Shelby County v. Holder Brief for Respondent Intervenors

    No. 12-96

IN THE

J^npmur Court of the Ibtttch States

Sh e lb y  Co u n ty , A l a b a m a ,
v Petitioner,

E r i c  H . H o l d e r , J r ., A t t o r n e y  G e n e r a l , e t  a l ..

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES 
COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR RESPONDENT-INTERVENORS 
BOBBY PIERSON, WILLIE GOLDSMITH, SR.,

MARY PAXTON-LEE, KENNETH DUKES, AND ALABAMA 
STATE CONFERENCE OF THE NATIONAL ASSOCIATION 

FOR THE ADVANCEMENT OF COLORED PEOPLE

Kirn Keenan 
Victor L. Goode 
NAACP
4805 Mt. Hope Drive 
Baltimore, MD 21215-3297 
(410) 580-5791
Arthur B. Spitzer 
American Civil Liberties Union 

of the Nation’s Capital 
4301 Connecticut Avenue, NW 

Suite 434
Washington, D.C. 20008 
(202) 457-0800
David I. Schoen 
ACLU of Alabama Foundation 
2800 Zelda Road, Suite 100-6 
Montgomery, AL 36106 
(334) 395-6611

M. Laughlin McDonald 
Counsel o f Record 

Nancy G. Abudu 
American Civil Liberties 

Union Foundation 
230 Peachtree Street, NW 

Suite 1440
Atlanta, GA 30303-1227 
(404) 523-2721 
lrncdonald@aclu.org
Steven R. Shapiro 
American Civil Liberties 

Union Foundation 
125 Broad Street 
New York, NY 10004 
(212) 549-2500

Cou nsel for Respondent-Intervenors

mailto:lrncdonald@aclu.org


RULE 29.6 STATEMENT
The Alabama State Conference of the National 
Association for the Advancement of Colored People is 
a § 501(c)(4) affiliate of the National Association for 
the Advancement of Colored People, Inc., which is a 
not-for-profit corporation organized under the laws of 
New York. Neither entity issues shares to the public.

1



TABLE OF CONTENTS

RULE 29.6 STATEMENT.............................................i
TABLE OF AUTHORITIES....................................... iv
STATEMENT.................................................................1
A. The Statutory Framework......................................1
B. The Proceedings Below...........................................7
SUMMARY OF ARGUMENT..................................... 9
ARGUMENT................................................................13
I. CONGRESS PROPERLY EXERCISED ITS 

CONSTITUTIONAL AUTHORITY TO 
ENFORCE THE FOURTEENTH AND 
FIFTEENTH AMENDMENTS WHEN IT 
REAUTHORIZED THE VOTING RIGHTS ACT
IN 2006...............................................................  13
A. The Standard Of Review........................... 14
B. The Legislative Record Convincingly

Establishes That Voting Discrimination 
Is An Ongoing Problem In The Covered 
Jurisdictions................................................16

C. The Constitutional Validity of the
Voting Rights Act Is Not Undermined 
By Advances In Voting Equality Since 
1965..............................................................33

D. The Bailout and Bail-In Provisions of 
the Voting Rights Act Reinforce
the Constitutionality of the Coverage 
Formula.......................................................40



E. An Unbroken Line of Cases From This 
Court And Lower Courts Have Upheld 
The Constitutionality Of Section 5 
Over Many Decades................................... 43

II. RECENT SECTION 5 OBJECTIONS 
FURTHER DEMONSTRATE THE 
CONTINUING NEED FOR SECTION 5......... 48

CONCLUSION............................................................54

iii



TABLE OF AUTHORITIES

CASES
Adarand Constructors, Inc. v. Slater,

228 F.3d 1147 (10th Cir. 2000)............................. 28
Allen v. State Board of Elections,

393 U.S. 544 (1969).................................................31
Bartnicki v. Vopper, 523 U.S. 514 (2001).................28
Beer v. United States, 425 U.S. 130 (1976)..... 5, 6. 51
Board of Trustees of University of Alabama v.

Garrett, 531 U.S. 356 (2011).................................. 46
Busbee v. Smith,

549 F.Supp. 494 (D.D.C. 1982).......................  19, 30
City of Boerne v. Flores, 521 U.S. 507 (1997)... passim
City of Pleasant Grove v. United States,

479 U.S. 462 (1987).................................................18
City of Port Arthur v. United States,

459 U.S. 159 (1982).................................................30
City of Rome v. United States,

446 U.S. 156 (1980)........................................ passim
Contractors Ass’n of Eastern Pennsylvania, Inc. v.

City of Philadelphia, 6 F.3d 990 (3d Cir. 1993)... 28
County Council of Sumter County, S.C. v. United 

States, 555 F. Supp. 694 (D.D.C. 1983)............... 47
Eldred v. Ashcroft, 537 U.S. 186 (2003)...................32
Engineering Contractors Ass’n v. Metro. Dade

County, 122 F.3d 895 (11th Cir. 1997).................28

IV



Florida Prepaid Postsecondary Education Expense
Board v. College Savings Bank,
527 U.S. 627 (1999)................................................ 46

Florida v. United States,
820 F.Supp.2d 85 (D.D.C. 2011)............................52

Florida v. United States,
2012 WL 3538298 (D.D.C. 2012)...........................52

Florida v. United States,
CA No. 11-01428 (D.D.C.)...................................... 53

Georgia v. Ashcroft, 539 U.S. 461 (2003).................. 5
Georgia v. United States,

411 U.S. 526 (1973)........................................ passim
Giles v. Ashcroft,

193 F.Supp.2d 258 (D.D.C. 2002)..........................47
Janis v. Nelson,

2009 WL 5216902 (D. S.D. 2009)..........................47
Jeffers v. Clinton,

740 F.Supp. 585 (E.D. Ark. 1990).........................25
Katzenbach v. Morgan, 384 U.S. 641 (1966)........... 13
Large v. Fremont County, Wyo.,

709 F.Supp.2d 1176 (D. Wyo. 2010).....................38
League of Women Voters v. Browning,

863 F.Supp.2d 1155 (N.D. Fla. 2012)............ 52, 53
Levy v. Lexington County, South Carolina,

589 F.3d 708 (4th Cir. 2009).................................38
Lopez v. Monterey County,

525 U.S. 266 (1999).................................3, 4, 43, 45
LULAC v. Perry, 548 U.S. 399 (2006)......................45
Miller v. Johnson, 515 U.S. 900 (1995)....................20

v



Nevada Dept, of Human Resources v. Hibbs,
538 U.S. 721 (2003)..........................................31, 46

Northwest Austin Municipal Utility District Number 
One v. Mukasey,
573 F.Supp.2d 221 (D.D.C. 2008).........................  19

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

Oregon v. Mitchell, 400 U.S. 112 (1970)...........  10, 13
Pruett v. Harris County Bail Bond Bd.,

499 F.3d 403 (5th Cir. 2007)................................. 28
Reno v. Bossier Parish Sch. Bd.,

528 U.S. 320 (2000)................................. 4, 5, 21, 22
Singleton v. Wulff, 428 U.S. 106 (1976).....................6
South Carolina v. Holder,

2012 WL 4814094 (D.D.C. Oct. 10, 2012)............ 50
South Carolina v. Katzenbach,

383 U.S. 301 (1966)........................................ passim
Tennessee v. Lane, 541 U.S. 509 (2004)......  13, 27, 39
Texas v. Holder,

2012 WL 3743676 (D.D.C. Aug. 30, 2012)........... 51
Texas v. United States,

2012 WL 3671924 (D.D.C. Aug. 28, 2012)........... 48
The State of New Hampshire v. Holder,

Case No. l:12-cv-01854
(D.D.C. filed Dec. 5, 2012)...................................... 41

Thornburg v. Gingles, 478 U.S. 30 (1986)............... 30
Turner Broadcasting System, Inc. v. F.C.C.,

520 U.S. 180 (1997).................................................32

vi



United States Dept, of Labor v. Triplett,
494 U.S. 715 (1990).................................................32

United States v. Jones, 132 S.Ct. 945 (2012)............ 6
Yick Wo v. Hopkins, 118 U.S. 356 (1886)................ 54
Youakim u. Miller, 425 U.S. 231 (1976).................... 6

STATUTES
Fannie Lou Hamer, Rosa Parks, and Coretta Scott 
King Voting Rights Act Reauthorization and 
Amendments Act of 2006, Pub. L. 109-246,
120 Stat. 577 (2006) et seq................................ passim

120 Stat. 577, Sec. 2(a)............................................ 54
120 Stat. 577, Sec. 2(b)....................................... 8, 16
120 Stat. 577, Sec. 2(b)(3)...................................... 29
120 Stat. 577, Sec. 2(b)(4).......................... 23, 26, 28
120 Stat. 577, Sec. 2(b)(4)(A).....................16, 22, 23
120 Stat. 577, Sec. 2(b)(5)................................26, 28
120 Stat. 577, Sec 2(b)(6)........................................ 22
120 Stat. 577, Sec. 2(b)(9)....................................... 36
120 Stat. 578, Sec. 2(b)(9)....................................... 12
120 Stat. 580, Sec. 2(b)(4)(B).................................. 24

Voting Rights Act of 1965, Pub. L. No. 89-110,
79 Stat. 437 (1965) et seq.................................. passim

42 U.S.C. § 1973 (Section 2)...........................passim
42 U.S.C. § 1973a(c)................................................ 42
42 U.S.C. § 1973b(a)................................................ 41
42 U.S.C. § 1973b(b) (Section 4(b))................ passim

vii



42 U.S.C. § 1973c (Section 5).........................passim
42 U.S.C. §§ 1973c(b)................................................. 6
42 U.S.C. §§ 1973c(d)................................................. 6

Voting Rights Act Amendments of 1970,
Pub. L. No. 91-285, 84 Stat. 314 (1970)..................3

Voting Rights Act Amendments of 1975,
Pub. L. No. 94-73, 89 Stat. 400 (1975)....................3

Voting Rights Act Amendments of 1982,
Pub. L. No. 97-205, 96 Stat.131 (1982)...................3

LEGISLATIVE HISTORY
152 Cong. Rec. H5143-5207 

(daily ed. July 13, 2006)............................................4
152 Cong. Rec. S8012

(daily ed. July 20, 2006)...........................................4
H.R. Rep. No. 109-478 (2006)...........................passim
S. Rep. No. 97-417 (1982)................................... 30, 41
S. Rep. No. 109-295 (2006)................................ passim
Renewing the Temporary Provisions of the Voting 

Rights Act: Legislative Options after LULAC v. 
Perry, Senate, 109th Cong., 2d Sess.
(July 13, 2006)..................................................  18, 26

Voting Rights Act: Evidence of Continued Need: 
Hearing Before the Subcommittee on the 
Constitution of the Committee on the Judiciary, 
House of Representatives, 109th Cong., 2d Sess. 
(March 8, 2006)...............................................passim

Voting Rights Act: Section 5 - Preclearance
Standards, Hearing Before the Subcommittee on

viii



the Constitution of the House Committee on the 
Judiciary, House of Representatives, 109th Cong., 
1st Sess. (November 1, 2005)...................  18, 19, 22

Voting Rights Act: Section 5 of the Act-History,
Scope, and Purpose, Hearing before the 
Subcommittee on the Judiciary, House of 
Representatives, 109th Cong., 1st Sess.
(October 25, 2005)...............................  17, 18, 36, 38

To Examine the Impact and Effectiveness of the 
Voting Rights Act, Hearing before the 
Subcommittee on the Judiciary,
House of Representatives, 109th Cong., 1st Sess. 
(October 18, 2005)........................................... 24, 25

OTHER AUTHORITIES
Chandler Davidson & Bernard Grofman, The Voting 

Rights Act and the Second Reconstruction in QUIET 
R e v o l u t io n  in  t h e  S o u t h : T he Im p a c t  o f  th e  
V o tin g  R ig h t s  A ct  1965-1990 (C. Davidson et al.
eds., Princeton Univ. Press 1994)..........................39

Daniel McCool, Susan M. Olson, & Jennifer L. 
Robinson, NATIVE VOTE: AMERICAN INDIANS, THE
V o tin g  R ig h t s  A c t , a n d  t h e  R ig h t  to  V ote  
(Cambridge Univ. Press 2007)...............................40

James U. Blacksher, et al., Voting Rights in 
Alabama: 1982-2006, 17 So. Cal. Rev. Law & Soc. 
Just. 249 (2008).......................................................36

Nathaniel Persily, The Promise and Pitfalls of 
the New Voting Rights Act, 117 Yale L.J. 174 
(2007)....................................................................... 34

Voting Law’s Sunday Punch,
Sarasota Herald-Tribune, June 15, 2011............. 52

IX



STATEMENT
This case presents a facial challenge to Section 

5 of the Voting Rights Act, a critical provision of one 
of this Nation's landmark civil rights laws.
A. The Statutory Framework

After “enduring nearly a century of systematic 
resistance to the Fifteenth Amendment,” Congress 
enacted the Voting Rights Act of 1965, Pub. L. No. 
89-110, 79 Stat. 437 (1965), “to banish the blight of 
racial discrimination in voting, which has infected 
the electoral process in parts of our country.” South 
Carolina v. Katzenbach, 383 U.S. 301, 308 (1966). 
For nearly fifty years, the Voting Rights Act has 
played a pivotal role in helping to preserve the right 
to vote for all Americans

Opponents of the Voting Rights Act have 
challenged its constitutionality since the beginning. 
In response to those challenges, this Court has 
upheld the constitutionality of the Voting Rights Act 
on four occasions spanning more than three decades 
and involving three separate extensions enacted by 
Congress for periods ranging from five to twenty-five 
years.

