Shelby County v. Holder Writ of Certiorari

    No. 12-96

3fn tfje
mpteme Court of tjje ®iuttet> >tate3

SHELBY COUNTY, ALABAMA, 
Petitioner,

ERIC H. HOLDER, JR., ATTORNEY GENERAL, ET AL.,
Respondents.

ON WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE HONORABLE CONGRESSMAN 
JOHN LEWIS AS AMICUS CURIAE IN SUPPORT OF 
RESPONDENTS AND INTERVENOR-RESPONDENTS

Aderson B. Francois 
H ow ard  U niversity  
School  of  La w  
Civil Rights Clinic 
2900 Van Ness Street NW 
Washington, D.C. 20008 
(202) 806-8065

Deborah N, Archer 
Counsel o f Record 

Tamara C. Belinfanti 
Erika L. Wood 

N ew  Y o r k  La w  School  
R acial  Justice  Project  

185 West Broadway 
New York, NY 10013 

(212) 431-2138 
Deborah.Archer@nyls.edu

mailto:Deborah.Archer@nyls.edu


I

TABLE OF CONTENTS

TABLE OF CONTENTS........................

TABLE OF CITED AUTHORITIES......

INTEREST OF AMICUS CURIAE............................ 1

SUMMARY OF ARGUMENT..................................... 2

ARGUMENT................................................................5

I. The History of Voting Rights In 
America Has Been One of Recurring 
Retrenchment and Reconstruction 
Rather than Uninterrupted and 
Continuous Progress.....................................5

A. Young Men and Women Risked
and Sometimes Gave Their Lives 
During The Civil Rights 
Movement to Secure the Right to 
Vote for All Americans......................... 5

B. A Century Before the 
Congressman Was Nearly 
Murdered for Trying to Exercise 
The Right to Vote, His Great- 
Great-Grandfather Freely Voted
During Reconstruction......................... 8

C. Congressman Lewis’ Public
Service Career Has Been Devoted 
to the Proposition that Democracy 
Is Not a State but an Act that



II

Requires Continued Vigilance to
Ensure a Fair and Free 
Democracy........................................... 13

II. Section 5 of the Voting Rights Act 
Remains Crucial to Protect the Rights 
of All Americans to Participate in Our 
Electoral System Free from Racial 
Discrimination.............................................. 16

A. The Substantial and Persistent
Electoral Discrimination in 
Georgia is Indicative of the 
Continuing Need for Section 5............. 17

B. Recent Increases in Minority
Voting Strength and the Election 
of Minority Candidates 
Engendered Discriminatory
Reponses in Covered Jurisdictions.... 21

C. Section 5 of the Voting Rights Act
Prevented Electoral
Discrimination Against Racial and 
Ethnic Minorities in the 2012 
Election................................................. 24

1. Section 5 Prevented
Discriminatory Voter
Identification Laws from 
Disenfranchising Minority
Voters in the 2012 Election...............................24

2. Section 5 Prevented the 
Reduction of Voting Hours in



I l l

the 2012 Election, Assuring 
Minority Voters Access to the 
Polls.............................................29

3. Section 5 Prevented the 
Discriminatory Dilution of 
Minority Voting Strength in 
the 2012 Election........................32

4. Section 2 of the Voting Rights 
Act Would Not Have Been as
Effective as Section 5 in 
Preventing
Disenfranchisement of
Minority Voters During the 
2012 Presidential Election.........35

CONCLUSION 38



TABLE OF CITED AUTHORITIES

Page(s)
Cases

Bartlett v. Strickland, 556 U.S. 1 (2009)................  16
Beer v. United States, 425 U.S. 130 (1976)............ 26
Florida v. United States, No. 11-1428, 2012 WL

3538298 (D.D.C. Aug. 16, 2012)..................... 30, 31
Giles v. Harris, 189 U.S. 475 (1903)........................ 13
Giles v. Teasley, 193 U.S. 146 (1904)....................... 13
Gomillion v. Lightfoot, 364 U.S. 339 (1960)...........  13
Guinn u. United States, 238 U.S. 347 (1915).........  13
Lane v. Wilson, 307 U.S. 268 (1939)........................ 13
League of United Latin Am. Citizens v. Perry, 548

U.S. 399 (2006).....................................................  22
Morales v. Handel, No. 1:08-CV-3172 (N.D. Ga. Oct.

27, 2008)..........................................................  19, 20
Myers v. Anderson, 238 U.S. 368 (1915).................  13
Neal v. Delaware, 103 U.S. 370 (1880).................... 13
Nixon v. Condon, 286 U.S. 73 (1932)....................... 13
Nixon v. Herndon, 273 U.S. 536 (1927)..................  13
Nw. Austin Mun. Util. Dist. No. One v. Holder, 557

U.S. 193 (2009)......................................................8
Perez v. Perry, 835 F.Supp.2d 209 (W.D. Tex. 2011),

vacated and remanded, 132 S.Ct. 934 (2012).....  34
Perez v. Texas, No. ll-CA-360, 2012 WL 4094933

(W.D. Tex. Feb. 28, 2012).....................................  34
Smith v. Allwright, 321 U.S. 649 (1944)................  13
South Carolina v. Katzenhach, 383 U.S. 301 (1966)

.................................................................... 35, 36, 38
South Carolina v. United States, No. 12-203, 2012 

WL 4814094 (D.D.C. Oct. 10, 2012)..............  28, 29



V

Terry v. Adams, 345 U.S 461 (1953)........................ 13
Texas v. Holder, No. 12-cv-128, 2012 WL 3743676

(D.D.C. Aug. 30, 2012).........................25, 26, 33, 34
Texas v. United States, No. 11-1303, 2012 WL 

3671924 (D.D.C. 2012), petition for cert, filed, 81 
USLW 3233 (U.S. Oct 19, 2012)(No. 12-496) 32, 33 

United States v. Cruikshank, 92 U.S. 542 (1876)... 13
United States v. Reese, 92 U.S. 214, 218 (1875).....  13
Williams v. Mississippi, 170 U.S. 213 (1898).... 10, 13
Statutes
Civil Rights Act of 1866, 14 Stat. 27 (1866)...........  12
Civil Rights Act of 1870 (The Enforcement Act), 16

Stat. 140 (1870).....................................................  12
Civil Rights Act of 1871, 17 Stat. 13 (1871)........... 12
Fla. Stat. § 101.657(d) (2010)..................................30
Fla. Stat. § 101.657(d) (2011)..................................30
S.C. Code Ann. § 7-13-710 (D)(1)(b) (2011)............ 27
S.C. Code Ann. § 7-13-710(A) (2011)........................27
U.S. Const, pmbl...........................................................3
Voter Empowerment Act of 2013, H.R. 12, 113th

Cong. (2013)............................................................ 14
Voting Rights Act of 1965, Pub. L. No. 89-110, 79

Stat. 445 (codified at 42 U.S.C. § 1973 et seq.)........2
Voting Rights of Homeless Citizens Act of 1997, H.R. 

74, 105th Cong. (1997)..........................................  14
Other Authorities
152 Cong. Rec. H5164 (daily ed. July 13, 2006)

(statement of Rep. Lewis)...................................... 15
Alexander Keyssar, The Right to Vote: The Contested 

History of Democracy in the United States (2d ed.
2009)................................................................. 11, 12

Brief for Cato Institute as Amicus Curiae Supporting 
Petitioner................................................................21



VI

Brief for Georgia Governor Sonny Perdue as Amicus 
Curiae Supporting Appellants, Nw. Austin Mun. 
Util. Dist. No. One v. Holder, 557 U.S. 193 (2009)
................................................................................ 17

Brief for Petitioner..................................................... 3
Brief for the Hon. Congressman John Lewis as 

Amicus Curiae Supporting Appellant, Nw. Austin 
Mun. Util. Dist. No. One v. Holder, 557 U.S. 193
(2009)........................................................................ 9

Cong. Globe, 42nd Cong. 1st Sess. 389-92 (1871)... 11 
Congressman John Lewis, 40th Anniversary of the

Voting Rights Act (July 28, 2005)........................ 14
Finding Your Roots: John Lewis and Cory

