividly illustrate the extent



21

to which the preclearance requirement remains 
necessary to accomplish the transformative goals of 
the Fourteenth and Fifteenth Amendments.

IV. Preclearance Is a Crucial Tool for 
Realizing America’s Democratic Goals.

Amici contend that the preclearance requirement 
provides crucial protection for minority voters, many 
who live in jurisdictions they represent and serve in 
Congress. However, these voters are not the only 
ones whose core political rights are at stake in this 
case. The continued enforcement of Section 5 also 
advances an even larger institutional goal that 
inures to the benefit of every American citizen -  
pluralist democracy. In this sense, Section 5 helps to 
ensure that all citizens in the United States enjoy the 
benefit of a more accessible and equal political 
system.

Pluralist democracy recognizes the value of 
diversity within the political process, which can help 
produce a fuller, more comprehensive national policy. 
This notion is not at all foreign to the reasoning that 
led the Founders to establish the U.S. Constitution. 
They envisioned a nation that was sensitive to 
differences in ethnicity and class, and one that could 
employ these diverse interests in its dynamic system 
of governance and representation. One would be 
hard pressed to find a better expression of the 
pluralist ideal than in the motto E pluribus unum -  
out of many, one.



22

This principle is especially important in 
representative institutions like legislatures, whose 
main goal is to address the needs of the public. As 
House Minority Leader during the floor debate of the 
2006 renewal, Representative Nancy Pelosi (D-CA) 
conveyed this point well: “We all know that America 
is at its best when our remarkable diversity is 
represented in our Halls of power. We also know that 
we will still have a great distance to go in order to 
live up to our Nation's ideals of equality and 
opportunity.” 152 CONG. R e c . H5162. (daily ed. July 
13, 2006). A democratic institution based upon 
pluralism provides the building blocks necessary for 
politics to function well. Democratic pluralism helps 
establish a level playing field for individuals with 
cross-cutting interests and ideas to engage in the 
“push[ing], haul[ing], and trad[ing]” that is commonly 
associated with politics. See Johnson v. DeGrandy 
512 U.S. 997, 1020 (1994). Put another way, it 
provides the opportunity for coalition-building and 
compromise to emerge.

Many of the views relevant to shaping public 
policy are a function of life experience. Of course, 
common experience is not always bound up with 
membership in a particular racial group. However, 
our nation’s history is a unique one in which race 
has, at times, played a significant role in shaping life 
opportunities and outcomes. Thus, race may be one 
of the factors that inform perspectives and highlight 
otherwise overlooked effects of a policy proposal. In 
similar vein, Justice Sandra Day O’Connor



23

acknowledged the unique contributions to oral 
arguments and this Court’s conferences that the late 
Justice Thurgood Marshall imparted upon the court 
precisely because of his “life experiences.” Sandra D. 
O’Connor, Thurgood Marshall: The Influence of a 
Raconteur, 44 STAN. L. Rev. 1217, 1217 (1992).

In all of the manners described above, theVoting 
Rights Act helps government move closer to 
achieving the goals of a pluralist democracy. It 
establishes the forum for more meaningful 
deliberation in institutions, encourages more 
comprehensive and responsive policymaking, and 
ultimately strengthens the bond of accountability 
between voters and their governing institutions. As 
our country grows increasingly diverse, our 
governmental institutions must have the capacity to 
respond to complex problems.

The genius in the design of our constitutional 
system is that it remains open to innovative methods 
of making our Union more perfect. The Voting 
Rights Act and Section 5 are perhaps the best 
examples of this commitment to improving our 
democracy. Congress has, in light of historical 
experience and ample evidence of the present effects 
of long-term discrimination, found that the 
preclearance requirement remains an effective tool in 
this nation’s ongoing struggle to guarantee an equal 
right to vote to all, regardless of race. Accordingly, 
amici urge this Court to uphold Section 5 as a 
reasonable exercise of Congressional power and as a



24

fully warranted effort by Congress to continue the 
solemn task of perfecting our Union.

CONCLUSION

For all of these reasons, amici urge this Court to 
uphold the decision below and find that the 
preclearance provision remains a constitutionally 
valid exercise of legislative enforcement authority 
pursuant to the Fourteenth and Fifteenth 
Amendments.