Katzenbach was the first in that unbroken line 
of decisions holding that the Voting Rights Act is a 
constitutionally appropriate exercise of congressional 
power to remedy past voting discrimination and 
ensure future voting equality. Both Section 2 and 
Section 5 of the Voting Rights Act are critical 
elements of the congressional scheme. Section 2 
prohibits discrimination in voting and can be 
enforced through federal enforcement actions or 
private suits. 42 U.S.C. § 1973. Section 5 requires

1



“covered jurisdictions” to “preclear” proposed changes 
in their voting practices or procedures before they 
are implemented with either the Department of 
Justice or the federal district court in Washington, 
D.C. 42 U.S.C. § 1973c. Under Section 5, it is the 
State’s burden to show that the proposed change has 
neither a retrogressive effect or a discriminatory 
purpose.

The preclearance requirement of Section 5 was 
adopted because Congress recognized that Section 2 
alone was inadequate to address the ongoing pattern 
of voting discrimination in jurisdictions with a long 
history of denying racial minorities the right to vote. 
To carefully target the problem it meant to address, 
Congress created a coverage formula in Section 4(b), 
42 U.S.C. § 1973b(b), to define those jurisdictions 
that were subject to Section 5’s preclearance 
requirement. As originally enacted in 1965, Section 
5 only applied to those jurisdictions than used a “test 
or device” for voting and where less that 50% of 
voting age residents were registered or voted in the 
1964 presidential election. Congress also agreed that 
Section 5 would expire in five years unless renewed, 
assuring legislative re-examination of the ongoing 
need for a preclearance requirement.

In Katzenbach, this Court ruled that the 
Section 4(b) coverage formula was constitutional 
because it was designed “to describe these areas . . . 
relevant to the problem of voting discrimination.” 
383 U.S. at 329. The Court further observed that 
Congress was “entitled to infer a significant danger 
of the evil [of voting discrimination] in the few 
remaining States and political subdivisions covered 
by § 4(b) of the Act. No more was required to justify

2



the application to these areas of Congress’ express 
powers under the Fifteenth Amendment.” Id.

Section 5 was extended for an additional five 
years in 1970, and the Section 4(b) coverage formula 
was expanded to include the 1968 presidential 
election. Pub. L. No. 91-285, 84 Stat. 314, 315 
(1970). The 1970 extension was upheld in Georgia v. 
United States, 411 U.S. 526 (1973). “[F]or the 
reasons stated at length in South Carolina v. 
Katzenbach,” the Court wrote, “we reaffirm that the 
Act is a permissible exercise of congressional power 
under § 2 of the Fifteenth Amendment.” Id. at 535.

Congress again extended Section 5 in 1975 for 
seven years, and expanded the Section 4(b) coverage 
formula to include the 1972 presidential election. 
Pub. L. No. 94-73, 89 Stat. 400, 401 (1975). City of 
Rome v. United States, 446 U.S. 156, 182 (1980), held 
that the extension was “plainly a constitutional 
method of enforcing the Fifteenth Amendment.” In 
doing so, it relied upon Congress’ conclusions that 
Section 5 “has become widely recognized as a means 
of promoting and preserving minority political gains 
in covered jurisdictions,” that “recent objections 
entered by the Attorney General . . .  to Section 5 
submissions clearly bespeak the continuing need for 
this preclearance mechanism,” and that Section 5 
“serves to insure that progress not be destroyed 
through new procedures and techniques.” Id. at 181.

Section 5 was extended once more in 1982, 
this time for 25 years and without altering the 
coverage formula. Pub. L. No. 97-205, 96 Stat. 131 
(1982). Congress, did, however, relax the standards 
for bailout. See p. 41, infra. The constitutionality of 
the 1982 extension was affirmed in Lopez v.

3



Monterey County, 525 U.S. 266, 282 (1999), where 
the Court noted that “we have specifically upheld the 
constitutionality of § 5 of the Act against a challenge 
that this provision usurps powers reserved to the 
States.”

Most recently, in 2005 and 2006, Congress 
considered the need for the continuation of Section 5 
and the appropriateness of the Section 4(b) coverage 
formula. It held 21 hearings, heard from more than 
90 witnesses, and compiled a massive record of more 
than 15,000 pages of evidence. H.R. Rep. No. 109- 
478, 109th Cong., 2d Sess., at 5 (May 22, 2006); 
S. Rep. No. 109-295, 109th Cong., 2d Sess., at 2 (July 
26, 2006). The House Committee on the Judiciary 
described the record it compiled as “one of the most 
extensive legislative records in the Committee on the 
Judiciary’s history.” H.R. Rep. No. 109-478, at 5 
(2006). At the conclusion of its deliberations 
Congress, by a vote of 390 to 33 in the House and by 
a unanimous vote in the Senate, extended Section 5 
and the Section 4(b) coverage formula for an 
additional 25 years. 152 Cong. Rec. S8012 (daily ed. 
July 20, 2006); 152 Cong. Rec. H5143-5207 (daily ed. 
July 13, 2006); Fannie Lou Hamer, Rosa Parks, and 
Coretta Scott King Voting Rights Act 
Reauthorization and Amendments Act of 2006, Pub. 
L. 109-246, 120 Stat. 577 (2006). In doing so, 
Congress invoked its enforcement authority under 
both the Fourteenth and Fifteenth Amendments. 
H.R. Rep. No. 109-478, at 90 (2006).

Congress also amended Section 5 to restore 
the longstanding interpretation and application of 
Section 5 which had been abrogated by Reno v. 
Bossier Parish Sch. Bd., 528 U.S. 320 (2000)

4



CBossier IF), and Georgia v. Ashcroft, 539 U.S. 461 
(2003). In Bossier II, the Court held for the first time 
that the “purpose” prong of Section 5 prohibited only 
voting changes that were enacted with a 
discriminatory and retrogressive purpose. 528 U.S. 
at 328. In 2006, Congress explained that Bossier II’s 
limitation of the purpose prong was inconsistent with 
Congress’s intent that Section 5 prevents “[vjoting 
changes that ‘purposefully’ keep minority groups ‘in 
their place,”’ as well as purposefully retrogressive 
voting changes. H.R. Rep. No. 109-478, at 68 (2006). 
See S. Rep. No. 109-295, at 16 (2006) (Bossier II gives 
“approval to practices that violate the Constitution”). 
Congress thus restored the pre-Bossier II definition 
of the purpose standard to include “any 
discriminatory purpose.” 42 U.S.C. § 1973c(c).

In Georgia v. Ashcroft, the Court changed the 
preexisting standard for determining whether a 
voting change had a prohibited retrogressive effect 
under Section 5. Prior to Ashcroft, the effect standard 
was “‘whether the ability of minority groups to 
participate in the political process and to elect their 
candidates to office is . . . diminished . . .  by the 
change affecting voting.’” Beer u. United States, 425 
U.S. 130, 141 (1976) (quoting H.R. Rep. No. 94-196, 
at 60). In Ashcroft, the Court approved a “totality of 
circumstances” analysis that included whether a 
minority group could “influence the election of 
candidates of its choice.” 539 U.S. at 479. Congress 
concluded that the new standard introduced 
“substantial uncertainty” into the operation of 
Section 5, which was designed to protect “the 
effectiveness of minority political participation.” 
H.R. Rep. No. 109-478, at 70 (2006). See also id., at 
68 & 70 (Ashcroft not only made Section 5

5



“unadministerable” but “would encourage States . . . 
to turn black and other minority voters into second 
class voters”); S. Rep. No. 109-295, at 18 (2006) (“the 
Georgia standard is unworkable. The concept of 
‘influence’ is vague”). In order to restore the “ability 
to elect” standard articulated in Beer, Congress 
added the language that a voting change was 
objectionable under Section 5 if it diminished the 
ability of minorities “to elect their preferred 
candidates of choice.” 42 U.S.C. §§ 1973c(b) & (d). 
See H.R. Rep. No. 109-478, at 70-1 (2006).1

1 The constitutionality of the 2006 Amendments is not before 
the Court. In the court of appeals, “Shelby County neither 
challenge[d] the constitutionality of the 2006 amendments or 
even argue [d] that they increase section 5's burdens.” Pet. App. 
66a. See also Pet. App. 76a (“Shelby did not argue that either of 
these amendments is unconstitutional”) (Williams, Judge, 
dissenting). Thus, as the court of appeals explained, “[tjhese 
issues . . . are entirely unbriefed, and as we have repeatedly 
made clear, ‘appellate courts do not sit as self-directed boards of 
legal inquiry and research, but essentially as arbiters of legal 
questions presented and argued by the parties before them.’” 
Pet. App. 66a-67a (quoting Carducci v. Regan, 714 F.2d 171, 
177 (D.C. Cir. 1983)). Since Shelby County did not challenge 
the constitutionality of the 2006 amendments in the lower 
courts nor argue that they increased Section 5's burdens, they 
have waived any such arguments before this Court. See 
Youakim v. Miller, 425 U.S. 231, 234 (1976) (“Ordinarily, this 
Court does not decide questions not raised or resolved in the 
lower court.”); Singleton v. Wulff, 428 U.S. 106, 120 (1976) (“It 
is the general rule, of course, that a federal appellate court does 
not consider an issue not pressed upon below.”); United States 
v. Jones, 132 S.Ct. 945, 954 (2012) (“We have no occasion to 
consider this argument. The Government did not raise it below, 
and the D.C. Circuit therefore did not address it. . .We consider 
the argument forfeited.”).

6



B. The Proceedings Below

In April 2010, Shelby County sought a 
declaration that Sections 5 and 4(b) are facially 
unconstitutional and a permanent injunction against 
their enforcement. The district court granted 
summary judgment to the defendants, Pet. App. 
llla-291a, and Shelby County appealed.

The court of appeals affirmed in a 2-1 opinion 
framed by this Court’s observation in Nw. Austin 
Mun. Util. Dist No. One u. Holder, 557 U.S. 193, 203 
(2009) that the constitutionality of the 2006 
extension “must be justified by current needs,” and 
that “a statute’s disparate geographic coverage” 
requires a showing that it “is sufficiently related to 
the problem that it targets.” Pet. App. 14a-15a. 
Applying the “congruence and proportionality 
standard” of City of Boerne v. Flores 521 U.S. 507 
(1997), the court of appeals upheld the 
constitutionality of Sections 5 and 4(b).

Writing for the majority, Judge Tatel stressed 
that “the record contains numerous ‘examples of 
modern’ instances of racial discrimination in voting” 
in the covered jurisdictions relied upon by Congress 
in amending and extending the Act in 2006. Pet. 
App. 29a. That evidence included: (1) 626 DOJ 
objections from 1982 to 2004 to voting changes that 
had the purpose or effect of discriminating against 
minorities; (2) “more information requests” from DOJ 
regarding Section 5 submissions that resulted in the 
withdrawal or modification of over 800 potentially 
discriminatory voting changes; (3) 105 successful 
Section 5 enforcement actions brought against 
covered jurisdictions between 1982 and 2004; (4) 25 
preclearance denials by the District Court for the

7



District of Columbia between 1982 and 2004; (5) 653 
successful lawsuits under Section 2 of the Voting 
Rights Act between 1982 and 2005 providing relief 
from discriminatory practices in at least 825 covered 
counties; (6) tens of thousands of federal observers 
dispatched to monitor elections in covered 
jurisdictions; (7) examples of “overt hostility to black 
voting power by those who control the electoral 
process;” (8) racially polarized voting; (9) evidence 
that Section 5 has a strong deterrent effect; (10) 
litigation by DOJ to enforce the minority language 
provision of the Act; and (11) evidence that Section 2 
was an inadequate remedy for racial discrimination 
in voting in the covered jurisdictions. Pet. App. 24a, 
29a-46a; 120 Stat. 577, Sec. 2(b).

