Jackson v. Georgia Brief for Respondent

    No. 12-96

3 n  tlje

S u p r e m e  C o u r t  of tlje QSntteb S t a t e s

Shelby County, Alabama,
Petitioner,

v.
Eric H. Holder, Jr., Attorney General, et al.,

Respondents.

On Petition for Writ of Certiorari to the 
United States Court of Appeals for the 

District of Columbia Circuit

BRIEF OF FORMER DEPARTMENT OF JUSTICE 
OFFICIALS AS AMICI CURIAE 
IN SUPPORT OF PETITIONER

Carrie Severino 
The Judicial Education 

Project
1413 K Street, NW 
Suite 1000
Washington, DC 20533

Jeffrey M. Harris 
Counsel of Record 

Bancroft PLLC 
1919 M Street, NW 
Suite 470
Washington, DC 20036 
(202) 234-0090 
jharris@bancroftpllc.com

Counsel for Amici Curiae

August 23, 2012

mailto:jharris@bancroftpllc.com


TABLE OF CONTENTS
TABLE OF AUTHORITIES.......................................ii
INTEREST OF AMICI CURIAE ............................... 1
SUMMARY OF ARGUMENT..................................... 1
ARGUMENT................................................................4
I. Even A Simple Reauthorization of Section 

5 in Its Existing Form Would Have Been 
Unconstitutional.................................................... 4

II. Congress Aggravated the Inherent 
Constitutional Defects of Section 5 by 
Overruling This Court’s Decisions and 
Altering the Substantive Standard for
Preclearance............................................................ 5

A. This Court’s Decisions in Georgia v.
Ashcroft and Bossier Parish II Were 
Critical To Alleviating the Constitutional 
Flaws of Section 5............................................. 6

B. Congress Worsened the Inherent
Problems of Section 5 by Overruling 
Georgia and Bossier Parish II........................10

III. DOJ’s Aggressive Enforcement Strategy
Has Further Exacerbated Section 5’s
Constitutional Defects....................................... 14

A. DOJ Has Refused To Preclear Legislation
That is Unquestionably Permissible in 
Non-Covered Jurisdictions............................. 15

B. DOJ Has a Long Record of Overreach in
Section 5 Cases............................................... 19

CONCLUSION.......................................................... 21



11

TABLE OF AUTHORITIES

Cases
Beer v. United States,

425 U.S. 130 (1976)............................................  6, 7
City of Boerne v. Flores,

521 U.S. 507 (1997)..........................................  4, 13
Crawford v. Marion County Election Bd.,

553 U.S. 181 (2008)....................................  3, 15, 16
Georgia v. Ashcroft,

539 U.S. 461 (2003)....................................... passim
Gonzalez v. Arizona,

677 F.3d 383 (9th Cir. 2012)................................ 17
Hays v. Louisiana,

839 F. Supp. 1188 (W.D. La. 1993)...................... 20
Hays v. Louisiana,

936 F. Supp. 360 (W.D. La. 1996).........................21
LaRoque v. Holder,

679 F.3d 905 (D.C. Cir. 2012)..............................18
Miller v. Johnson,

515 U.S. 900 (1995)...............................6, 12, 19, 20
Northwest Austin Mun. Util. Dist. No. One 

v. Holder,
557 U.S. 193 (2009).......................  passim

Perry v. Perez,
132 S.Ct. 934 (2012).................................................2

Reno v. Bossier Parish School Board,
528 U.S. 320 (2000)..................................  2, 6, 7, 12

Ricci v. DeStefano,
557 U.S. 557 (2009)..................................................5



Shaw v. Hunt,
17U.S. 899 (1996)................................................ 21

Shelby County v. Holder,
679 F.3d 848 (D.C. Cir. 2012)..................... passim

Statutes
42 U.S.C. § 1973c........................................1, 5, 11, 12
Other Authorities
Charlie Savage, Holder, at NAACP Event,

Criticizes Voter ID Laws (July 10, 2012), 
available at
http://thecaucus.blogs.nytimes.com/2012/ 
07/10/holder-at-n-a-a-c-p-event-criticizes- 
voter-id-laws/........................................................ 17

Letter from William Moschella, Assistant 
Attorney General, to Hon. James 
Sensenbrenner (Apr. 12, 2006), available 
at http://www.scribd.com/doc/48673021/ 
2006-0412-Ltr-to-House-of-Rep-re-Voting- 
Rights-Act-Procedures....................................20, 21