Booker (PBS 2012).............................................. 3, 9
Gabriel J. Chin & Randy Wagner, The Tyranny of 

the Minority: Jim Crow and the Counter-
Majoritarian Difficulty, 43 Harv. C.R.-C.L. L. Rev.
65 (2008).................................................................  10

H. Rep. No. 109-478 (2006)..................................  4, 17
Howard Zinn, A People’s History of the United States

(5th ed. 2003)......................................................... 10
John Lewis, Walking with the Wind: A Memoir of the

Movement (1998).........................................  2, 5, 6, 7
Juan Williams, The 1964 Civil Rights Act—Then and

Now, 31 Human Rights 6 (2004)........................... 23
Letter from Loretta King, Acting Assistant Attorney 

Gen., U.S. Dept, of Justice, to the Hon. Thurbert 
E. Baker, Attorney Gen. of Ga. (May 29, 2009).. 19, 
20

Letter from Thomas E. Perez, Assistant Attorney 
Gen., U.S. Dep’t of Justice, to C. Havird Jones, Jr., 
Assistant Deputy Attorney Gen. of S.C. (Dec. 23, 
2011)................................................................. 27, 28



Vll

Letter from Thomas E. Perez, Assistant Attorney 
Gen., U.S. Dep’t of Justice, to Keith Ingram, Dir. 
of Elections, Office of the Tex. Sec’y of State (Mar.
12, 2012)..........................................................  25, 26

Letter from Wan J. Kim, Assistant Attorney Gen., 
U.S. Dep’t of Justice, to Tommy Coleman, Esq.
(Sept. 12, 2006).....................................................  18

Michael C. Herron & Daniel E. Smith, Early Voting 
in Florida in the Aftermath of House Bill 1355
(Working Paper, Jan. 10, 2013)..............  30, 31, 32

President Lyndon B. Johnson, Special Message to 
the Congress: The American Promise (Mar. 15,
1965).........................................................................8

President Richard Nixon, Address to the Nation on 
Equal Educational Opportunities and School
Busing (Mar. 16, 1972).........................................  23

President Ronald Reagan, Remarks on Signing the 
Voting Rights Act Amendments of 1982 (June 29,
1982)..........................................................................2

Press Release, John Lewis, On Anniversary of 
Bloody Sunday, Rep. John Lewis Cites Current
Voting Rights Struggle (Mar. 8, 2012)..................14

R54, 119th Gen. Assemb., Reg. Sess. (S.C. 2011-
2012)........................................................................27

S. 14, 2011 Leg., 79th Sess. (Tex. 2011)........  25
Taylor Branch, At Canaan’s Edge: America in the

King Years 1965-1968 (2006).................................. 8
To Examine the Impact and Effectiveness of the 

Voting Rights Act: Hearing Before the Subcomm. 
on the Constitution of the Comm, on the Judiciary 
H.R., 109th Cong. 58 (2005)................................. 36





1

INTEREST OF AMICUS CURIAE

Amicus Curiae, Congressman John Lewis, is 
the United States Representative of Georgia’s Fifth 
Congressional District, which includes the entire city 
of Atlanta, Georgia and parts of Fulton, DeKalb and 
Clayton counties.1 He has served in this capacity 
since January 1987. Congressman Lewis has a 
continued interest in the development and protection 
of laws that guard against racial discrimination and 
promote social and political equality for all 
Americans.

Today, political historians and constitutional 
scholars acknowledge that the main impetus for 
President Lyndon Johnson submitting the Voting 
Rights Act of 1965 to Congress on March 15, 1965, 
and its passage by both Houses of Congress a mere 
five months later, was the brutal attacks on 
nonviolent civil rights marchers on the Edmund 
Pettus Bridge in Selma, Alabama. Congressman 
Lewis was one of the marchers on that day and, like 
many of his fellow nonviolent civil rights 
demonstrators, was beaten with bullwhips, choked 
with toxic tear gas, and nearly trampled by horses 
simply because he wished to exercise his 
constitutional right to vote. In submitting this brief, 
Congressman Lewis hopes to attest personally to the

1 Pursuant to Supreme Court Rule 37, this brief is filed 
with the written consent of all parties. The parties’ consent 
letters are on file with the Court. This brief has not been 
authored, either in whole or in part, by counsel for any party, 
and no person or entity, other than amicus curiae or their 
counsel has made a monetary contribution to the preparation 
or submission of this brief.



2

high price many paid for the enactment of the Voting 
Rights Act and the still higher cost we might yet 
bear if we prematurely discard one of the most vital 
tools of our democracy.

SUMMARY OF ARGUMENT

Fifty years ago, “at the height of the civil 
rights movement, when America itself felt as if it 
might burst at the seams,” Congressman John Lewis 
and young men and women of his generation put 
their bodies in the path of armed troopers mounted 
on horses and club-wielding mobs yelling for murder, 
in order to secure the right to vote for all Americans. 
John Lewis, Walking with the Wind: A Memoir of the 
Movement xvii (1998). Years and months of protests 
culminated in a bloody Sunday afternoon in March 
1965 when Alabama state troopers charged through 
a line of peaceful marchers led by Congressman 
Lewis and fractured his skull with a club. The 
Voting Rights Act of 1965 was the result of, and 
remains a testament to, their sacrifice. Voting 
Rights Act of 1965, Pub. L. No. 89-110, 79 Stat. 445 
(codified at 42 U.S.C. § 1973 et seq.) (VRA or “the 
Act”).

No statutory enactment has been more 
important in combating minority
disenfranchisement and advancing voting rights for 
all Americans than the VRA. If, as the late President 
Ronald Reagan once declared, the right to vote is 
“the crown jewel of American liberties,” President 
Ronald Reagan, Remarks on Signing the Voting 
Rights Act Amendments of 1982 (June 29, 1982), the 
VRA made this crown jewel not just the prized



3

possession of a fortunate few but the birthright of all 
Americans. The VRA in general, and the 
preclearance provisions of Section 5 in particular, 
helped break the back of Jim Crow segregation, 
made a place at the table of civic and political life for 
millions of Americans, and moved us closer to the 
goal of a “more perfect union.” U.S. Const, pmbl.

And yet, as vital to American democracy as 
the VRA is, it has always endured intense criticism. 
Through the years, covered jurisdictions insisted 
with great sincerity, as Shelby County does today, 
that the Act’s preclearance provisions were no longer 
needed, maintaining paradoxically on the one hand 
that the Act is an unwarranted abrogation of state 
authority by the federal government, and on the 
other hand that the Act has succeeded in doing so 
much good that covered jurisdictions should be 
relieved from the “burdens” of preclearance. Brief 
for Petitioner at 23-28.

At the heart of the argument against Section 5 
of the VRA lies the unfounded belief that our history 
of voting rights has been one of consistent progress, 
that we have now reached the point where equal 
voting rights are guaranteed to all Americans, and 
that eliminating Section 5 as a tool of federal 
enforcement will not cause us to slide back. Id. at 
19. But the fact is, a century before Congressman 
Lewis was nearly murdered on the Edmund Pettus 
Bridge for claiming the right to vote, his great-great­
grandfather was among the first generation of 
former slaves to vote in Alabama. See generally 
Finding Your Roots: John Lewis and Cory
Booker (PBS 2012). The fact that the Congressman



4

had to fight to regain a right his former slave 
ancestors had exercised is living proof of the danger 
of this claim of ever-forward progress.

Today, our electoral portrait remains stained 
with the blight of racial discrimination. In 2006, 
after careful review of a record in excess of 15,000 
pages, Congress acted on the continuing need for the 
VRA. Congress observed that mechanisms of 
minority voter suppression continue to be utilized in 
covered jurisdictions. H. Rep. No. 109-478, at 2 
(2006). Unlike the blatant voter suppression 
mechanisms employed in the past, today’s 
mechanisms manifest themselves more subtly and 
consist of a hazardous mix of old and new tactics. Id. 
at 21. What is clear, however, is that these 
mechanisms continue to suppress, dilute, and 
infringe upon minorities’ constitutional right to vote. 
Id. Petitioner’s misguided attempt to cast doubt on 
the constitutionality of Section 5 is simply not 
supported by the extensive record of electoral 
discrimination in covered jurisdictions before 
Congress in 2006, nor that which the country saw 
leading up to the 2012 election.