The court of appeals then concluded: “After 
thoroughly scrutinizing the record and given that 
overt racial discrimination persists in covered 
jurisdictions notwithstanding decades of section 5 
preclearance, we, like the district court, are satisfied 
that Congress’s judgment deserves judicial 
deference.” Pet. App. 48a. See 120 Stat. 577, Sec. 
2(b) (summarizing the findings and evidence upon 
which Congress relied in amending and extending 
the Voting Rights Act).

In his dissenting opinion, Judge Williams did 
“not reach the constitutionality of § 5 itself.” Pet. 
App. 104a. He also acknowledged that “[i]t goes 
without question that racism persists, as evidenced 
by the odious examples offered by the majority.” Id. 
Instead, he believed the coverage formula was 
“obsolete in practice.” Id.

8



SUMMARY OF ARGUMENT

The decision by Congress in 2006 to 
reauthorize Section 5 and the corresponding 
coverage provisions of the Voting Rights Act was 
nearly unanimous, amply supported by an extensive 
legislative record, and just as clearly within the 
constitutional power of Congress as previous 
extensions of the Voting Rights Act that this Court 
has repeatedly upheld.

The legislative record that Congress compiled 
before voting to reauthorize Section 5 in 2006 focused 
on two principal questions. First, does voting 
discrimination remain a significant problem in the 
United States, despite the undeniable progress that 
has been made in the years since the Voting Rights 
Act was initially adopted? Second, does the coverage 
formula that Congress has devised for Section 5, 
including the bail-in and bailout provisions of the 
Act, still effectively identify those jurisdictions where 
voting discrimination remains an ongoing issue? 
Congress concluded that the answer to both 
questions was yes. That factual determination, 
endorsed by overwhelming majorities in both the 
House and Senate, is plainly reasonable in light of 
the legislative record and entitled to deference under 
this Court’s decisions. It is Petitioner’s burden to 
show that the time has come to overturn one of the 
landmark civil rights laws of the last half-century. 
Congress clearly felt otherwise and Shelby County 
has failed to provide this Court with a basis for 
reversing that considered judgment.

By their express terms, the Fourteenth and 
Fifteenth Amendments give Congress the power to 
enforce their provisions “by appropriate legislation.”

9



U.S. Const. Amend. XIV, Sec. 5; U.S. Const. Amend. 
XV, Sec. 2. Interpreting those provisions, this Court 
has emphasized that the Constitution “empowers 
‘Congress,’ not the Court, to determine in the first 
instance what legislation is needed to enforce it.” 
Nw. Austin, 557 U.S. at 205. And, where “Congress 
attempts to remedy racial discrimination under its 
enforcement powers, its authority is enhanced by the 
avowed intention of the framers of the Thirteenth, 
Fourteenth, and Fifteenth Amendments.” Oregon v. 
Mitchell, 400 U.S. 112, 129 (1970).

Nw. Austin stated the question that is now 
before the Court but it did not answer it. On the one 
hand, the Court explained that the extension of 
Section 5 “must be justified by current needs,” and 
that “a statute’s disparate geographic coverage” 
requires a showing that it “is sufficiently related to 
the problem that it targets.” 557 U.S. at 203-04. On 
the other hand, the Court carefully noted that while 
there had been improvements in voting rights since 
passage of the Voting Rights Act in 1965, “ [i]t may be 
that these improvements are insufficient and that 
conditions continue to warrant preclearance under 
the Act.” Id.

That is precisely what the legislative record in 
this case demonstrates and the courts below found. 
Specifically, the record contains numerous examples 
of modern instances of racial discrimination in voting 
in the covered jurisdictions. Pet. App. 29a. Those 
examples are summarized above, see p. 7-8, supra, 
and more fully explained below, see pp. Point IB, 
infra. While there has been an increase in black 
elected officials in the covered jurisdictions over the 
last half-century, the overwhelming majority of black

10



elected officials have been elected from majority 
black districts, most of which were created as a 
result of Section 5 objections and Section 2 litigation. 
Moreover, Congress found that “gains by minority 
candidates remain uneven, both geographically and 
by level of office.” H.R. Rep. No. 109-478, at 33 
(2006).

In City of Rome, 446 U.S. at 177, the Court 
held “the Act’s ban on electoral changes that are 
discriminatory in effect is an appropriate method of 
promoting the purposes of the Fifteenth Amendment, 
even if it is assumed that § 1 of the Amendment 
prohibits only intentional discrimination in voting.” 
Here, the persistence of intentional discrimination in 
the covered jurisdictions does not have to be 
assumed; it is established by the legislative record. 
As the House Committee Report concluded regarding 
the 1982-2006 period, “voting changes devised by 
covered jurisdictions resemble those techniques and 
methods used in 1965, 1970, 1975, and 1982 
including: enacting discriminatory redistricting
plans; switching offices from elected to appointed 
positions; relocating polling places; enacting 
discriminatory annexations and deannexations; 
setting numbered posts; and changing elections from 
single member districts to at large voting and 
implementing majority vote requirements.” H.R. 
Rep. No. 109-478, at 36 (2006).

The 1960s-style discrimination is less common 
today, but that is because Section 5 has been 
effective in deterring overt discrimination in voting. 
See H.R. Rep. No. 109-478, at 57 (2006)
(“[djiscrimination today is more subtle than the 
visible methods used in 1965”). It would be ironic in

11



the extreme if the effectiveness of Section 5 is now 
utilized as a rationale to overturn it. A fair reading 
of the legislative record fully supports the conclusion 
of Congress that without the continuation of Section 
5 "racial and language minority citizens will be 
deprived of the opportunity to exercise their right to 
vote, or will have their votes diluted," 120 Stat. 578, 
Sec. 2(b)(9), is amply supported by the legislative 
record. It is also reinforced by evidence of intentional 
racial discrimination in recent objections involving 
Texas, South Carolina, and Florida.

Finally, the bailout provision of Section 5 
reduces the possibilities of over-inclusiveness and 
helps ensure that Congress’ means are proportionate 
to its ends. As of May 9, 2012, 136 jurisdictions had 
bailed out under a liberalized bailout system by 
demonstrating that they no longer discriminated in 
voting. Pet. App. 62a. The bailed-out jurisdictions 
included 30 counties, 79 towns and cities, 21 school 
boards, and six utility or sanitary districts. In 
addition, the Attorney General is actively 
considering more than 100 additional jurisdictions 
for bailout. Pet. App. 63a.

Conversely, the availability of bail-in 
addresses the potential under-inclusiveness of the 
coverage formula and the possibility that 
jurisdictions that are in fact engaging in systemic 
voting discrimination may not be covered by the 
Section 4(b) formula. Two non-covered states, 
Arkansas and New Mexico, were subjected to partial 
preclearance under the bail-in provision, as well as 
jurisdictions in California, Colorado, Florida, Illinois, 
Nebraska, New Mexico, New York, South Dakota, 
and the city of Chattanooga. Pet. App. 61a-62a; J.A.

12



141a-143a. The legislative record shows that the 
Section 4(b) formula, together with the statute’s 
provisions for bail-in and bailout, continues to single 
out the jurisdictions in which discrimination is 
concentrated. Pet. App. 65a.

ARGUMENT

I. CONGRESS PROPERLY EXERCISED ITS 
CONSTITUTIONAL AUTHORITY TO 
ENFORCE THE FOURTEENTH AND 
FIFTEENTH AMENDMENTS WHEN IT 
REAUTHORIZED THE VOTING RIGHTS 
ACT IN 2006.

The Fourteenth and Fifteenth Amendments 
expressly grant Congress the power to enforce their 
provisions “by appropriate legislation.” U.S. Const. 
Amend. XIV, Sec. 5; U.S. Const. Amend. XV, Sec. 2. 
As this Court has emphasized, the Constitution 
“empowers ‘Congress,’ not the Court, to determine in 
the first instance what legislation is needed to 
enforce it.” Nw. Austin, 557 U.S. at 205. See also 
Katzenbach v. Morgan, 384 U.S. 641, 651 (1966) (the 
“appropriate legislation” clause “is a positive grant of 
legislative power authorizing Congress to exercise its 
discretion in determining whether and what 
legislation is needed to secure the guarantees of the 
Fourteenth Amendment”); Tennessee v. Lane, 541 
U.S. 509, 519 n.4 (2004) (“measures protecting
voting rights are within Congress’ power to enforce 
the Fourteenth and Fifteenth Amendments, despite 
the burdens those measures placed on the States”); 
Oregon v. Mitchell, 400 U.S. 112, 129 (1970) (where 
“Congress attempts to remedy racial discrimination 
under its enforcement powers, its authority is

13



enhanced by the avowed intention of the framers of 
the Thirteenth, Fourteenth, and Fifteenth 
Amendments”); City of Boerne, 521 U.S. at 535 (when 
Congress exercises its enforcement authority under 
the Reconstruction Amendments its judgments about 
“what legislation is needed . . . are entitled to much 
deference”).

“[J]udging the constitutionality of an Act of 
Congress is ‘the gravest and most delicate duty that 
this Court is called on to perform.’” Nw. Austin, 557 
U.S. at 205 (quoting Blodgett v. Holden, 275 U.S. 
142, 147-48 (1927) (Holmes, J., concurring)). In this 
instance, Congress acted well within its powers to 
enforce the Fourteenth and Fifteenth Amendments 
by reauthorizing Section 5 and the coverage formula 
in 2006 as a remedy for discrimination against racial 
and language minorities in voting. Its nearly 
unanimous decision to maintain the preclearance 
requirement for covered jurisdictions and those that 
might be bailed-in is fully supported by the extensive 
legislative record it compiled.

A. The Standard Of Review
In Nw. Austin, 557 U.S. at 204, this Court 

considered whether a challenge to the 
constitutionality of Section 5 should be resolved 
using: (1) the “rational means” standard applied in 
South Carolina u. Katzenbach, 383 U.S. at 324 
(“Congress may use any rational means to effectuate 
the constitutional prohibition of racial discrimination 
in voting”); or (2) the “congruence and proportionality 
standard” applied in City of Boerne, 521 U.S. at 520, 
530. The Court's holding that the municipal utility 
district was entitled to a statutory bailout from 
Section 5 coverage made it unnecessary to resolve

14



which constitutional standard applied. The Court 
nonetheless observed that the constitutionality of 
Section 5 “must be justified by current needs” in any 
future inquiry, and that the Act’s “disparate 
geographic coverage” requires a showing that it “is 
sufficiently related to the problem that it targets.” 
Nw. Austin, 557 U.S. at 203.

At the same time, the Court was careful not to 
prejudge the outcome of that inquiry. While noting 
the progress that has been made since 1965 in voting 
rights, the Court carefully cautioned: “It may be that 
these improvements are insufficient and that 
conditions continue to warrant preclearance under 
the Act.” Id.

Indeed, that was the finding of the district 
court in Nw. Austin, which concluded that the 
legislative record before Congress in 2006 
“document[ed] contemporary racial discrimination in 
covered states” and that section 5 prevents 
discriminatory voting changes by “quietly but 
effectively deterring discriminatory changes.” Id. at 
205. The lower courts in this case reached the same 
conclusion.

Section 5 is therefore constitutional under any 
of the standards of review that this Court has 
articulated for statutes enacted pursuant to the 
enforcement provisions of the Fourteenth and 
Fifteenth Amendment. Applying the standard 
announced by this Court in Nw. Austin, the 
extension of Section 5 in 2006 was plainly justified 
by current needs as set forth in the legislative record, 
and the statute’s coverage formula targets those 
jurisdictions where minority voting strength remains 
most vulnerable in the present day.