Juan Cartagena 
Counsel of Record 
Com m unity  Service 
Society
105 East 22 Street 
New York, NY 10010 
(212) 614-5462

Respectfully submitted,

Kareem U. Crayton* 
University  of Southern  
California  Law  School 
699 Exposition Boulevard 
Los Angeles, CA 90089 
(213) 740-2516

March 25, 2009

* Assisted by Anna Faircloth (USC Law School, ’10) and 
Katy Sharp (USC Law School ’10)



25

APPENDIX A

LISTING OF AMICI CURIAE

Tri-Caucus Chairs
Barbara Lee, Member of Congress and Chair, 
Congressional Black Caucus (CBC)
Nydia M. Velazquez, Member of Congress and 
Chair, Congressional Hispanic Caucus (CHC)
Michael M. Honda, Member of Congress and 
Chair, Congressional Asian Pacific American 
Caucus (CAPAC)

Congressional Black Caucus
Sanford D. Bishop, Jr., Member of Congress 
Corrine Brown, Member of Congress 
G.K. Butterfield, Member of Congress 
Andre Carson, Member of Congress 
Donna Christensen, Delegate to Congress 
Yvette D. Clarke, Member of Congress 
William Lacy Clay, Jr., Member of Congress 
Emanuel Cleaver, II, Member of Congress 
James E. Clyburn, Member of Congress 
John Conyers, Jr., Member of Congress 
Elijah E. Cummings, Member of Congress 
Artur Davis, Member of Congress 
Danny K. Davis, Member of Congress



26

Donna F. Edwards, Member of Congress 
Keith Ellison, Member of Congress 
Chaka Fattah, Member of Congress 
Marcia L. Fudge, Member of Congress 
A1 Green, Member of Congress *
Alcee L. Hastings, Member of Congress 
Jesse L. Jackson, Jr., Member of Congress 
Sheila Jackson-Lee, Member of Congress 
Eddie Bernice Johnson, Member of Congress 
Henry C. Johnson, Member of Congress 
Carolyn Cheeks Kilpatrick, Member of Congress 
John Lewis, Member of Congress 
Kendrick B. Meek, Member of Congress 
Gregory W. Meeks, Member of Congress 
Gwen Moore, Member of Congress 
Eleanor Holmes Norton, Delegate to Congress 
Donald M. Payne, Member of Congress 
Charles B. Rangel, Member of Congress 
Laura Richardson, Member of Congress 
Bobby L. Rush, Member of Congress 
David Scott, Member of Congress 
Robert C. Scott, Member of Congress *
Bennie G. Thompson, Member of Congress 
Edolphus Towns, Member of Congress 
Maxine Waters, Member of Congress 
Diane E. Watson, Member of Congress 
Melvin L. Watt, Member of Congress



27

Congressional Hispanic Caucus
Joe Baca, Member of Congress 
Xavier Becerra, Member of Congress * 
Dennis A. Cardoza, Member of Congress 
Jim Costa, Member of Congress 
Henry Cuellar, Member of Congress 
Charles A. Gonzalez, Member of Congress 
Raul M. Grijalva, Member of Congress 
Luis V. Gutierrez, Member of Congress 
Ruben Hinojosa, Member of Congress 
Ben Ray Lujan, Member of Congress 
Grace F. Napolitano, Member of Congress 
Salomon P. Ortiz, Member of Congress 
Ed Pastor, Member of Congress 
Pedro R. Pierluisi, Member of Congress 
Silvestre Reyes, Member of Congress 
Ciro D. Rodriguez, Member of Congress 
Lucille Roybal-Allard, Member of Congress 
Gregorio Sablan, Member of Congress * 
John T. Salazar, Member of Congress 
Linda Sanchez, Member of Congress 
Jose E. Serrano, Member of Congress 
Albio Sires, Member of Congress



28

Congressional Asian Pacific American 
Caucus
Neil Abercombie, Member of Congress 
Xavier Beccerra, Member of Congress 
Madeleine Z. Bordallo, Delegate to Congress 
Eni F.H. Faleomavaega, Member of Congress 
A1 Green, Member of Congress 
Mazie K. Hirono, Member of Congress 
Doris O. Matsui, Member of Congress 
Gregorio C. Sablan, Member of Congress 
Robert C. Scott, Member of Congress 
David Wu, Member of Congress *

*Also a Member of the CAP AC



29

APPENDIX B*
Racial Gaps In Voter Registration & 

Turnout

’  Source: U.S. Census Bureau, Table A l. Located at
h ttp :. w w w .c e n s i i s .a o v / D Q P u l a t i o n / w w w / s o c o>. .

http://www.censiis.aov/DQPulation/www/so