ARGUMENT

5

I. The History of Voting Rights In America 
Has Been One of Recurring 
Retrenchment and Reconstruction 
Rather than Uninterrupted and 
Continuous Progress.

A. Young Men and Women Risked and 
Sometimes Gave Their Lives 
During The Civil Rights Movement 
to Secure the Right to Vote for All 
Americans.

Though often neglected in the usual narrative 
of judicial opinions, the story of the VRA is the story 
of young men and women of all races, economic 
circumstances, and religious backgrounds who 
risked their lives to create a non-violent social 
movement to overturn segregation in the Jim Crow 
South, and to ensure political participation for all 
throughout the United States. The years, days, and 
moments of the movement were made of boycotts, 
sit-ins, freedom rides, jail marches, fire hoses, 
literacy tests, billy clubs, poll taxes, tear gas, 
burning crosses, lynchings in the night, church 
bombings, and drive-by murders. Lewis, at 239-47.

In June 1964, the Student Non-Violent 
Coordinating Committee (SNCC) began a voting 
campaign in Mississippi, where due to the state’s 
Jim Crow voting practices only 5% of eligible African 
Americans were registered to vote. Id. at 241-62. 
The aim of what came to be known as “Freedom 
Summer” was to integrate the Mississippi



6

Delegation of the 1964 Democratic National 
Convention by educating and organizing African- 
American voters across the state, and to solicit their 
support for the Mississippi Freedom Democratic 
Party. Id.

As chairman of SNCC, Congressman Lewis 
helped plan and mobilize Freedom Summer. Years 
prior, he worked to register voters in Selma, 
Alabama. At that time in Alabama, only 1% of 
voting-age African Americans was registered to vote, 
state troopers used cattle prods to corral protestors, 
and crosses were burned in sixty-four of the state’s 
eighty-two counties. Id. at 229-31, 233-37. In 
Mississippi, by the end of Freedom Summer, 
activists had endured more than a thousand arrests, 
thirty-five shootings, more than thirty church 
burnings, and just as many bombings. Id. at 274.

On March 7, 1965, nearly 600 people, 
including women and children wearing their Sunday 
church outfits, gathered at Brown’s Chapel African 
Methodist Episcopal Church to march fifty-four 
miles from Selma to Montgomery to protest the 
killing of one of their own: Jimmy Lee Jackson, a 
twenty-six year old Army veteran and voting rights 
worker shot by an Alabama state trooper as he tried 
to protect his mother during a voting rights protest. 
Id. at 327-28. With Congressman Lewis leading the 
way, they marched “two abreast, in a pair of lines 
that stretched for several blocks . . . .  At the far 
end, bringing up the rear, rolled four slow-moving 
ambulances.” Id. at 337. The march was peaceful, 
“somber and subdued, almost like a funereal 
procession.” Id. at 338. “There were no big names



7

up front, no celebrities. This was just plain folks 
moving through the streets of Selma.” Id.

And then, the marchers reached the Edmund 
Pettus Bridge, carrying U.S. Highway 80 across the 
Alabama River, where on the other side waited for 
them “a sea of blue-helmeted, blue-uniformed 
Alabama state troopers” backed by “several dozen 
more armed men . . . some on horseback . . . many 
carrying clubs the size of baseball bats.” Id. at 338- 
39. As the marchers crested the top of the bridge, 
the trooper in charge ordered them to disperse. Id. 
at 339. When they knelt to pray, troopers and 
deputized citizens charged and, with the cries of 
rebel yells and “Get 'em/ Get the niggersl”, swept 
forward “like a human wave, a blur of shirts and 
billy clubs and bullwhips” Id. at 340.

Without a word, one trooper swung his club 
against the left side of Congressman Lewis’ head, 
fracturing his skull. Id. A cloud of tear-gas 
enveloped the marchers. Bleeding badly and barely 
hanging onto consciousness, Congressman Lewis 
tried to stand up from the pavement only to find 
himself surrounded by women and children weeping, 
vomiting while “men on horses [moved] in all 
directions, purposely riding over the top of fallen 
people, bringing the animals’ hooves down on 
shoulders, stomachs, and legs.” Id. at 341.

In the late afternoon, hours after the attack 
had begun, “troopers, possemen, and sheriffs 
deputies pursued the marchers over the mile back to 
the neighborhood around Brown Chapel, where they 
attacked stragglers in a frenzy,” taunting those who



8

had taken refuge in the church “for the negroes to 
come out.” Taylor Branch, At Canaan’s Edge: 
America in the King Years 1965-1968 53 (2006).

That evening, just past 9:30 p.m., ABC 
Television cut into its Sunday night movie -  a 
premiere broadcast of Stanley Kramer’s Judgment at 
Nuremberg, a film about Nazi racism — with “a 
special bulletin,” showing to the entire country 
fifteen minutes of film footage of the attack on the 
Edmund Pettus Bridge. Id. at 55.

Eight days later, President Johnson addressed 
the American people: “I speak tonight for the dignity 
of man and for the destiny of democracy. At times, 
history and fate meet at a single time, in a single 
place to shape a turning point in man’s unending 
search for freedom . . . .  So it was last week in 
Selma.” President Lyndon B. Johnson, Special 
Message to the Congress: The American Promise 
(Mar. 15, 1965). The President ended by calling on 
Congress to enact the Voting Rights Act, which it did 
on August 6, 1965.

B. A  Century Before the Congressman 
Was Nearly Murdered for Trying to 
Exercise The Right to Vote, His 
Great-Great-Grandfather Freely 
Voted During Reconstruction.

In 2009, Congressman Lewis participated as 
amicus curiae when this Court again considered the 
constitutionality of Section 5 in Northwest Austin 
Municipal Utility District Number One v. Holder. 
Brief for the Hon. Congressman John Lewis as



9

Amicus Curiae Supporting Appellant, Nw. Austin 
Mun. Util. Dist. No. One v. Holder, 557 U.S. 193 
(2009). He explained that “the danger of accepting 
the argument that we have made so much progress 
that we no longer need the very tool that made all 
that progress possible is that we will forget one of 
the most important lessons history has to teach us, 
namely: that revolutions and advances in popular 
rights and democratic rights can be reversed; that 
history can move backward . . . Id. at 10-11. At 
the time, unbeknownst to Congressman Lewis, his 
family history was proof “that enormous gains can be 
lost and jeopardized, eroded, or diluted, and 
abridged in spite of the enormous cost that those 
advances have made.” Id. at 11.

At the conclusion of the Civil War, a century 
prior to Bloody Sunday and the Edmund Pettus 
Bridge attack, Tobias and Elizabeth Carter, 
Congressman Lewis’ great-great-grandparents, 
exercised the full rights and privileges of citizenship. 
Both former slaves, they married soon after the 
Emancipation Proclamation, bought land and settled 
in rural Alabama. Congressman Lewis’ great-great- 
grandfather was part of the first generation of 
former slaves to register and vote in Alabama. See 
generally Finding Your Roots: John Lewis and Cory 
Booker.

In many ways, the life of full citizenship 
Congressman Lewis’ great-great-grandfather led 
during Reconstruction was unique. For a short 
while immediately following their emancipation, 
African Americans in large numbers throughout the



10

South were able to participate in the American 
political system.

Immediately after Emancipation, African 
Americans in Alabama “began acting like 
independent men and women.” Howard Zinn, A 
People’s History of the United States 195 (5th ed. 
2003). Former slaves, who had lived for generations 
under the control of white slave masters, who were 
not permitted to learn to read, who could not control 
the destiny of their own families and who certainly 
could not vote, were beginning to participate in civic 
life in unprecedented ways. In 1868, 700,000 
African Americans, mostly freed slaves, voted for the 
first time in Ulysses Grant’s presidential election. 
Id. at 194. Newly freed African-American men were 
elected to state legislatures in former Confederate 
States. In South Carolina, African Americans were 
the majority in the lower house. Id. at 195. By 
1880, “African-Americans were an absolute majority 
in Louisiana, Mississippi, and South Carolina, and 
were over 40% of the population in Alabama, 
Florida, Georgia and Virginia.” Gabriel J. Chin & 
Randy Wagner, The Tyranny of the Minority: Jim 
Crow and the Counter-Majoritarian Difficulty, 43 
Harv. C.R.-C.L. L. Rev. 65, 66 (2008). By 1898, 
Mississippi had 190,000 African-American voters 
and only 69,000 white voters. Williams v. 
Mississippi, 170 U.S. 213, 215 (1898). At the federal 
level, in 1869, Hiram Rhoades Revels and Blanche 
Bruce, two African Americans, one a former slave, 
were elected to the United States Senate, along with 
twenty African-American Congressmen. Zinn, at 
195.