15



B. The Legislative Record
Convincingly Establishes That 
Voting Discrimination Is An 
Ongoing Problem In The Covered 
Jurisdictions

The legislative record that Congress compiled 
before voting to reauthorize Section 5 in 2006 was 
voluminous, to say the least. See p. 4, supra. As the 
court of appeals found, it is a record replete with 
“examples of modern” voting discrimination in the 
covered jurisdictions. Pet. App. 29a. It is also a 
record that documents the persistence of voting 
discrimination in multiple and reinforcing ways. 120 
Stat. 577, Sec. 2(b).

i. Section 5 Objections
In considering whether to reauthorize the 

preclearance provisions of Section 5, Congress 
understandably looked to the number of Section 5 
objections by the Department of Justice in covered 
jurisdictions. 120 Stat. 577, Sec. 2(b)(4)(A). The 
sheer number of Section 5 objections documented in 
the legislative record offers powerful evidence of the 
continued need for Section 5, whether measured 
absolutely or comparatively. Since 1982, the 
Department of Justice has objected to more than 700 
voting changes that were determined to be 
discriminatory, thus preventing them from being 
enforced by the covered jurisdictions. H.R. Rep. 109- 
478, at 21 (2006). To place that number in historical 
perspective, there were more DOJ Section 5 
objections between August 1982 and 2004 (626) than 
between 1965 and the 1982 reauthorization (490), 
and nine of the covered states received more 
objections after 1982 than before. Pet. App. 32a;

16



Voting Rights Act: Evidence of Continued Need: 
Hearing Before the Subcommittee on the 
Constitution of the Committee on the Judiciary, 
House of Representatives, 109th Cong., 2d Sess., Vol. 
1, at 172, 259 (March 8, 2006) (“House Hearing, 
Evidence of Continued Need”) (report of National 
Commission on the Voting Rights Act). The average 
number of objections per year has remained fairly 
constant. Pet. App. 34a. H.R. Rep. No. 109-478, at 
22 (2006).

The basis for those objections also helps to 
illuminate the ongoing problem of voting 
discrimination revealed by the legislative fact­
finding. Among the recent voting changes blocked by 
the statute that Congress reviewed were: 
state restrictions on registration and voting; 
discriminatory annexations and deannexations; 
discriminatory redistricting; voter purges; adoption 
of at-large elections; high school diploma 
requirements for holding office; consolidations; 
anti-single shot provisions; majority vote 
requirements; re-registration procedures; numbered 
post requirements; abolition of elected offices; 
residency requirements; staggered terms; the 
elimination or relocation of polling places; changing 
elections from single member districts to at-large 
voting; and dual registration requirements. 
H.R. Rep. 109-478, at 36 (2006); Voting Rights Act: 
Section 5 of the Act-History, Scope, and Purpose, 
Hearing before the Subcommittee on the Judiciary, 
House of Representatives, 109th Cong., 1st Sess., 
Vol. I, at 10104-224 (October 25, 2005) (“House 
Hearing, History, Scope, and Purpose”) (complete list

17



of Section 5 objections through October 17, 2005).2
Many of these objections were based on 

substantial evidence of purposeful discrimination. 
From 1980 to 2004, the Attorney General issued 
objection letters blocking 423 voting changes that 
appeared to be intentionally discriminatory. Voting 
Rights Act: Section 5 - Preclearance Standards, 
Hearing Before the Subcommittee on the 
Constitution of the House Committee on the 
Judiciary, House of Representatives, 109th Cong.,

2 Since the extension of Section 5 in 1982, DOJ has objected to 
46 Section 5 submissions from Alabama, seven from the state 
and 39 from local jurisdictions. Many of the objections were 
based upon evidence of purposeful discrimination. House 
Hearing, History, Scope, and Purpose, Vol. I, at 264, 267, 275, 
333, 321, 350, 415, 435 (2005); Senate Hearing, Legislative 
Options, 109th Cong., 2d Sess., at 383-84 (2006) (Voting Rights 
in Alabama 1982-2006, report of RenewtheVRA.org). On March 
27, 1992, for example, DOJ objected to the congressional 
redistricting plan enacted by the Alabama legislature on the 
grounds that the fragmentation of black population 
concentrations in the state was evidence of “a predisposition on 
the part of the state political leadership to limit black voting 
potential to a single district.” Senate Hearing, Legislative 
Options, 109th Cong. 2d Sess., at 384 (2006); House Hearing, 
History, Scope, and Purpose, Vol. I, at 385 (2005). DOJ further 
found that: “In light of the prevailing pattern of racially 
polarized voting throughout the state, it does not appear that 
black voters are likely to have a realistic opportunity to elect a 
candidate of their choice in any of the [remaining] districts.” Id. 
In City of Pleasant Grove v. United States, 479 U.S. 462 (1987), 
to cite another example, the Court affirmed the district court’s 
denial of Section 5 preclearance to two annexations by the City 
of Pleasant Grove, Alabama, on the grounds that the city had 
engaged in a racially selective annexation policy. The Court 
found it “quite plausible to see appellant’s annexation^] . . .  as 
motivated, in part, by the impermissible purpose of minimizing 
future black voting strength.” Id. at 471-72.

18



1st Sess., at 180 tbl. 2 (November 1, 2005) (“House 
Hearing, Preclearance Standards'1) (Peyton McCrary, 
et al.); Pet. App. 33a. As recently as the 1990s, 43% 
of all objections were based on intent alone, while 
another 31% were based on a combination of intent 
and effect. House Hearing, Preclearance Standards, 
at 136 (2005). See also Northwest Austin Municipal 
Utility District Number One v. Mukasey, 573 
F.Supp.2d 221, 252 (D.D.C. 2008), reu’d and 
remanded on other grounds sub nom. Nw. Austin, 
557 U.S. at 211. Congress found that “such 
objections did not encompass minor inadvertent 
changes. The changes sought by covered 
jurisdictions were calculated decisions to keep 
minority voters from fully participating in the 
political process.” H.R. Rep. No. 109-478, at 21 
(2006).

These Section 5 objections, coupled with 
findings in Section 2 litigation, document the 
existence of continued intentional discrimination 
in the covered jurisdictions. See House Hearing, 
Evidence of Continued Need, Vol. I, at 31-3 (2006) 
(statement of Nadine Strossen, President, American 
Civil Liberties Union). And, as the House Committee 
Report concluded regarding the 1982-2006 period, 
“voting changes devised by covered jurisdictions 
resemble those techniques and methods used in 
1965, 1970, 1975, and 1982 including: enacting 
discriminatory redistricting plans;3 switching offices

3 In Georgia, for example, the Chairman of the House 
Reapportionment Committee told his colleagues on numerous 
occasions that “I don’t want to draw nigger districts.” H.R. Rep. 
No. 109-478, at 67 (2006) (quoting Busbee v. Smith, 549 F.Supp. 
494, 501 (D.D.C. 1982)). The court in Busbee made a specific 
finding that the Chairman “is a racist.” Id. at 500. In

19



from elected to appointed positions; relocating 
polling places; enacting discriminatory annexations 
and de-annexations; setting numbered posts; and 
changing elections from single member districts to at 
large voting and implementing majority vote 
requirements.” H.R. Rep. No. 109-478, at 36 (2006).

Such 1960s-style discrimination may be less 
common today than it was in the past, but that is 
because Section 5 has been effective in deterring 
overt discrimination in voting. See H.R. Rep. No. 
109-478, at 57 (2006) (“[discrimination today is more 
subtle than the visible methods used in 1965”). 
Given Shelby County’s logic, Congress could only 
reauthorize Sections 5 and 4(b) based upon findings 
that they had been ineffective. But the fact that 
Sections 5 and 4(b) have been effective supports, 
rather than undermines, their appropriateness as a 
remedy.

Citing Miller v. Johnson, 515 U.S. 900, 917 
(1995), Shelby County attempts to undermine the 
relevance of Section 5 objections based upon 
discriminatory intent by claiming they could have 
been based on “the Attorney General’s mistaken 
interpretation” of what constitutes a constitutional 
violation. Pet. Br. at 35. But since the decision in 
Miller v. Johnson, there have been no decisions of 
this Court invalidating an objection by the 
Department of Justice to a voting change on the 
grounds that it was based upon a mistaken 
interpretation of the Constitution. Section 5 is not

Mississippi, a plan that would have increased the number of 
majority black districts was also referred to as the “nigger 
plan.” Pet. App. 31a.

20



being administered in an unconstitutional manner 
by the Department of Justice.

Shelby County also argues that the decline in 
the ‘“number and nature’ of Section 5 objections. . . 
further confirms that a prior restraint is 
unnecessary.” Pet. Br. at 29. However, in making 
that claim, Shelby County fails to take into account 
the impact Bossier II had on Section 5 objections. 
Although there were in fact a significant number of 
Section 5 objections after 1982, Bossier 11 had the 
effect of allowing preclearance of changes that would 
have been objected to under the preexisting 
standard. Bossier II held that the purpose prong of 
Section 5 "covers only retrogressive dilution." 528 
U.S. at 328. Thus, a voting change adopted with an 
admittedly discriminatory purpose would not be 
objectionable under Section 5 unless it was adopted 
with the purpose of making minority voters worse off 
than they were under the preexisting system.

The legislative history contains a 
comprehensive study of Section 5 objections, one of 
whose authors, Peyton McCrary, is an employee of 
the Voting Section of the Department of Justice. The 
"principal finding" of the study was:

[B]y the 1990s, the purpose prong of 
Section 5 had become the dominant 
legal basis for objections. Almost half 
(45 percent) of all objections were based 
on purpose alone. If we include 
objections based both on purpose and 
retrogressive effect, and those based 
both on purpose and Section 2, the 
Department's finding of discriminatory 
purpose was present in 78 percent of all

21



decisions to interpose objections in the 
decade preceding Bossier II.

House Hearing, Preclearance Standards, at 177 
(2005) (McCrary, Seaman & Valelly "The End of 
Preclearance As We Knew It: How the Supreme 
Court Transformed Section 5 of the Voting Rights 
Act”). As Congress concluded, “[t]he effectiveness of 
the Voting Rights Act or 1965 has been significantly 
weakened by the United States Supreme Court 
decision[] in Reno v. Bossier Parish II.” 120 Stat. 
577, Sec 2(b)(6).

The McCrary report further concluded that "a 
purpose finding was present in an astonishing 89 
percent of all redistricting objections” in the 1990s. 
House Hearing, Preclearance Standards, at 177
(2005) . The decline in objections over the past 
decade can be laid in large measure to the limitation 
on objections imposed by Bossier II, rather than a 
decline in discriminatory behavior by covered 
jurisdictions or a decline in the need for Section 5.

ii. Requests for More Information
Congress also relied upon "more information 

requests” (MIRs) by the Department of Justice as 
evidence of the continued need for Section 5 in the 
covered jurisdictions. 120 Stat. 577, Sec. 2(b)(4)(A). 
MIRs resulted in the modification of more than 800 
proposed voting changes or their withdrawal from 
consideration. H.R. Rep. No. 109-478, at 40-1 & n.92
(2006) .

A study included in the legislative history 
found that MIRs advanced two significant goals. 
First, since MIRs “are issued at far higher rates than 
are letters of objection . . . they have the potential to

22



affect a wider range and larger number of changes, 
relative to objections, submitted to the DOJ for 
review.” House Hearing, Evidence of Continued 
Need, Vol. II, at 2555 (2006) (Luis Ricardo Fraga 
and Maria Lizet Ocampo, “More Information 
Requests and the Deterrent Effect of Section 5 of the 
Voting Rights Act”). Second, “the impact of MIRs 
that were likely to serve as deterrents to the pursuit 
of procedures and practices that could have a 
discriminatory effect on African Americans and 
language minorities demonstrates that MIRs double 
the number of changes that did not have legal 
standing to be implemented under Section 5.” Id. at 
255-26.

Hi. Section 5 Enforcement Actions
The number of Section 5 enforcement actions 

provided Congress with additional evidence of the 
continued need for Section 5 in the covered 
jurisdictions. 120 Stat. 577, Sec. 2(b)(4)(A). Section 
5 enforcement actions have blocked implementation 
of an extraordinary array of devices that would 
otherwise have diluted minority voting strength. 
From 1982 to 2004, plaintiffs succeeded in 105 
enforcement actions against jurisdictions that had 
failed to comply with Section 5. Twenty-two of these 
successful actions were filed in Alabama alone, the 
second highest state total. House Hearing, Evidence 
of Continued Need, Vol. I, at 250 tbl. 4 (2006) (data 
compiled by the National Commission on the Voting 
Rights Act). Congress properly cited enforcement 
actions as “[ejvidence of continued discrimination” in 
extending Section 5. 120 Stat. 577, Sec. 2(b)(4).

23



iv. Denials of Preclearance by the D.C.
District Court

In addition to objections by DOJ, Congress 
found “[ejvidence of continued discrimination ’’based 
upon “the number of requests for declaratory 
judgments denied by the United States District 
Court for the District of Columbia.” 120 Stat. 580, 
Sec. 2(b)(4)(B). During the post-1982 period, 25 
requests for judicial preclearance of voting changes 
were either denied because the submitting 
jurisdiction failed to carry its burden of proof of no 
discriminatory purpose or effect, or were withdrawn. 
House Hearing, Evidence of Continued Need, Vol.l, 
at 197, 270 (2006) (report of National Commission on 
the Voting Rights Act). These judicial preclearance 
actions further document the current need for 
Section 5 and the important role it continues to play 
in the covered jurisdictions.

v. Section 2 Litigation
The evidence before Congress showed that of 

the 114 published Section 2 decisions resulting in 
outcomes favorable to minority plaintiffs, 64 
originated in covered jurisdictions, while only 50 
originated in non-covered jurisdictions. To Examine 
the Impact and Effectiveness of the Voting Rights 
Act, Hearing before the Subcommittee on the 
Judiciary, House of Representatives, 109th Cong., 1st 
Sess., at 974 (October 18, 2005) (“House Hearing, 
Impact and Effectiveness”); see also H.R. Rep. No. 
109-478, at 53 (2006); Pet. App. 49a; J.A. 51a. While 
the covered jurisdictions contained less than 25% of 
the country’s population, they accounted for 56% of 
successful Section 2 litigation since 1982. Id.; J.A. 
48a, 51a. Aside from the number of favorable

24



outcomes, there was a higher success rate for Section 
2 litigation in the covered than in the non-covered 
jurisdictions. In the covered jurisdictions, 40.5% of 
published Section 2 decisions resulted in favorable 
outcomes for plaintiffs, compared to only 30% in non- 
covered jurisdictions. House Hearing, Impact and 
Effectiveness, at 974 (2005).

The differences in covered and non-covered 
jurisdictions is even more pronounced when 
unpublished Section 2 cases are taken into account. 
According to data compiled by the National 
Commission on the Voting Rights Act and 
Department of Justice historian Peyton McCrary, 
there have been at least 686 unpublished successful 
Section 2 cases since 1982, amounting to a total of 
some 800 published and unpublished cases with 
favorable outcomes for minority voters. Of these, 
651 (81%) were filed in covered jurisdictions. Pet. 
App. 51a; J.A. 51a. Of the eight states with the 
highest number of successful Section 2 cases per 
million residents (Alabama, Mississippi, Arkansas, 
Texas, South Carolina, Georgia, and the covered 
jurisdictions of South Dakota and North Carolina), 
all but one was covered in whole or in part. The only 
exception was Arkansas. Pet. App. 51a-52a. While it 
was not covered by Section 4(b), Arkansas was 
bailed-in to Section 5 coverage in 1990 by a court 
order requiring it to preclear its house and senate 
redistricting plans following the 1990 census. See 
Jeffers v. Clinton, 740 F.Supp. 585, 601-02 (E.D. Ark. 
1990).

Alabama had 192 successful Section 2 cases, 
Georgia had 69, Louisiana had 17, Mississippi had 
67, North Carolina had 52, South Carolina had 33,

25



Texas had 206, and Virginia had 15. House Hearing, 
Evidence of Continued Need, at 251 tbl.5 (2006); 
J.A.147a-148a. Of the uncovered states, 13 had no 
successful Section 2 cases, six had only one, five had 
only two, two had only three, and two had only four. 
Other than Arkansas, the only state with more than 
10 successful Section cases was Illinois, which had 
11. J.A. 149a-150a. As Dr. McCrary concluded: 
“examining the pattern of outcomes in Section 2 
litigation broken down by states - and by county 
within partially covered states - reinforces the 
assessment that the coverage formula set forth in 
Section 4(b) of the Voting Rights Act targets those 
areas of the country where racial discrimination 
affecting voting is most concentrated.” J.A. 155a.

As further appears from the legislative 
history, decisions since 1982 have found numerous 
and ongoing examples of intentional discrimination 
in Alabama at the state and local levels. Renewing 
the Temporary Provisions of the Voting Rights Act: 
Legislative Options after LULAC v. Perry, Senate, 
109th Cong., 2d Sess., at 372 (July 13, 2006) 
(“Legislative Options”), Congress concluded that the 
need for Section 5 was evident from “the continued 
filing of section 2 cases that originated in covered 
jurisdictions,” many of which resulted in findings of 
intentional discrimination. 120 Stat. 577, Sec. 
2(b)(4)&(5). The disproportionate number of 
successful Section 2 suits in covered jurisdictions is 
even more significant given that Section 5 blocks and 
deters discrimination in the covered jurisdictions, 
and one would expect to see fewer Section 2 cases 
there.

26



Shelby County argues that “the McCrary 
declaration should never have been accepted” 
because Section 5's “constitutionality must be 
measured against the legislative record alone.” Pet. 
Br. at 53. The National Commission compiled data 
on unreported cases in the covered jurisdictions, 
which was included in the legislative record. The 
data on the unreported cases in the non-covered 
jurisdictions was compiled by Dr. McCrary. Pet. 
App. 54a. While Dr. McCrary’s declaration was not 
included in the legislative record, evidence 
concerning 61 of the 99 settlements he “found in non- 
covered jurisdictions (62%) was on the record 
considered by Congress in adopting the 2006 
Reauthorization Act.” Pet. App. 54a; J.A. 46a-47a.

It was appropriate for the court of appeals to 
consider the McCrary data. First, as the court found, 
“a majority of the unpublished cases from non- 
covered jurisdictions (as well as all from covered 
jurisdictions) appears in the legislative record.” Pet. 
App. 54a. Second, evidence developed after an act 
has been enacted and implemented, known as “post­
enactment evidence,” is admissible and relevant in 
determining the constitutionality of the act.

In Tennessee v. Lane, 541 U.S. at 524-25 nn. 6- 
9 &13, for example, the Court relied upon evidence 
consisting of articles and cases published ten or more 
years after the Act’s enactment, as well as recent 
versions of statutes and regulations, in upholding the 
constitutionality of Title II of the Americans with 
Disabilities Act of 1990. The court of appeals in this 
case properly relied upon Tennessee u. Lane in taking 
into account the report prepared by Dr. McCrary of 
unpublished cases in non-covered jurisdictions

27



because it “corroborates the disparities in the level of 
discrimination between covered and non-covered 
jurisdictions revealed by the published data.’’ Pet. 
App. 54a-55a. Also see Bartnicki v. Vopper, 523 U.S. 
514, 531 n.17 (2001) (relying upon “post-enactment 
evidence,” i.e., the disclosure of the identities of 
persons responsible for the interception of electronic 
communications, as undermining the argument that 
federal and state laws prohibiting disclosure of such 
communications promoted the purposes of the First 
Amendment).4 Third, Shelby County itself relies 
upon post-enactment evidence to support its 
argument that preclearance is “difficult to secure.” 
Pet. Br. at 26 (citing Texas v. United States, 831 
F.Supp.2d 244 (D.D.C. 2011), which denied the 
state’s motion for summary judgment seeking 
preclearance of its redistricting plans). Evidence 
compiled since the 2006 extension of Section 5 is 
relevant in determining its constitutionality.

vi. The Use Of Federal Observers
Congress concluded that the need for Section 5 

was also evident from “the tens of thousands of 
Federal observers that have been dispatched to 
observe elections in covered jurisdictions.” 120 Stat. 
577, Sec. 2(b)(4)&(5). Since 1982, the Attorney 
General has assigned between 300 and 600 observers 
each year. H.R. Rep. No. 109-478, at 44 (2006).

4 Circuit court decisions are to the same effect. See, e.g., Pruett 
v. Harris County Bail Bond Bd., 499 F.3d 403, 410-11 (5th Cir. 
2007); Adarand Constructors, Inc. v. Slater, 228 F.3d 1147, 
1166 (10th Cir. 2000); Engineering Contractors Ass’n v. Metro. 
Dade County, 122 F.3d 895, 911 (11th Cir. 1997); Contractors 
Ass’n of Eastern Pennsylvania, Inc. v. City of Philadelphia, 6 
F.3d 990, 1004 (3d Cir. 1993).

28



Congress found that federal observers were certified 
by the Attorney General “only when there is a 
reasonable belief that minority citizens are at risk of 
being disenfranchised,” often through “harassment 
and intimidation inside polling locations.” Id. Five 
of the six states originally covered by Section 5 - 
Louisiana, Georgia, Alabama, South Carolina, and 
Mississippi - accounted for about 66% of all the 
observer coverages since 1982. Id. at 24-5. As 
Congress found, “[ojbservers have played a critical 
role preventing and deterring 14th and 15th 
amendment violations by communicating to the 
Department of Justice any allegedly discriminatory 
conduct for further investigation.” H.R. Rep. No. 109- 
478, at 25 (2006).

vii. Continued Racial Bloc Voting
When it reauthorized Section 5 in 2006, 

Congress expressly found that “the continued 
evidence of racially polarized voting in each of the 
jurisdictions covered by the expiring provisions of the 
Voting Rights Act of 1965 demonstrates that racial 
and language minorities remain politically 
vulnerable, warranting the continued protection of 
the Voting Rights Act of 1965." 120 Stat. 577, Sec. 
2(b)(3). Indeed, the House Judiciary Committee 
concluded that racial bloc voting was “the clearest 
and strongest evidence the Committee has before it 
of the continued resistance within covered 
jurisdictions to fully accept minority citizens and 
their preferred candidates into the electoral process. 
H.R. Rep. No. 109-478, at 34 (2006).

The courts, like Congress, have long 
recognized the relevance of racial bloc voting in 
making preclearance determinations under Section

29



5. In City of Rome, 446 U.S. at 183, for example, the 
Court affirmed the denial of preclearance to various 
voting changes after concluding that the lower court 
had correctly held “that the electoral changes . . . 
when combined with the presence of racial bloc 
voting and Rome’s majority white population and at- 
large electoral system, would dilute Negro voting 
strength.” Other decisions are to the same effect. 
See City of Port Arthur v. United States, 459 U.S. 
159, 163 (1982) (affirming a denial of preclearance on 
the grounds, inter alia, of “severe racial bloc voting” 
in the jurisdiction); Busbee v. Smith, 549 F.Supp. 
494, 499 (D.D.C. 1982) (denying preclearance to 
Georgias 1980 congressional redistricting after 
finding, inter alia, “racially polarized voting”), judg. 
aff d, 459 U.S. 1166 (1983). Racial bloc voting is not 
itself a violation of Section 5, but the existence of 
racial bloc voting can be critical in determining 
whether a proposed voting change has the purpose or 
effect of abridging minority voting strength.

Similarly, racial bloc voting is one of the 
factors identified in the Senate Report that 
accompanied the 1982 amendment and extension of 
the Voting Rights Act as probative evidence of vote 
dilution under Section 2. See S. Rep. No. 97-417, 
97th Cong. 2d Sess. at 28-9 (May 27, 1982) (listing 
the Senate factors ). As the Court explained in 
Thornburg v. Gingles, 478 U.S. 30, 47 (1986), “[t]he 
essence of a § 2 claim is that a certain electoral law, 
practice, or structure interacts with social and 
historical conditions to cause an inequality in the 
opportunities enjoyed by black and white voters to 
elect their preferred representatives.” By the same 
token, in assessing the impact of a voting change 
under Section 5, it is entirely reasonable to take into

30



account the conditions under which the change 
would be implemented and how it would interact 
with social and historical conditions, including 
racially polarized voting, in the covered jurisdictions.

The consideration of social and historic 
conditions in enacting legislation to enforce the 
Fourteenth and Fifteenth Amendments is not unique 
to Section 5 of the Voting Rights Act. In Nevada 
Dept, of Human Resources v. Hibbs, 538 U.S. 721, 
730-31 (2003), the Court noted that Congress relied 
heavily upon evidence of employment practices in the 
private sector in sustaining the constitutionality of a 
challenged provision of the Family and Medical 
Leave Act..