11

Congress passed the Fifteenth Amendment on 
February 26, 1869, enfranchising more than a 
million African-American men who had been slaves 
only a decade earlier. Alexander Keyssar, The Right 
to Vote: The Contested History of Democracy in the 
United States 80, 82 (2d ed. 2009). With the 
ratification of the Fifteenth Amendment, the words 
“right to vote” were written into the U.S. 
Constitution for the first time, “announcing a new, 
active role for the federal government in defining 
democracy.” Id. at 82-83.

This progress was not the natural trajectory of 
emancipation, nor was it coincidental; it was the 
direct result of the federal government’s presence 
throughout the southern United States. Once that 
federal presence was removed, the enormous 
political, social and economic progress was wiped 
away and would not be regained for almost a 
century.

By late 1870, all the former Confederate 
states had been readmitted to the Union and most 
were controlled by the Republican Party, due 
primarily to the support of African-American voters. 
The heavily disputed presidential election of 1876 
ended in a compromise that resulted in troops being 
withdrawn from the South in 1877, signifying the 
formal end of Reconstruction. During floor debates 
on the Civil Rights Act of 1871, African-American 
representative Robert B. Elliot reminded his fellow 
legislators that, “the declared purpose [of the 
Democratic party of the South is] to defeat the ballot 
with the bullet and other coercive means . . . ” 
Cong. Globe, 42nd Cong. 1st Sess. 389-92 (1871).



12

His prediction came to pass. Democrats in the South 
convened state constitutional conventions with the 
explicit purpose to disenfranchise African 
Americans. Keyssar at 84-85. In the period after 
1878, in a deliberate effort to disenfranchise the 
potentially powerful voting bloc of former slaves, 
southern states like Alabama, Georgia, Mississippi 
and Louisiana enacted literacy tests, grandfather 
clauses, poll taxes and other unfair voter 
registration practices. Id. at 89-91. By 1880, white 
Democrats in the South had regained control over 
state and local governments and the number of 
southern African-American legislators fell
dramatically. Id. at 86.

Thus, it is inaccurate to say, as has sometimes 
been suggested when recounting the history of 
voting rights in this country, that after a century of 
congressional inaction and failure, the VRA served 
as the starting point of effective federal participation 
to enforce the Fifteenth Amendment. Rather, the 
narrative of voting rights, as evidenced by the story 
of Congressman Lewis’ own ancestors, is one of a 
cycle of retrenchment and reconstruction. The
approximately twenty-year period between 1866 and 
1880 was a brief moment of reform. Among other 
things, the Civil Rights Act of 1866, 14 Stat. 27 
(1866), the Civil Rights Act of 1870 (The 
Enforcement Act), 16 Stat. 140 (1870), and Civil 
Rights Act of 1871, 17 Stat. 13 (1871), established 
robust federal enforcement of constitutional rights 
for all Americans by establishing civil and criminal 
penalties for denying African Americans the right to 
vote and providing for federal troops to patrol polls 
in the South.



13

If, by 1880, federal enforcement of voting 
rights began a period of relative retrenchment, with 
all due respect, it must be acknowledged that, even 
while striking down some of the most blatant forms 
of voter disenfranchisement,2 this Court’s expansive 
reading of state sovereignty also contributed to a 
weakening of federal involvement in voting rights 
enforcement, the end of Reconstruction, and the 
political disempowerment of African Americans. See 
Giles v. Teasley, 193 U.S. 146 (1904); Giles v. Harris, 
189 U.S. 475 (1903); Williams v. Mississippi, 170 
U.S. 213 (1889); United States v. Cruikshank, 92 
U.S. 542 (1876); and United States v. Reese, 92 U.S. 
214 (1875).

C. Congressman Lewis’ Public Service 
Career Has Been Devoted to the 
Proposition that Democracy Is Not 
a State but an Act that Requires 
Continued Vigilance to Ensure a 
Fair and Free Democracy.

This brief history is not to simply revisit a 
past we all know too well, but to illustrate that 
“[d]emocracy is not a state. It is an act. It requires 
the continued vigilance of us all to ensure that we 
continue to create an ever more fair, more free 
democracy.” Press Release, John Lewis, On

2 See, e.g., Gomillion v. Lightfoot, 364 U.S. 339 (1960); 
Terry v. Adams, 345 U.S 461 (1953); Smith v. Allwright, 321 
U.S. 649 (1944); Nixon v. Condon, 286 U.S. 73 (1932); Lane v. 
Wilson, 307 U.S. 268 (1939); Nixon v. Herndon, 273 U.S. 536 
(1927); Myers v. Anderson, 238 U.S. 368 (1915); Guinn v. 
United States, 238 U.S. 347 (1915); Neal v. Delaware, 103 U.S. 
370 (1880).



14

Anniversary of Bloody Sunday, Rep. John Lewis 
Cites Current Voting Rights Struggle (Mar. 8, 2012). 
Since first being elected to the House of 
Representatives in 1986, Congressman Lewis has 
dedicated much of his twenty-seven-year political 
career to the preservation of voting rights for all 
Americans. Among other things, he has introduced 
bills designed to expand access to the polls, such as 
the Voter Empowerment Act of 2013, H.R. 12, 113th 
Cong. (2013) and the Voting Rights of Homeless 
Citizens Act of 1997, H.R. 74, 105th Cong. (1997). 
He has also introduced and co-sponsored many 
House resolutions to commemorate the events and 
figures of the Civil Rights movement and to draw 
attention to threats against voting rights. He has 
done this because he believes that “[t]he vote is the 
most powerful, nonviolent tool that our citizens have 
in a democratic society, and [that] 
nothing . . . should interfere with the right of every 
citizen to vote and have their vote count.” 
Congressman John Lewis, 40th Anniversary of the 
Voting Rights Act (July 28, 2005).

When Congress reauthorized Section 5 in 
1970, 1975 and 1982, Congressman Lewis was not 
yet elected to federal office. But during the 2006 
reauthorization hearings, he defended the landmark 
legislation. During the House debate, Congressman 
Lewis implored his colleagues to reject all four 
proposed amendments to Section 5, saying, in part:

Yes, we have made some progress. We
have come a distance. We are no longer
met with bullwhips, fire hoses, and
violence when we attempt to register



15

and vote. But the sad fact is, the sad 
truth is discrimination still exists, and 
that is why we still need the Voting 
Rights Act. And we must not go back to 
the dark [past].

We cannot separate the debate today 
from our history and the past we have 
traveled. When we marched from 
Selma to Montgomery in 1965, it was 
dangerous. It was a matter of life and 
death. I was beaten, I had a concussion 
at the bridge. I almost died. I gave a 
little blood, but some of my colleagues 
gave their very lives.

152 Cong. Rec. H5164 (daily ed. July 13, 2006) 
(statement of Rep. Lewis).

Today, 150 years after his great-great­
grandfather cast one of the first African-American 
votes in our country, and nearly fifty years after his 
march across the Edmund Pettus Bridge, 
Congressman Lewis continues his life-long fight to 
ensure that all American citizens are able to exercise 
their right to vote, regardless of their race. The 
Voting Rights Act is as relevant and necessary today 
as it was upon its passage nearly fifty years ago.



16

II. Section 5 of the Voting Rights Act 
Remains Crucial to Protect the Rights of 
All Americans to Participate in Our 
Electoral System Free from Racial 
Discrimination.

Petitioner and its amici contend that Congress 
erred in its determination that Section 5 of the VRA 
is still necessary in light of the progress that has 
been made. The crux of their contention rests on the 
following conclusion: Section 5 of the VRA works. 
However, the VRA’s achievements do not render it 
irrelevant; to the contrary, the Act’s recent 
achievements illustrate its continuing relevance in a 
society where voting discrimination remains very 
much a reality.