Shelby County acknowledges that racially 
polarized voting may be relevant to proving vote 
dilution but argues that evidence of vote dilution 
cannot be used to justify Section 5. Pet. Br. at 19, 32. 
The distinction that Shelby County would like to 
draw between first-generation voting discrimination 
and second-generation voting discrimination is one 
that both this Court and Congress have properly 
rejected. For example, in City of Rome, this Court 
sustained the 1975 reauthorization of Section 5 
based in part on Congress’ finding that “[a]s 
registration and voting of minority citizens 
increase G, other measures may be resorted to which 
would dilute increasing minority voting strength." 
446 U.S. at 181. See also Allen v. State Board of 
Elections, 393 U.S. 544, 569 (1969)(“[t]he right to 
vote can be affected by a dilution of voting power as 
well as by an absolute prohibition on casting a 
ballot);” Georgia v. United States, 411 U.S. at 534 
(redistricting plans “have the potential for diluting

31



the value of the Negro vote and are within the 
definitional terms of § 5"). Although vote dilution 
may be a more subtle form of voting discrimination 
than vote denial, Congress has recognized that its 
“effect and results are the same, namely a 
diminishing of the minority community’s ability to 
fully participate in the electoral process and to elect 
their preferred candidates of choice.” H.R. Rep. No. 
109-478, at 6 (2006).

viii. The Deterrent Effect of Section 5
In reauthorizing Section 5, Congress 

described preclearance as a “vital prophylactic tool” 
and concluded that “the existence of Section 5 
deterred covered jurisdictions from even attempting 
to enact discriminatory voting changes.” H.R. Rep. 
No. 109-478, at 21, 24 (2006). More specifically, 
Congress found that “[a]s important as the number 
of objections that have been interposed to protect 
minority voters against discriminatory changes is 
the number of voting changes that have never gone 
forward as a result of Section 5.” Id. at 24. The 
court of appeals properly declined to “second guess” 
that congressional finding, which was based on 
abundant evidence in the legislative record that 
Section 5 had a strong deterrent effect. Pet. App. 
44a. See Eldred v. Ashcroft, 537 U.S. 186, 208 
(2003) (courts “are not at liberty to second-guess 
congressional determinations and policy 
judgments’’); Turner Broadcasting System, Inc. v. 
F.C.C., 520 U.S. 180, 195 (1997) (“courts must accord 
substantial deference to the predictive judgments of 
Congress”); United States Dept, of Labor u. Triplett, 
494 U.S. 715, 721 (1990) (noting “the heavy 
presumption of constitutionality to which a ‘carefully

32



considered decision of a coequal and representative 
branch of Government’ is entitled”).

The deterrent effect of Section 5 was not, of 
course, the only basis for its extension. Instead, and 
as noted above, Congress relied upon a variety of 
other factors, e.g., Section 5 objections, Section 2 
litigation, successful Section 5 enforcement actions, 
unsuccessful judicial preclearance actions, the use of 
MIRs, racially polarized voting, etc. Pet. App. 24a, 
44a. Congress never took the position, as asserted by 
Shelby County, that the deterrent effect of Section 5 
standing alone would justify its extension “to the 
crack of doom.” Pet. Br. at 39 (quoting Williams, J., 
dissenting).

C. The Constitutional Validity of the 
Voting Rights Act Is Not 
Undermined By Advances In 
Voting Equality Since 1965.

Both sides in this case agree that the Voting 
Rights Act has been a success. Shelby County views 
that success as evidence that Section 5 has outlived 
its usefulness. Congress saw that success as 
evidence that Section 5 could continue to play a 
critical role in helping to address the ongoing 
problem of voter discrimination. Shelby County 
offers three arguments in response, none of which 
can withstand scrutiny

1. Shelby County argues that “Section 4(b)’s 
formula is no longer an ‘appropriate’ means of 
determining the jurisdictions that should be subject 
to coverage,” Pet. Br. at 40, because the rates of 
minority registration and voting in the covered 
jurisdictions “now approach parity." Id. at 41. That

33



is, at best, a misleading picture.
Congress examined this question in 2006 and 

found significant disparities in registration and 
turnout between minorities and non-minorities in 
several jurisdictions covered by Section 5. In 
Virginia, for example, Congress reported that in 
2004 the black voter registration rate was about 11% 
behind the rate for whites, with only 49% of blacks 
turning out to vote compared to 63% of whites. H.R. 
Rep. No. 109-478, at 25 (2006). In Texas, Congress 
found a 20% gap in registration between whites and 
Hispanics with a greater gap in voter registration. 
Id. at 29; S. Rep. No. 109-295, at 11 (2006). 
Moreover, these statistics understate the true 
disparities because in computing them Congress 
counted Hispanics as whites. Pet. App. 200a. Given 
the low registration and turnout rates of Hispanics, 
their inclusion in the “white” category reduced the 
actual disparity between black and white 
registration and turnout, as well as the disparity 
between Hispanic and white registration and 
turnout. See Nathaniel Persily, The Promise and 
Pitfalls of the New Voting Rights Act, 117 Yale 
L.J.174, 197 (2007) (“once Hispanics are taken out of 
the white category the picture changes 
considerably”).

Congress reported that in five of the 16 states 
covered in whole or part by § 4(b) - California, 
Georgia, Mississippi, North Carolina, and Texas - 
black voter registration and turnout was higher 
among blacks than whites. Pet. App. 200a-201a; S. 
Rep. No. 109-295, at 11 (2006). But when
registration and turnout rates for blacks are 
compared to the rates for non-Hispanic whites, only

34



one of these states (Mississippi) had higher 
registration and turnout rates for blacks. As the 
court of appeals held: “Aside from North Carolina, 
Alabama, and Mississippi, all of the remaining 14 
states covered in whole or in part by Section 4(b) had 
lower voter registration and turnout rates for blacks, 
than for non-Hispanic whites.” Pet. App. 201a n.12.

These disparities may be less today than they 
were in the past, but progress toward the goal of 
voting equality that Section 5 was meant to achieve 
is not the same as reaching that goal. It would be 
inconsistent with that purpose to conclude that the 
partial amelioration of voting discrimination in the 
covered jurisdictions now renders Section 4(b) 
unconstitutional. Sections 5 and 4(b) were designed 
to banish, not merely to ameliorate, the blight of 
racial discrimination in voting.

In addition, there is a correlation between 
inclusion in Section 4(b)’s coverage formula and 
numerous other factors showing the continuing need 
for Section 5 and justifying its extension in 2006. In 
reauthorizing Section 5 in 1975, “Congress 
acknowledged that largely as a result of the Act, 
Negro voter registration had improved dramatically 
since 1965. H.R. Rep. 109-478 at 6; S. Rep. 109-295 
at 13. Congress determined, however, that ‘a bleaker 
side of the picture yet exists.’” City of Rome, 446 
U.S. at 180. The legislative history of the 2006 
extension of Section 5 demonstrates that “a bleaker 
side of the picture” continues to exist, see Point IB, 
supra, and that there was ample basis for Congress 
to conclude that that “without the continuation of the 
Voting Rights Act of 1965 protections, racial and 
language minority citizens will be deprived of the

35



opportunity to exercise their right to vote, or will 
have their votes diluted, undermining the significant 
gains made by minorities in the last 40 years.” 120 
Stat. 577, Sec. 2(b)(9). As the court of appeals held, 
Section 4(b) “continues to identify the jurisdictions 
with the worst problems.” Pet. App. 57a.

2. Next, Shelby County argues that the 
increase in black elected officials in the covered 
jurisdictions is further proof that the preclearance 
requirement is no longer needed. Just the opposite is 
true. The overwhelming majority of black officials 
have been elected from majority black districts, most 
of which were created as a result of Section 5 
objections and Section 2 litigation. As Congress 
found, in 2000 only 8% of African Americans were 
elected from majority white districts. Language 
minority citizens fared much worse. As of 2000, no 
Native Americans or Hispanics had been elected to 
office from a majority white district. H.R. Rep. No. 
109-478, at 34 (2006).

In Alabama, two African Americans who were 
initially appointed to the state Supreme Court were 
defeated in 2000 by white opponents. Every African 
American member of the Alabama Legislature was 
elected from a single member district with an 
effective black voter majority. House Hearing, 
History, Scope, and Purpose, Vol. II, at 3199 (2005) 
(statement of James U. Blacksher). See also James 
U. Blacksher, et ah, Voting Rights in Alabama:1982- 
2006, 17 So. Cal. Rev. Law & Soc. Just. 249, at 249 
(2008)(“voting remains largely racially polarized, and 
black candidates rarely are elected in majority-white 
districts ). And most of the majority black districts 
had to be ordered by federal courts. Id. at 260. et seq.

36



Congress also found that “gains by minority 
candidates remain uneven, both geographically and 
by level of office.” Id. at 33. In three of the six 
originally covered states - Mississippi, Louisiana, 
and South Carolina - no African American had ever 
been elected to state-wide office. Id.: Pet. App 23a. 
The House committee further reported that African 
Americans accounted for only 21% of state legislators 
in six southern states where the black population 
averaged 35% - Alabama, Georgia, Louisiana,
Mississippi, South Carolina, and North Carolina. 
H.R. Rep. No. 109-478, at 33 (2006). In addition, the 
committee found that the number of Latinos and 
Asian Americans elected to office nationwide “has 
failed to keep pace with [the] population growth” of 
those two communities. Id.

3. Finally, Shelby County argues that 
preclearance under Section 5 is no longer necessary 
because the ongoing problems of voting 
discrimination can now be adequately addressed 
through Section 2 litigation initiated after 
discriminatory voting changes have gone into effect. 
Congress found otherwise, stating in 2006 that the 
“failure to reauthorize the temporary provisions, 
given the record established, would leave minority 
citizens with the inadequate remedy of a Section 2 
action.” H.R. Rep. No. 109-478, at 57 (2006).

This conclusion was based on extensive 
testimony that Section 2 litigation places the burden 
of proof on the victims of discrimination rather than 
its perpetrators, imposes a heavy financial burden on 
minority plaintiffs, is heavily work-intensive, cannot 
prevent enactment of discriminatory voting

37



measures, and allows discriminatorily elected 
officials to remain in office for years until litigation is 
concluded. Pet. App. 45a-46a. See, e.g., House 
Hearing, History, Scope, and Purpose, Vol. I, at 92, 
97, 101 (2005) (testimony of Nina Perales); icL at 79, 
83-84 (testimony of Anita Earls); House Hearing, 
Evidence of Continued Need, Vol. 1, at 97 (2006) 
(testimony of Joe Rogers). A Federal Judicial Center 
study found that voting cases required nearly four 
times more work than the average district court case 
and ranked as the fifth most work-intensive of the 63 
types of cases analyzed. Pet. App. 45a.5

In Katzenbach, the Court stressed that 
“Congress had found that case-by-case litigation was 
inadequate to combat widespread and persistent 
discrimination in voting, because of the inordinate 
amount of time and energy required to overcome the 
obstructionist tactics invariably encountered in these 
lawsuits.” 383 U.S. at 328; see also id. at 313-15 
(explaining why case-by-case litigation had “proved 
ineffective”). City of Rome also found that “ [c]ase-by- 
case adjudication had proved too ponderous a method 
to remedy voting discrimination.” 446 U.S. at 174. 
Accord, Boerne, 521 U.S. at 526 (Section 5 was 
“deemed necessary given the ineffectiveness of the 
existing voting rights laws, and the slow, costly

5 In Large v. Fremont County, Wyo., 709 F.Supp.2d 1176 (D. 
Wyo. 2010), for example, plaintiffs filed their Section 2 
complaint in October 2005, but did not get a decision on the 
merits until April 2010, some five years later. In Levy v. 
Lexington County. South Carolina, 589 F.3d 708 (4th Cir. 2009), 
the plaintiffs filed their Section 2 complaint in September 2003, 
but did not get a decision on the merits until February 2009, 
which was subsequently vacated and remanded for 
consideration of two intervening election cycles.

38



character of case-by-case litigation”); Georgia v. 
United States, 411 U.S. at 538 n.9 (“[t]he very effect 
of § 5 was to shift the burden of proof with respect to 
racial discrimination in voting”). The Court relied on 
similar findings in Tennessee v. Lane, 541 U.S. at 
531, to sustain the constitutionality of a challenged 
statute: “Faced with considerable evidence of the 
shortcomings of previous legislative responses, 
Congress was justified in concluding that this 
‘difficult and intractable proble[m]’ warranted ‘added 
prophylactic measures in response.’” (alteration in 
original) (quoting Hibbs, 538 U.S. at 737).

Despite these legislative findings, Shelby 
County contends that Section 2 is an effective 
remedy because “‘plaintiffs’ costs for § 2 suits can in 
effect be assumed by’ the Department of Justice.” 
Pet. Br. at 15 (citing Williams, J., dissenting). The 
evidence shows, however, that the burdens and costs 
of Section 2 litigation have been borne primarily by 
private plaintiffs, and not the Department of Justice. 
According to one report: “The vast bulk of section 2 
actions were brought by minority plaintiffs, often 
acting through civil rights or civil liberties 
organizations. Within the eight states covered by 
our study, section 2 litigation brought solely by the 
Department of Justice played only a minor role in 
effecting changes in local election systems. 
Chandler Davidson & Bernard Grofman, The Voting 
Rights Act and the Second Reconstruction in QUIET
R e v o l u t io n  in  th e  So u t h : T h e  Im p a c t  o f  the  
VOTING RIGHTS ACT 1965-1990 81 (C. Davidson et al. 
eds., Princeton Univ. Press 1994). Another report 
shows that from 1977 through 2004 of the 5,348 
voting rights cases filed in U.S. District Courts, 5,100 
(95.4% ) were filed by private parties, with only 248

39



(4.6%) filed by the Department of Justice. Daniel 
McCool, Susan M. Olson, & Jennifer L. Robinson, 
N a t iv e  V o t e : A m e r ic a n  In d ia n s , th e  V o t in g  R ig h t s  
A c t , a n d  th e  R ig h t  to  V o te  39 (Cambridge Univ. 
Press 2007). The role of the Department of Justice in 
bringing Section 2 suits in covered jurisdictions has 
not improved. Since the 2006 extension of Section 5, 
the Department of Justice has brought only one 
Section 2 suit in a covered jurisdiction, a school 
district in Georgetown County, South Carolina. See 
http://www.justice.gov/crt/about/vot/litigation/recent_ 
sec2 (last visited January 23, 2012).

D. The Bailout and Bail-In Provisions 
of the Voting Rights Act Reinforce 
the Constitutionality of the 
Coverage Formula

Shelby County portrays the coverage formula 
as in inflexible rule that cannot adjust to changing 
circumstances. It is not. Jurisdictions initially 
subject to preclearance under Section 4(b) can 
“bailout” by demonstrating that they no longer 
enSage in voting discrimination. Jurisdictions that 
were not initially subject to preclearance based on 
their history can be “bailed-in” by engaging in 
discriminatory behavior. These statutory
adjustment mechanisms are designed to “ensure 
[that] Congress’ means are proportionate to [its] 
ends, Boerne, 521 U.S. at 533, and must be 
considered in any constitutional evaluation of 
Section 5. The court of appeals did precisely that, 
explaining that “we look not just at the section 4(b) 
formula, but at the statutes as a whole, including its 
provisions for bail-in and bailout.” Pet. App. 61a.

40

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


Bailout addresses the potential over­
inclusiveness of the statute. A covered jurisdiction is 
entitled to bailout from Section 5 if it can show that 
it has not used a discriminatory test or device within 
the preceding ten years, has fully complied with the 
Voting Rights Act, and has engaged in constructive 
efforts to facilitate equal access to the electoral 
process. 42 U.S.C. § 1973b(a); S. Rep. No. 417, at 43- 
62 (1982). In 1982, Congress altered the bailout 
formula so that jurisdictions down to the county level 
could bail out independently. One of the main 
purposes of the new bailout provision was to provide 
local jurisdictions with an incentive to change their 
voting practices by eliminating structural and other 
barriers to minority political participation. Nw. 
Austin further liberalized bailout by ruling that “all 
political subdivisions,” and not only those that
conduct voter registration, are entitled to seek
exemption from Section 5. 557 U.S. at 211.

As of May 9, 2012, 136 jurisdictions had bailed 
out after demonstrating that they no longer 
discriminated in voting. Pet. App. 62a. The
jurisdictions included 30 counties, 79 towns and 
cities, 21 school boards, and six utility or sanitary 
districts. In addition, the Attorney General is 
actively considering more than 100 additional
jurisdictions for bailout. Pet. App. 63a. Since 1984, 
the Attorney General has consented to every bailout 
action brought by a political subdivision. J.A. 84a. 
One of the jurisdictions that DOJ has consented to 
bailout is the state of New Hampshire, which has ten 
covered local jurisdictions. See The State of New 
Hampshire v. Holder, Case No. l:12-cv-01854 (D.D.C. 
filed Dec. 5, 2012). Bailout is obviously not, as Shelby 
County contends, “a mirage.” Pet. Br. at 54 (quoting

41



Nw. Austin, 557 U.S. at 215 (Thomas, J., concurring 
and dissenting).

The availability of bail-in addresses the 
potential under-inclusiveness of the coverage 
formula and the fact that some bad-acting 
jurisdictions may not be covered by the Section 4(b) 
formula. Pet. App. 65a. Pursuant to 42 U.S.C. § 
1973a(c), a court that has found a violation of the 
Fourteenth or Fifteenth Amendment may retain 
jurisdiction for an appropriate period of time and 
subject a jurisdiction to the preclearance 
requirements of Section 5. Two non-covered states, 
Arkansas and New Mexico, were subjected to partial 
preclearance under the bail-in provision, as well as 
jurisdictions in California, Colorado, Florida, Illinois, 
Nebraska, New Mexico, New York. South Dakota, 
and the city of Chattanooga. Pet. App. 61a-62a; J.A. 
141a-143a. As the court of appeals concluded, “the 
legislative record shows that [the Section 4(b) 
formula], together with the statute’s provisions for 
bail-in and bailout . . . continues to single out the 
jurisdictions in which discrimination is 
concentrated. Pet. App. 65a. Accordingly, the court 
saw no principled basis for setting aside the district 
court's conclusion that section 5 is ‘sufficiently 
related to the problem that it targets,’ Nw. Austin, 
129 S.Ct. at 2512.” Pet. App. 65a-66a.

In addition to allowing bailout and bail-in, 
Section 5 contains a number of other limitations on 
its coverage which further argue for the rationality 
as well as the congruence and proportionality of the 
statute: confinement to those regions of the country 
where voting discrimination had been most flagrant; 
limitation to a discrete class of state laws, i.e., state

42



voting laws; and, the existence of a coverage 
termination date. Boerne held that while legislation 
implementing the Fourteenth Amendment did not 
require "termination dates" or "geographic 
restrictions . . . limitations of this kind tend to 
ensure Congress' means are proportionate to ends 
legitimate under § 5." 512 U.S. at 533.

E. An Unbroken Line of Cases From 
This Court And Lower Courts 
Have Upheld The Constitutionality 
Of Section 5 Over Many Decades.

Shelby County’s argument that Section 5 can 
no longer be justified by current conditions is not a 
new one. Similar arguments were rejected in South 
Carolina v. Katzenbach, 383 U.S. at 303, Georgia v. 
United States, 411 U.S. at 535, City of Rome u. 
United States, 446 U.S. at 182, and Lopez u. 
Monterey County, 525 U.S. at 282. Of course, 
conditions can change. But the constitutional 
significance of any changes can and should be 
informed by how this Court has approached that 
question in the past.

The plaintiffs in Katzenbach challenged the 
coverage formula as being defective because it was 
“awkwardly designed . . . and . . . disregarded] 
various local conditions which have nothing to do 
with racial discrimination. 383 U.S. at 329. The 
Court held “ [tjhese arguments . . .  are largely beside 
the point” because Section 4(b) was designed to 
describe these areas . . . relevant to the problem of 
voting discrimination.” Id. Congress was entitled 
to infer a significant danger of the evil in the few 
remaining States and political subdivisions covered 
by § 4(b) of the Act. No more was required to justify

43



the application to these areas of Congress’ express 
powers under the Fifteenth Amendment.” Id. The 
Court further held that “[legislation need not deal 
with all phases of a problem in the same way, so long 
as the distinctions drawn have some basis in 
practical experience.” Id. at 331.

In Georgia v. United States, 411 U.S. at 531, 
the state argued that Section 5 did not apply to 
reapportionment. The Court disagreed and held “for 
the reasons stated at length in South Carolina v. 
Katzenbach . . .  we reaffirm that the Act is a 
permissible exercise of congressional power under § 2 
of the Fifteenth Amendment.” Id. at 535.

The City of Rome argued that even if the 
preclearance requirements were constitutional when 
enacted in 1965, "they had outlived their usefulness 
by 1975." City of Rome, 446 U.S. at 180. The Court 
noted that black voter registration “had improved 
dramatically since 1965,” and “the number of Negro 
elected officials had increased since 1965.” Id. at 
180. But it upheld the extension of Section 5 as 
plainly a constitutional method of enforcing the 

Fifteenth Amendment.” Id. at 182. In doing so, it 
relied upon Congress s conclusions that Section 5 
has become widely recognized as a means of 

promoting and preserving minority political gains in 
covered jurisdictions, that “recent objections entered 
b\ the Attorney General . . .  to Section 5 submissions 
clearly bespeak the continuing need for this 
pi eclearance mechanism, and that Section 5 “serves 
to insure that that progress not be destroyed through 
new' procedures and techniques.” Id. at 181.

In 1999, the State of California argued "§ 5 
could not withstand constitutional scrutiny if it were

44



interpreted to apply to voting measures enacted by 
States that have not been designated as historical 
wrongdoers in the voting rights sphere." Lopez v. 
Monterey County, 525 U.S. at 282. The Court 
disagreed:

Legislation which deters or remedies 
constitutional violations can fall within 
the sweep of Congress' enforcement 
power even if in the process it prohibits 
conduct which is not itself 
unconstitutional and intrudes into 
legislative spheres of autonomy 
previously reserved to the States.

Id. at 282-83 (quoting Boerne, 521 U.S. at 518).
And a month before the extension of Section 5 

in 2006, this Court decided LULAC u. Perry, 548 U.S. 
399 (2006), which found a Texas redistricting plan 
diluted minority voting strength in violation of 
Section 2 of the Voting Rights Act, 42 U.S.C. § 1973. 
In reaching its decision, all eight justices who 
addressed the issue agreed that compliance with the 
preclearance requirement was a “compelling state 
interest.” Id. at 475 n.12, 485 n.2, 518.

In City of Boerne, moreover, the Court 
repeatedly cited the Voting Rights Act as an example 
of congressional legislation that was constitutional. 
It noted that the seven year extension of Section 5 in 
1975 and the nationwide ban on literacy tests were 
"within Congress' power to enforce the Fourteenth 
and Fifteenth Amendments, despite the burdens 
those measures placed on the States." Id. And, it 
described Section 5 as an "appropriate" measure 
"'adapted to the mischief and wrong which the

45



[Fourteenth] [Ajmendment was intended to provide 
against'." Id. at 532 (quoting The Civil Rights Cases, 
109 U.S. 3, 13 (1883)).

The Court in Florida Prepaid Postsecondary 
Education Expense Board v. College Savings Bank, 
527 U.S. 627, 639 (1999), another case involving 
Section 5 enforcement of the Fourteenth 
Amendment, expressly noted the constitutionality "of 
Congress' various voting rights measures" passed 
pursuant to the Fourteenth and Fifteenth 
Amendments, which it described as tailored to 
"remedying or preventing" discrimination based 
upon race. See also Board of Trustees of University of 
Alabama v. Garrett, 531 U.S. 356, 373 (2011) 
(describing the Voting Rights Act as “a remedial 
scheme designed to guarantee meaningful 
enforcement of the Fifteenth Amendment”); Nevada 
Dept, of Human Resources v. Hibbs, 538 U.S. at 738 
(citing as “valid exercises of Congress' § 5 power 
[under the Fourteenth Amendment]" the 
“preclearance requirement for changes in State’s 
voting procedures”). As the court of appeals held, 
citing Hibbs, 538 U.S. at 736, “[w]hen Congress seeks 
to combat racial discrimination in voting . . .  it acts 
at the apex of its powers.” Pet. App. 19a.

The Boerne line of cases confirms the 
constitutionality of Section 5 of the Voting Rights Act 
and the coverage formula. To the extent they discuss 
legislation enacted by Congress pursuant to the 
enforcement provisions of the Fourteenth and 
Fifteenth Amendments to redress the problem of 
racial discrimination in voting, they do so to affirm 
its constitutionality.