The VRA’s success is remarkable and 
undeniable. Indeed, its enactment was a turning 
point in “the struggle to end discriminatory 
treatment of minorities who seek to exercise one of 
the most fundamental rights of our citizens: the
right to vote.” Bartlett v. Strickland, 556 U.S. 1, 10 
(2009). In the nearly five decades since the Act’s 
passage, minority voters have garnered increasing 
political power. While considerable progress has 
been made, the VRA’s goal of bringing to life the 
promise of the Fifteenth Amendment has not been 
fully realized. Barriers to equal political 
participation persist; minority citizens are still 
denied access to the polls and have had to struggle 
through increasingly ingenious discriminatory 
roadblocks. That the Act has begun to cure the 
malaise of voting discrimination does not render its 
most powerful tonic superfluous. The acknowledged



17

success of the VRA is not proof that Section 5’s 
usefulness has expired. In fact, it is evidence that 
Section 5’s powerful medicine is working and needs 
to continue.

A. The Substantial and Persistent 
Electoral Discrimination in 
Georgia is Indicative of the 
Continuing Need for Section 5.

Although there are no more literacy tests and 
grandfather clauses, today we see a new generation 
of tools being employed across the country: 
discriminatory redistricting and annexation plans, 
voter identification and verification laws, at-large 
election schemes, unexpected re-registration 
requirements, sudden polling place changes, and the 
last minute addition of new rules for candidate 
qualification. All of these methods are used to 
discriminate against minorities and have led to over 
700 Section 5 preclearance objections by the United 
States Department of Justice (DOJ) between 1982 
and 2006. H.R. Rep. No. 109-478, at 22 (2006).

Since Section 5’s re authorization in 1982, 
Congressman Lewis’ state of Georgia has received an 
alarming ninety-one preclearance objection letters 
from the DOJ, id. at 37, even though the state’s 
Governor insists that Georgia should be relieved of 
Section 5’s preclearance provisions, Brief for Georgia 
Governor Sonny Perdue as Amicus Curiae 
Supporting Appellants, Nw. Austin Mun. Util. Dist. 
No. One v. Holder, 557 U.S. 193 (2009). Here are a 
few examples:



18

In 2002, a state court judge sitting by 
designation as Superintendent of Elections of 
Randolph County, Georgia, issued an opinion that 
Henry Cook, an African-American member of the 
Randolph County Board of Education was a resident 
of District 5, the majority African-American district 
from which he had been elected. Letter from Wan J. 
Kim, Assistant Attorney Gen., U.S. Dep’t of Justice, 
to Tommy Coleman, Esq. (Sept. 12, 2006). In 2006, 
however, the County Board of Registrars, all of 
whose members were white, removed Cook from 
District 5 and reassigned him to District 4, a 
majority white district. Id. Given the history of 
racial bloc voting in Randolph County, Cook would 
certainly have been defeated had he run for 
reelection in District 4. Id. Randolph County 
refused to submit Cook’s reassignment for 
preclearance under Section 5, even though it 
constituted a change in voting. Id. The Board of 
Registrars then submitted the change for 
preclearance, and the DOJ objected. Id. The DOJ 
cited the absence of any intervening change in fact 
or law since the 2002 decision of the state court 
judge, and ruled that in light of the history of 
discrimination in voting in Randolph County, the 
County failed to sustain its burden of showing that 
the submitted change lacked a discriminatory 
purpose. Id.

In March 2007, Georgia instituted a data 
verification system for its voter registration database 
that sought to match information provided by a voter 
registration applicant with the information 
maintained by the state’s Department of Driver 
Services and the Social Security Administration.



19

Letter from Loretta King, Acting Assistant Attorney 
Gen., U.S. Dep’t of Justice, to the Hon. Thurbert E. 
Baker, Attorney Gen. of Ga. (May 29, 2009) (“King 
Letter”). If the applicant’s information did not 
match, the applicant would be “flagged” and would 
not be registered to vote unless and until the 
applicant provided additional documentation to 
prove his citizenship status. Id. Under the previous 
system, applicants seeking to register to vote only 
had to swear or affirm on the voter registration form 
that the information provided, including their 
citizenship status, was true. Id. Georgia claimed 
that the new verification system was part of its 
efforts to implement the requirements of the Help 
America Vote Act, 42 U.S.C. § 15301 et seq. Id. 
Although Georgia is a covered jurisdiction under 
Section 5, it did not seek preclearance before 
implementing this new system. Morales v. Handel, 
No. 1:08-CV-3172, at 22 (N.D. Ga. Oct. 27, 2008).

In September 2008, Jose Morales, a 
naturalized U.S. citizen and a Georgia resident, 
applied to register to vote. Id. at 2-3. Soon after, 
Morales received a letter from the county registrar 
informing him that he was required to provide 
documentation verifying his citizenship before being 
registered to vote. Id. at 3. That October, Morales 
filed suit in the U.S. District Court for the Northern 
District of Georgia seeking a temporary restraining 
order and a preliminary injunction against the 
Georgia Secretary of State under Section 5 of the 
VRA. Id. at 3-4. A three-judge panel found that 
Georgia violated Section 5 by not seeking 
preclearance for the new verification procedure. Id. 
at 22. Because there was an “imminent” general



20

federal election, the court issued a preliminary 
injunction enjoining the secretary of state to 
undertake remedial action “unless and until 
preclearance is obtained under Section 5.” Id. at 23. 
The court explained that the injunction addressed 
the state’s “compelling interest in complying with 
Section 5’s mandate to ensure that no eligible voter 
is denied the right to vote for failure to comply with 
an unprecleared voting practice.” Id. at 26.

In October 2008, prompted by the lawsuit, 
Georgia finally submitted the new verification 
process to the DOJ for preclearance. The DOJ 
objected to the submission, finding that the system 
was “seriously flawed” and subjected a 
disproportionate number of African-American, 
Asian, and Hispanic voters to additional and 
erroneous burdens on the right to register to vote. 
King Letter at 4. The DOJ noted that because 
Georgia had implemented the new changes in 
violation of Section 5, there was data reflecting the 
actual results of the state’s verification process. This 
data revealed that the system was inaccurate, 
resulting in “thousands of citizens who are, in fact, 
eligible to vote under Georgia law” being improperly 
flagged. Id. at 3. Moreover, the impact of these 
errors fell disproportionately on minority voters. 
More than 60% more African-American applicants 
were flagged than whites; Hispanic and Asian 
applicants were more than twice as likely to be 
flagged as white applicants. Id. at 4.

The long journey of Georgia’s discriminatory 
citizenship verification system demonstrates Section 
5’s continued necessity in two important ways.



21

First, Georgia implemented its new system ignoring 
Section 5’s preclearance requirement, providing clear 
data that illustrate the policy’s actual discriminatory 
impact. Second, the case demonstrates how Section 
5 provides swift legal recourse even when a state 
tries to avoid the preclearance process, giving courts 
the authority to quickly enjoin the state from 
implementing the law and to continue that enjoinder 
until the state complies with Section 5. Without 
Section 5, Georgia’s flawed system would have 
continued to wrongly flag minority voter registration 
applications just weeks before an election.

B. Recent Increases in Minority 
Voting Strength and the Election of 
Minority Candidates Engendered 
Discriminatory Reponses in 
Covered Jurisdictions.

The Voting Rights Act played a direct and 
pivotal role in the election and reelection of our 
country’s first African-American President. The 
election of Barack Obama in 2008, and his recent 
reelection in 2012, showcased both the progress the 
VRA helped to usher in, as well as the continuing 
animosity towards minority participation in our 
electoral process, especially in jurisdictions covered 
under Section 5. Amici in support of Petitioner 
argue that President Obama’s election proves that 
Section 5 is no longer necessary. Brief for Cato 
Institute as Amicus Curiae Supporting Petitioner at 
10. While there is no doubt that the gains in 
minority political participation can be largely 
attributed to the VRA, the legislative response in 
many covered jurisdictions to the 2008 election only



22

lend further support to Congress’ conclusion in 2006 
that Section 5 remains vital.

In response to more minority voters 
participating in the political process, six of the nine 
states fully covered under Section 5 have passed 
legislation in the last two years designed to restrict 
voting rights and access to the polls. These laws 
harken back to the days of Jim Crow, and remind us 
all that we have not left the past behind.

When assessing electoral changes, the court 
must consider the “totality of the circumstances.” 
League of United Latin Am. Citizens v. Perry, 548 
U.S. 399, 401 (2006). This includes a state’s history 
of voting-related discrimination, the extent to which 
voting is racially polarized, and the extent to which 
the state has used voting practices or procedures 
that tend to enhance the opportunity for 
discrimination against the minority group. Id. We 
cannot ignore that the recent changes to voting 
practices and procedures were enacted against a 
backdrop of increasing racial animosity brought 
about by the election of the first African-American 
President. Following President Obama’s election, 
covered jurisdictions were littered with billboards, 
signs, t-shirts, and bumpers stickers with messages 
such as “I do not support the nigger in the white 
house” and “don’t renig [sic] in 2012.” Two 
individuals were removed from the Republican 
National Convention after throwing nuts at an 
African American camerawoman and shouting, 
“[T]his is how we feed the animals.” Empty chairs, 
symbolizing President Obama, were “lynched” in 
Texas and Virginia.



23

Candidates and pundits alike invoked the 
image of poor African Americans and Hispanics as 
inhibiting America’s economic recovery, including 
Newt Gingrich branding President Obama as “the 
greatest food stamp president in history.” This 
racially-charged, political rhetoric appeals to those 
white voters who are primed and listening for subtle 
racial calls to action. This is “dog whistle” politics, 
plain and simple.

The country has seen this interplay before. As 
racial animosity rises, some elected officials respond 
by appealing to racist sentiment. When overt racism 
permeated society, George Wallace and Barry 
Goldwater resurrected the double entendre of 
“states’ rights” to oppose the integration of 
Alabama’s schools and the Civil Rights Act of 1964, 
disguising their racism as federalism. See Juan 
Williams, The 1964 Civil Rights Act—Then and 
Now, 31 Human Rights 6 (2004). President Nixon 
appealed to white racists and anti-civil rights voters 
by referencing “busing” and “states’ rights.” See 
President Richard Nixon, Address to the Nation on 
Equal Educational Opportunities and School Busing 
(Mar. 16, 1972).

The continued use of racial appeals in political 
campaigns is just one additional piece of evidence 
that race impacts our political process, making it 
more difficult for minority candidates to be elected 
and for minority voters to have their votes count.



24

C. Section 5 of the Voting Rights Act 
Prevented Electoral Discrimination 
Against Racial and Ethnic 
Minorities in the 2012 Election.

Leading up to the 2012 election, several 
Section 5 covered jurisdictions attempted to 
implement new policies and practices that had 
discriminatory effects on minority voters, impeding 
their ability to register, vote, and elect 
representatives of their choice. In several states, 
Section 5 and its preclearance process served their 
purpose: to prevent the illegal disenfranchisement of 
hundreds of thousands of minority voters.

The unprecedented number of minority voters 
who participated in the 2012 election has garnered 
much attention in the media. It is a landmark our 
country should celebrate. But we must also 
recognize that this phenomenon is an
accomplishment of the VRA, with Section 5 playing 
an important role. An examination of the voting 
rights cases leading up to the 2012 election reveals 
that this historical participation in our democratic 
process was in part the direct result of Section 5’s 
protections. Indeed, without Section 5, minority 
voters in several states would have been denied their 
right to vote in 2012.

1. Section 5 Prevented
Discriminatory Voter
Identification Laws from 
Disenfranchising Minority Voters 
in the 2012 Election.



25

The most widespread legislative effort to 
curtail the right to vote leading up to the 2012 
election was the imposition of stricter documentary 
identification requirements on voters. Section 5’s 
preclearance requirement prevented the 
implementation of discriminatory voter 
identification laws in the 2012 general election by 
shifting the burden from the many voters who may 
have been disenfranchised by these laws, to the 
states seeking to implement them. Two covered 
jurisdictions—Texas and South Carolina—failed to 
persuade the DOJ and the U.S. District Court for the 
District of Columbia that they could implement their 
new voter identification laws prior to the 2012 
election without discriminating against minority 
voters.

In May 2011, Texas passed Senate Bill 14, S. 
14, 2011 Leg., 79th Sess. (Tex. 2011) (“SB 14”), 
amending its voter identification law to eliminate a 
number of acceptable forms of identification allowed 
under the existing law and instead requiring voters 
to present a Texas driver’s license, military 
identification, citizenship certificate or passport 
before being allowed to vote. Texas u. Holder, No. 
12-cv-128, 2012 WL 3743676, *1 (D.D.C. Aug. 30, 
2012). As a covered jurisdiction under Section 5, 
Texas was required to submit SB 14 for 
preclearance, which it did on July 25, 2011 by 
submission to the Department of Justice. Letter 
from Thomas E. Perez, Assistant Attorney Gen., U.S. 
Dep’t of Justice, to Keith Ingram, Dir. of Elections, 
Office of the Tex. Sec’y of State (Mar. 12, 2012).



26

On March 12, 2012, the Attorney General 
objected to Texas’ preclearance submission finding 
that the state had failed to meets its burden that the 
new law would not have a retrogressive effect on the 
state’s minority population. Id. Specifically, data 
submitted by Texas in support of its submission 
showed that over 600,000 registered voters in the 
state did not have the identification required by the 
new law, a disproportionate share of whom were 
Hispanic. Id. The data indicated that a Hispanic 
voter in Texas was 46.5% more likely than a non­
Hispanic voter to 
identification. Id.

lack the new forms of

In January 2012, after being denied
preclearance by the DOJ, Texas sought preclearance 
for its new voter identification law from the U.S. 
District Court for the District of Columbia. Texas, 
2012 WL 3743676, at *1. After an expedited trial, 
the district court concluded, “record evidence 
suggests that SB 14, if implemented,
would. . . likely ‘lead to a retrogression in the 
position of racial minorities with respect to their 
effective exercise of the electoral franchise.”’ Id. at 
*26 (quoting Beer v. United States, 425 U.S. 130, 141 
(1976)). Consequently, the court held that Texas’ 
voter identification law violated Section 5 and could 
not be enforced for the 2012 election. Id. at *26, 32.

The swift rejection of Texas’ voter
identification law by both the DOJ and the district 
court prevented one of the most restrictive voter 
identification laws in the country from being 
implemented in a way that would have blocked a 
disproportionate number of minority voters from the



27

polls on Election Day 2012. Section 5’s preclearance 
process served its purpose—providing an efficient 
and effective means to prevent the rollback of 
minority voting rights.

In May 2011, South Carolina, also a covered 
jurisdiction, passed Act R54 which amended South 
Carolina’s voter identification law to narrow the 
forms of permitted voter identification. R54, 119th 
Gen. Assemb., Reg. Sess. (S.C. 2011-2012). Similar 
to Texas, the South Carolina law required voters to 
present a South Carolina driver’s license, motor 
vehicle photo identification, passport, military 
identification card or a photo voter registration card. 
S.C. Code Ann. § 7-13-710(A) (2011). The prior law 
did not require photo identification to vote, allowing 
voters to present a non-photo voter identification 
card. Id. But the South Carolina amendment 
differed from Texas’ law in that it allowed voters 
with a “reasonable impediment” that prevents them 
from having one of the required forms of voter 
identification to sign an affidavit confirming their 
identity and explaining why they do not have one of 
the required forms of identification. S.C. Code Ann. 
§ 7-13-710 (D)(1)(b) (2011).

On December 23, 2011, the DOJ denied 
preclearance for South Carolina’s new voter 
identification law, finding that the new law would 
adversely affect minority voters. Letter from 
Thomas E. Perez, Assistant Attorney Gen., U.S. 
Dep’t of Justice, to C. Havird Jones, Jr., Assistant 
Deputy Attorney Gen. of S.C. (Dec. 23, 2011). Data 
presented by the state demonstrated that minority 
voters were nearly 20% more likely to lack motor



28

vehicle photo identification than white registered 
voters. Id. at 2. The DOJ also determined that the 
“reasonable impediment” exemption would not 
mitigate the law’s discriminatory effects because it 
was ambiguous and could be applied in a 
discriminatory way. Id. at 3.