Challenges to the constitutionality of Sections

46



5 and 4(b) have also been consistently rejected by 
lower courts. The District Court for the District of 
Columbia rejected a challenge to the 
constitutionality of Section 5 as reauthorized in 1982 
in County Council of Sumter County, S.C. v. United 
States, 555 F. Supp. 694 (D.D.C. 1983). The county 
claimed the 1982 extension was unconstitutional 
because the coverage formula was outdated. It 
pointed out that as of May 28, 1982, more than half 
of the age eligible population in South Carolina and 
Sumter County was registered, facts which it said 
"distinguish the 1982 extension as applied to them 
from the circumstances relied upon in South 
Carolina v. Katzenbach, supra, to uphold the 1965 
Act." Id. at 707. The three-judge court rejected that 
argument, concluding that Section 5 "had a much 
larger purpose than to increase voter registration in 
a county like Sumter to more than 50 percent." Id at 
707-08. In support of its conclusion, the court noted 
that "Congress held hearings, produced extensive 
reports, and held lengthy debates before deciding to 
extend the Act in 1982." Id. at 707 n.13.

The same court rejected a challenge to the 
constitutionality of Section 5 in Giles v. Ashcroft, 193
F.Supp.2d 258, 261 (D.D.C. 2002). It declined to 
reexamine the coverage formula and concluded “[t]he 
Supreme Court's previous decisions upholding the 
Voting Rights Act have in effect foreclosed such 
challenges to Section 5.” Id. at 263.

Likewise, in Janis v. Nelson, 2009 WL 
5216902 at **7-8 (D. S.D. 2009), the District Court 
for the District of South Dakota rejected a challenge 
to the constitutionality of the 2006 extension of 
Section 5 as applied to Shannon County. The state

47



argued that Section 5 was now outdated because 
Shannon County was experiencing high voter 
registration rates and above national average voter 
turnout rates. The court dismissed these arguments, 
concluding that “South Dakota’s history of 
discriminating against Native Americans and the 
risk that such discrimination will increase in the 
absence of the preclearance requirement set forth in 
Section 5 of the Voting Rights Act compels the court 
to reject state defendants’ argument that Section 5 of 
the Voting Rights Act is unconstitutional as applied 
to Shannon County.” Id. at *8.

Nothing in the legislative history of the 2006 
reauthorization provides a reason to depart from 
these precedents. To the contrary, the evidence 
considered by Congress in 2006 abundantly supports 
the extension of Section 5 as an appropriate tool to 
combat ongoing discrimination.

II. RECENT SECTION 5 OBJECTIONS 
FURTHER DEMONSTRATE THE 
CONTINUING NEED FOR SECTION 5.
The continued need for Section 5 and the 

appropriateness of Section 4(b)’s coverage are 
evident from recent objections involving Texas, 
South Carolina, and Florida.

1. In denying preclearance to Texas’ 2011 
Congressional plan, the court concluded it was both 
“retrogressive” and had been adopted “with 
discriminatory intent.” Texas v. United States, 2012 
WL 3671924 **14, 21 (D.D.C. Aug. 28, 2012). It 
based its finding of discriminatory intent upon 
numerous factors, including “Texas’s history of 
failures to comply with the VRA,” and the fact that

48



Black and Hispanic members of Congress “were 
excluded completely from the process of drafting new 
plans, while the preferences of Anglo members were 
frequently solicited and honored.” Id. at **20-1.

The court denied preclearance to the Senate 
plan because it “was enacted with discriminatory 
purpose as to SD 10.” Id. at *26. That purpose was 
evident from numerous factors, including that the 
“legislature departed from typical redistricting 
procedures and excluded minority voices from the 
process even as minority senators protested that 
section 5 was being run roughshod.” Id.

The court denied preclearance to the House 
plan because it had a retrogressive effect. However, 
it concluded that “record evidence may support a 
finding of discriminatory purpose in enacting the 
State House Plan.” Id. at *37. The evidence of 
discriminatory purpose included ignoring the 
dramatic growth in minority population, “a 
deliberate, race-conscious method to manipulate the 
Hispanic vote, and the fact that “map drawers 
cracked VTDs [voter tabulation districts] along racial 
lines to dilute minority voting power.” Id. at **36-7.

But for the presence of Section 5, these 
discriminatory plans would have gone into effect, 
confirming the judgment of Congress of the 
continuing need for preclearance in the covered 
jurisdictions.

2. In 2011, South Carolina enacted a new 
photo ID requirement for in-person voting. 
Following an objection by DOJ, the state filed an 
action for judicial preclearance. The experts for 
South Carolina and the defendants agreed that as of

49



April 2012, some 130,000 registered voters in the 
state lacked a photo ID acceptable under the new 
law, and those voters were disproportionately likely 
to be members of a racial minority. South Carolina 
v. Holder, 2012 WL 4814094 *20 (D.D.C. Oct. 10, 
2012). The three-judge court denied preclearance of 
the photo ID requirement for the November 2012 
election because there was not adequate time to 
implement it to ensure the law would not have a 
discriminatory effect on African American voters. It 
granted preclearance for subsequent elections but 
only because the state ultimately agreed during the 
protracted course of the litigation that the law 
“allows citizens with non-photo registration cards to 
still vote without a photo ID so long as they state the 
reason for not having obtained one.” Id. at *1.

In a concurring opinion, Judge Bates 
underscored “the vital function that Section 5 of the 
Voting Rights Act has played [in the litigation]. 
Without the review process under the Voting Rights 
Act, South Carolina’s voter photo ID law certainly 
would have been more restrictive.” Id. at *21. The 
state s agreement to modify the ID law was driven by 
“South Carolina officials’ efforts to satisfy the 
requirements of the Voting Rights Act.” Id. As 
Judge Bates concluded: “The Section 5 process here .
. . demonstrates the continuing utility of Section 5 of 
the Voting Rights Act in deterring problematic, and 
hence encouraging non-discriminatory, changes in 
state and local voting laws.” Id. at *22.

3. Texas enacted a new photo ID requirement 
for in-person voting in 2011, and submitted it to the 
Department of Justice for preclearance under Section 
5. While the submission was pending, and after an

50



objection by DOJ to South Carolina’s photo ID law, 
Texas filed an action for judicial preclearance in the 
District Court for the District of Columbia. It 
subsequently added a claim that Section 5 as 
extended in 2006 was now unconstitutional. Texas v. 
Holder, 2012 WL 3743676 *4 (D.D.C. Aug. 30, 2012).

On August 30, 2012, the district court ruled 
that the photo ID requirement was in violation of 
Section 5. It concluded that Texas had failed to meet 
its burden of showing the law would not have a 
retrogressive effect upon minority voters (and thus 
found it unnecessary to reach the question of 
whether the law was also enacted with a 
discriminatory purpose). The court based its holding 
upon three basic facts: “(1) a substantial subgroup of 
Texas voters, many of whom are African American or 
Hispanic, lack photo ID; (2) the burdens associated 
with obtaining ID will weigh most heavily on the 
poor; and (3) racial minorities in Texas are 
disproportionately likely to live in poverty. 
Accordingly, SB 14 will likely ‘lead to a retrogression 
in the position of racial minorities with respect to 
their effective exercise of the electoral franchise.’ 
Beer, 425 U.S. at 141.” Texas v. Holder, 2012 WL 
3743676 *26.

As in South Carolina, in the absence of Section 
5, Texas' discriminatory photo ID requirement would 
have gone into effect, and the only way it could have 
been challenged was through costly and time- 
consuming litigation under Section 2 of the Voting 
Rights Act and the Constitution. The important role 
of Section 5 and its current needs are apparent.

4. Florida enacted HB 1355 in 2011 which, 
inter alia, reduced the number of days for early

51



voting from 14 days to eight days, required third- 
party voter registration organizations to submit 
voter registration applications within 48 hours of 
receipt instead of ten days and imposed a fine of $50 
for each failure to comply with the deadline, and 
imposed fines up to $1,000 for failing to comply with 
other provisions. Florida v. Unite States, 820 
F.Supp.2d 85, 88 (D.D.C. 2011); Florida v. United 
States, 2012 WL 3538298 *3 (D.D.C. 2012).

The proposed changes would have had a 
discriminatory impact on minorities in the five 
Florida counties covered by Section 5. In the 2008 
election, for example, 52% of African American 
voters in the five covered counties cast an early in- 
person ballot, compared to only 28% of white voters. 
Florida v. United States, 2012 WL 3538298 *18. And 
according to the League of Women Voters, black and 
Hispanic voters registered with third party groups at 
twice the rate of other voters. Voting Law’s Sunday 
Punch, Sarasota Herald-Tribune, June 15, 2011. 
available at http://www.heraldtribune.com/article/ 
20110615/OPINION/l 10619722/-l/news?title=voting- 
law-s-sunday-punch. As a result of passage of HB 
1355, it was reported that the League of Women 
Voters “has halted registration in Florida” because of 
the severe penalties imposed by the new law. Id.

Florida submitted the voting changes for 
judicial preclearance to the District Court for the 
District of Columbia. Florida v. United States, 2012 
W L 3538298 *3. Florida filed an amended complaint 
on October 11, 2011, to include a claim that Section 5 
as extended in 2006 was now unconstitutional. Id.

On May 31, 2012, the court in a related case, 
League of Women Voters u. Browning, 863 F.Supp.2d

52

http://www.heraldtribune.com/article/


1155, 1168 (N.D. Fla. 2012), issued a preliminary 
injunction against enforcement of the most 
controversial restrictions on third party voter 
registration activities. The court concluded that “the 
statute and rule impose burdensome record-keeping 
and updating requirements that serve little if any 
purpose, thus rendering them unconstitutional.” Id. 
at 1158.

On August 16, 2012, the three-judge court 
issued a decision objecting to the reduction in days 
for early voting because “the State has failed to 
satisfy its burden of proving that these changes will 
not have a retrogressive effect on minority voters.” 
Id *2. The state submitted a revised version of the 
third party voter registration provisions that 
responded to the objections made by the court in 
League of Women Voters, and on August 22, 2012, 
DOJ granted preclearance. Florida v. United States, 
CA No. 11-01428 (D.D.C.) (Doc. #162). The state also 
made changes to its early voting provisions, and on 
September 12, 2012, DOJ precleared 96 hours of 
early voting over an eight day period from 7:00 am to 
7:00 pm. Id. Doc. #161.

The important role played by Section 5 in the 
adoption of new voting practices and procedures in 
Florida is apparent. Because of Section 5, the state 
was required to restructure its early voting 
procedures so that they would not have a 
retrogressive effect on minority voters. It was also 
required to abandon its discriminatory restrictions 
on third party voter registration activities. As 
Florida demonstrates, Section 5 continues to play an 
important and indispensable role in guarding 
against racial discrimination in voting in the covered

53



jurisdictions.
The recent Section 5 objections involving 

Texas, South Carolina, and Florida have run the 
gamut from blatant discrimination to more subtle 
forms of minority voter suppression. But they all 
underscore the continuing need for Section 5.

CONCLUSION

Given the extensive record before it of 
continued discrimination in voting, Congress 
concluded with near unanimity that the extension of 
Section 5 of the Voting Rights Act was necessary "to 
ensure that the right of all citizens to vote, including 
the right to register to vote and cast meaningful 
votes, is preserved and protected as guaranteed by 
the Constitution." 120 Stat. 577, Sec. 2(a). The right 
to vote is “a fundamental right, because preservative 
of all rights.” Yick Wo u. Hopkins, 118 U.S. 356, 370 
(1886). The considered judgment of Congress that 
this fundamental right should continue to be 
protected by Section 5 is supported by the legislative 
record and is entitled to deference by this Court. The 
decision of the court of appeals should be affirmed.

Respectfully submitted,
M. Laughlin McDonald 

Counsel of Record 
Nancy G. Abudu 
American Civil Liberties 

Union Foundation 
230 Peachtree Street, NW 

Suite 1440
Atlanta, GA 30303-1227 
(404) 523-2721 
lmcdonald@aclu.org

54

mailto:lmcdonald@aclu.org


Steven R. Shapiro 
American Civil Liberties 

Union Foundation 
125 Broad Street 
New York, NY 10004 
(212) 549-2500
Kim Keenan 
Victor L. Goode 
NAACP
4805 Mt. Hope Drive 
Baltimore, MD 21215-3297 
(410) 580-5791
Arthur B. Spitzer 
American Civil Liberties 

Union of the Nation’s 
Capital

4301 Connecticut Avenue, 
NW, Suite 434 

Washington, D.C. 20008 
(202) 457-0800
David I. Schoen 
ACLU of Alabama 

Foundation
2800 Zelda Road, Suite 
100-6
Montgomery, AL 36106 
(334) 395-6611

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