South Carolina then filed for preclearance in 
the U.S. District Court for the District of Columbia. 
South Carolina v. United States, No. 12-203, 2012 
WL 4814094 (D.D.C. Oct. 10, 2012). The court 
decided the case on October 10, 2012, less than one 
month before the general election. Like the DOJ, 
the court concluded that non-white voters were more 
likely than white voters to not have one of the 
required forms of voter identification, but found that 
the law’s “sweeping reasonable impediment 
exemption eliminates any disproportionate effect or 
material burden that South Carolina’s voter ID law 
otherwise might have caused.” Id. at *9. In 
reaching its conclusion, the court was careful to 
explain that a broad interpretation and application 
of the exemption was critical to assuring the law’s 
legality. Id. at *19 (stating, “this law, without the 
reasonable impediment provision, could have 
discriminatory effects and impose material burdens 
on African-American voters . . . .”).

Importantly, the district court did not preclear 
the law for the 2012 election, finding that 
implementing the law so close to the election created 
too much of a risk to African-American voters. Id. 
The court explained, “[bjecause the voters who 
currently lack qualifying photo ID are 
disproportionately African-American, proper and



29

smooth functioning of the reasonable impediment 
provision would be vital to avoid unlawful racially 
discriminatory effect on African-American voters in 
South Carolina in the 2012 election.” Id.

The preclearance of South Carolina’s voter 
identification law provides an important example of 
the critical role Section 5 continues to play in 
protecting voting rights. First, the data shared 
during the preclearance process clearly 
demonstrated how a facially neutral law could have 
a dramatic discriminatory effect on minority voters. 
Second, the preclearance process provided an 
opportunity for the federal court to instruct the state 
that the reasonable impediment exemption must be 
expansively implemented in order to prevent the 
law’s potentially discriminatory impact. Third, the 
court put South Carolina on notice, explaining in no 
uncertain terms that Section 5 would prohibit any ad 
hoc alteration to the implementation of the 
exemption. And finally, Section 5 prevented the law 
from going into effect too soon before the 2012 
election, averting the serious risk of disenfranchising 
African American voters.

2. Section 5 Prevented the 
Reduction of Voting Hours in the 
2012 Election, Assuring Minority 
Voters Access to the Polls.

Early voting, or the opportunity for voters to 
cast their ballots in-person before Election Day, was 
widely utilized in a number of states in the 2012 
election. Florida implemented early, in-person 
voting in 2004, as part of its post-2000 election



30

reform. Minority voters, who often have greater 
transportation and occupational challenges getting 
to the polls, have participated in early voting in 
large numbers. Florida v. United States, No. 11- 
1428, 2012 WL 3538298, at *29 (D.D.C. Aug. 16, 
2012); Michael C. Herron & Daniel E. Smith, Early 
Voting in Florida in the Aftermath of House Bill 
1355 10 (Working Paper, Jan. 10, 2013). In 2012, 
Section 5 prevented an attempt to cut nearly half the 
number of days allowed for early voting in Florida.

In 2011, the Florida legislature passed an 
omnibus election administration bill making some 
eighty changes to the state election law, including 
one that decreased the number of days allowed for 
early in-person voting. Florida, 2012 WL 3538298, 
at *3. Because five counties in Florida are covered 
jurisdictions under Section 5, Florida submitted the 
change to the early voting law to United States 
District Court for the District of Columbia for 
preclearance. Id. at *2.

Under its prior law, Florida permitted early, 
in-person voting for twelve days over a fourteen-day 
period beginning on the fifteenth day before an 
election and ending on the second day before the 
election. Fla. Stat. § 101.657(d) (2010). The new law 
amended the number of days, the number of hours 
and the weekend times that early voting was offered 
in the state, decreasing the period from twelve days 
to eight, and eliminating the last Sunday before the 
election. Fla. Stat. § 101.657(d) (2011); Florida, 
2012 WL 3538298, at *5-6.



31

The district court denied preclearance, 
concluding that minority voters would be 
disproportionately affected by the decrease in early 
voting days. Florida, 2012 WL 3538298, at *23. The 
evidence presented at trial showed that in the 2008 
general election, more than half of African-American 
voters in Florida used early in-person voting—twice 
the rate of white voters. Id. at *17. This trend has 
continued since 2008; African Americans have 
consistently used early in-person voting in Florida at 
rates that exceed those of white voters. Id. at *21- 
22.

Consequently, the court determined that the 
decrease in early voting days had a “retrogressive 
effect with respect to African-American voters’ 
effective exercise of the electoral franchise” and 
could not be precleared under Section 5. Id. at *23.

For the 2012 general election, only thirty-two 
of Florida’s sixty-seven counties, including the five 
counties covered by Section 5, offered the maximum 
ninety-six hours of early voting hours permitted 
under the new law. Minority voters again took 
advantage of the extra time to cast their votes. 
While African Americans made up less than 14% of 
Florida’s registered voters in 2012, they made up 
more than 22% of the early voter electorate on each 
day of the 2012 early voting period. Herron & 
Smith, at 11. However, because there was a 
reduction in the total number of early voting hours 
and days in 2012, including the elimination of the 
Sunday immediately before Election Day, there were 
fewer opportunities for minorities to vote early. In 
Miami-Dade and Palm Beach counties, voters stood



32

in line to cast early votes for more than five hours 
during the weekend before Election Day. Id. at 20. 
In those two counties, African Americans made up 
only 16.7% of registered voters, but accounted for 
43.8% of the early voters on Sunday, November 4, 
2012. Id. at 21. The data tell the story. There is 
simply no question that without Section 5, a 
disproportionate number of minority voters in 
Florida would have been deterred from exercising 
their right to vote in 2012.

3. Section 5 Prevented the 
Discriminatory Dilution of 
Minority Voting Strength in the 
2012 Election.

In addition to preventing discriminatory 
voting laws from taking effect, Section 5 also 
prevented discriminatory legislative districts from 
diluting the voting strength of minority communities 
in 2012. After redrawing it legislative districts 
following the 2010 Census, Texas sought 
preclearance from the United States District Court 
for the District of Columbia. Texas has a long 
history of attempting to use the redistricting process 
to weaken the voting strength of minorities. In its 
opinion denying preclearance, the district court 
noted, “[i]n the last four decades, Texas has found 
itself in court every redistricting cycle, and each time 
it has lost.” Texas v. United States, No. 11-1303, 
2012 WL 3671924, at *20 (D.D.C. 2012), petition for 
cert, filed, 81 USLW 3233 (U.S. Oct 19, 2012)(No. 12- 
496).



33

According to the 2010 Census, Texas’ 
population grew by approximately 4.3 million in the 
past decade, an increase of more than 20%. Id. at 
*17. Approximately 89% of this growth was from 
non-white minorities: Hispanics comprised 65% of 
the increase, African Americans 13.4%, and Asian 
Americans 10.1%. Id. As a result of this increase, 
the Texas Congressional delegation grew from 
thirty-two to thirty-six members, the largest growth 
ever in a jurisdiction fully covered by Section 5. Id. 
Prompted by this population growth, the Texas State 
Legislature drew and enacted new legislative 
districts. Despite the substantial increase in the 
minority population, the enacted Congressional 
districts did not include a single new minority 
district. Id.

After an expedited trial in the summer of 
2012, the District Court denied preclearance, finding 
sufficient evidence that the proposed U.S. 
Congressional and State House plans would have a 
retrogressive effect on minority voters, and that the 
U.S. Congressional and State Senate plans were 
enacted with a discriminatory purpose. Id. at *37. 
The court found that under the enacted plan, 
proportional representation would yield fourteen 
new minority ability districts, but that there 
continued to be only the ten ability districts that had 
existed under the former plan prior to the new 
Census figures, creating a “representation gap” in 
the proposed plan of four districts. Id. at *18.

Moreover, evidence revealed that “substantial 
surgery” was performed on the Congressional 
districts of four African-American and one Hispanic



34

members of Congress, removing each incumbent 
member’s district office from the district. Id. at *19. 
Although Texas argued that this was the result of 
partisan politics and not racial discrimination, the 
court noted that, “[n]o such surgery was performed 
on the districts of Anglo incumbents. In fact, every 
Anglo member of Congress retained his or her 
district office.” Id. at *20.

Due to the delayed resolution of preclearance, 
a Texas district court drew interim maps for the 
2012 election. Perez v. Perry, 835 F. Supp.2d 209 
(W.D. Tex. 2011), vacated and remanded, 132 S.Ct. 
934 (2012). After an appeal to United States 
Supreme Court, the Texas federal court redrew the 
maps in February 2012, putting in place the districts 
for the 2012 election. Perez v. Texas, No. 11—CA— 
360, 2012 WL 4094933, at *1-2 (W.D. Tex. Feb. 28, 
2012). Texas voters elected nine new members of 
Congress in 2012; four Hispanic and one African- 
American.

The Section 5 preclearance process prevented 
districts that had both the purpose and effect of 
discriminating against minority voters from going in 
to effect in Texas, and created the opportunity for 
more equitable districts to be put in place in time for 
the 2012 election. As a result, minority voters in 
Texas were able to elect representatives of their 
choice.



35

4. Section 2 of the Voting Rights Act 
Would Not Have Been as Effective 
as Section 5 in Preventing 
Disenfranchisement of Minority 
Voters During the 2012 
Presidential Election.

The efficacy of the VRA’s strong medicine is 
largely attributable to Section 5. Unlike Section 2, 
which is reactive and places the burden on 
individual plaintiffs to prove that a practice has a 
discriminatory effect, South Carolina v. Katzenbach, 
383 U.S. 301, 327-28 (1966), Section 5 is preemptive 
and acts as a barricade to ensure that discriminatory 
changes are not put into effect. In so doing, Section 
5 shifts the burden onto covered jurisdictions to 
establish prior to implementation that a proposed 
voting change has neither a discriminatory effect nor 
purpose. By addressing the issue at the earliest 
possible stage, Section 5 decreases the cost and time 
associated with litigation. This anticipatory 
approach ensures that voting rights are not 
infringed upon in the first instance. Accordingly, 
Section 5 has played a significant role in deterring 
voting discrimination and remains vital to the 
protection of equal political participation. Indeed, 
the 2012 national election provides clear evidence 
that Section 5 remains an essential tool for 
protecting the right to vote in our country.

Without Section 5, voters’ only recourse to 
pursue voting rights violations would be Section 2 of 
the VRA. Section 2’s protections are insufficient to 
ensure minority access to the franchise. Section 2 
litigation is time consuming and expensive, and the



36

discriminatory impact of the challenged policy or 
practice remains in effect while the litigation 
proceeds. To Examine the Impact and Effectiveness 
of the Voting Rights Act: Hearing Before the 
Subcomm. on the Constitution of the Comm, on the 
Judiciary H.R., 109th Cong. 58 (2005) (“VRA 
Hearing”). Voters seeking to challenge election laws 
under Section 2 must hire an attorney, engage in 
extensive fact-gathering, hire experts, and pay costs 
associated with filing a lawsuit, which can cost 
millions of dollars and take years to achieve. Id. at 
78. Furthermore, state actors are entitled to an 
additional benefit under Section 2 because the 
burden of proving discrimination lies with the 
private plaintiff. Id. at 79-80. As this Court has 
explained, in designing Section 5, Congress “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.” 
Katzenbach, 383 U.S. at 328.

Significantly, discriminatory laws remain in 
effect throughout the Section 2 litigation, giving the 
state actor all the benefits of elected office even if the 
discriminatory practice is ruled unconstitutional. 
VRA Hearing at 43. Section 5 prohibits the 
discriminator from benefiting from discriminatory 
practices, and also prevents the election of 
representatives based on discriminatory practices.

All of these concerns would have come to bear 
in challenging the discriminatory practices in Texas, 
South Carolina, Florida, and Georgia. The voters



37

would have borne the burden of finding lawyers, 
marshaling evidence, hiring experts, and all the 
other expensive and time consuming complications 
of litigation. Election Day 2012 would be long 
passed, and untold hundreds of thousands of voters 
would have been wrongly denied their right to vote, 
officials elected under discriminatory practices 
would be comfortably settled in their offices and 
enacting new policies before the court could rule on 
the challenged practices.

Without Section 5, Hispanic and African- 
American voters in Texas would have been turned 
away from the polls on Election Day because they 
could not afford one of the few acceptable forms of 
photo identification required by SB 14. Without 
Section 5, African-American and Hispanic voters in 
South Carolina would have been confronted at the 
polls with new and complex identification 
requirements, resulting in confusion, confrontation, 
and frustration. Without Section 5, African- 
American and Hispanic voters in Florida would have 
arrived at the polls on their day off to exercise their 
most precious right only to find the polls closed and 
the doors locked. Without Section 5, Jose Morales 
and countless other United States citizens whether 
Hispanic, Asian, or African-American would have 
had their voter registration forms wrongly rejected 
by Georgia election officials who questioned their 
citizenship simply because of their last name, or a 
computer glitch.

Simply put, Section 2 alone cannot secure 
minority voting rights in covered jurisdictions 
because pervasive and consistent racial



38

discrimination continues to exist. Section 5 remains 
a necessary tool to protect the right to vote in our 
country. “The burden is too heavy—the wrong to our 
citizens is too serious—the damage to our national 
conscience is too great . . . .” Katzenbach, 383 U.S. at

For the foregoing reasons, the judgment of the 
United States Court of Appeals for the District of 
Columbia Circuit should be affirmed.

315.

CONCLUSION

Respectfully Submitted,

Aderson B. Francois 
Howard University 
School of Law  
Civil R ights Clinic 
2900 Van Ness Street NW 
Washington, D.C. 20008 
(202) 806-8065

Racial  Justice Project 
185 West Broadway 

New York, NY 10013

N ew  Y ork  Law  School

Counsel of Record 
Tamara C. Belinfanti

Deborah N. Archer

Erika L. Wood

(212) 431-2138
Deborah.Archer@nyls.edu

January  2013

mailto:Deborah.Archer@nyls.edu




N o. 12-96

In The

Suprem e (Emtrt nf thg Initgft S ta ir s

Shelby County, Alabama,
Petitioner,

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

Respondent.
AFFIDAVIT OF SERVICE

I HEREBY CERTIFY that all parties required to be served, have been served, on this 31st day 
of January, 2013, in accordance with U.S. Supreme Court Rule 29.5(c), three (3) copies of the 
foregoing BRIEF FOR THE HONORABLE CONGRESSMAN JOHN LEWIS AS AMICUS 
CURIAE IN SUPPORT OF RESPONDENTS AND INTERVENOR-RESPONDENTS by
placing said copies with U.S. Mail, First Class Mail, postage prepaid, addressed as listed 
below. I further certify that in accordance with U.S. Supreme Court Rule 25.9 an electronic 
version of the foregoing was sent to the parties listed below:

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

Donald B. Verrilli, Jr.
Solicitor General of the United States 
United States Department of Justice 
950 Pennsylvania Avenue, NW 
Washington, DC 20530-0001 
SupremeCtBriefs@usdoj.gov

Debo P. Adegbile 
NAACP Legal Defense

& Educational Fund, Inc.
99 Hudson Street 
16th Floor
New York, NY 10013 
dadegbile@naacpldf.org

Jon M. Greenbaum 
Lawyers’ Committee for

Civil Rights Under Law 
1401 New York Avenue, NW 
Suite 400
Washington, DC 20005 
jgreenbaum@lawyerscommittee.org

Laughlin McDonald 
American Civil Liberties 

Union Foundation 
230 Peachtree Street, NW 
Suite 1440
Atlanta, GA 30303-1227 
lmcdonald@aclu.org

mailto:SupremeCtBriefs@usdoj.gov
mailto:dadegbile@naacpldf.org
mailto:jgreenbaum@lawyerscommittee.org
mailto:lmcdonald@aclu.org


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J

SUPREME COURT OF THE UNITED STATES

No. 12-96
X

SHELBY COUNTY, ALABAMA,

Petitioner,

v.

ERIC H. HOLDER, JR., ATTORNEY GENERAL, ET AL.

Respondents.

X

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