National Conference of State Legislatures,
Absentee and Early Voting 
(updated July 22, 2011), available at 
http://www.ncsl.org/legislatures- 
elections/elections/absentee-and-early- 
voting.aspx.............................................................18

Petition for Writ of Certiorari, Nix v. Holder,
No. 12-81 (filed July 20, 2012)............................. 19

Nathaniel Persily, The Promise and Pitfalls 
of the New Voting Rights Act,
117 Yale L.J. 174 (2007) 12, 13

http://thecaucus.blogs.nytimes.com/2012/
http://www.scribd.com/doc/48673021/
http://www.ncsl.org/legislatures-elections/elections/absentee-and-early-voting.aspx
http://www.ncsl.org/legislatures-elections/elections/absentee-and-early-voting.aspx
http://www.ncsl.org/legislatures-elections/elections/absentee-and-early-voting.aspx


IV

United States’ Proposed Findings of Fact 
and Conclusions of Law, Florida v. Holder,
No. l:ll-cv-01428 (D.D.C. May 3, 2012)............. 18

United States’ Proposed Findings of Fact 
and Conclusions of Law, Texas v. Holder,
No. l:12-cv-00128 (D.D.C. June 25, 2012)..........  18



INTEREST OF AMICI CURIAE i

Amici Hans von Spakovsky, J. Christian Adams, 
Roger Clegg, Charles J. Cooper, Robert N. Driscoll, 
William Bradford Reynolds, and Bradley Schlozman 
have all served in senior positions in the Civil Rights 
Division of the Department of Justice. Amici have 
extensive experience with the Voting Rights Act and 
the Department’s enforcement policies, and have a 
substantial interest in ensuring that that any race- 
based remedial measures, such as Section 5 of the 
Act, comply with the Constitution.

SUMMARY OF ARGUMENT

This Court has rarely mentioned Section 5 of the 
Voting Rights Act (“VRA”) in recent years without 
mentioning in the same breath the serious 
constitutional issues raised by that provision. 
Section 5 prohibits “covered jurisdictions” from 
implementing any changes to their election 
procedures until those changes are submitted to, and 
approved by, either the Attorney General or a three- 
judge district court. See 42 U.S.C. § 1973c. In doing 
so, Section 5 differentiates between the states 
despite “our historic tradition that all the states 
enjoy ‘equal sovereignty’ ” ; uses a coverage formula 
based on 40-year-old data that no longer reflects 
where discrimination is most likely to occur; and

1 This brief was not written in whole or in part by counsel 
for any party, and no person or entity other than amici and 
their counsel has made a monetary contribution to the 
preparation and submission of this brief. Petitioner and 
Respondent have each filed a blanket consent for amicus briefs. 
Counsel for Defendent-Intervenors received timely notice of 
amici’s intent to file and have consented to this filing.



2

forces states to rely excessively on racial 
considerations in designing their election policies. 
Northwest Austin Mun. Util. Dist. No. One v. Holder, 
557 U.S. 193, 203-04 (2009); see also Perry v. Perez, 
132 S.Ct. 934, 942 (2012) (noting the ‘“ serious 
constitutional questions’ raised by § 5’s intrusion on 
state sovereignty”).

In light of this Court’s repeated articulation of 
the constitutional flaws of Section 5, Congress and 
DOJ could have taken any number of different steps 
to ease those concerns and place the statute on more 
sound constitutional footing. Congress, for example, 
could have updated the coverage formula to ensure a 
better fit between current burdens and current 
needs, or relaxed the substantive standard for 
granting preclearance. DOJ, for its part, could have 
adopted a restrained enforcement strategy that 
minimized costly litigation and quickly precleared 
voting changes in covered jurisdictions that were 
similar to valid statutes in non-covered jurisdictions.

Instead, both Congress and DOJ have taken a 
number of actions that have only exacerbated the 
already-serious constitutional flaws of Section 5. In 
the 2006 reauthorization of the VRA, Congress 
abrogated two of this Court’s most important 
decisions interpreting Section 5, Georgia v. Ashcroft, 
539 U.S. 461 (2003), and Reno v. Bossier Parish 
School Board, 528 U.S. 320 (2000) (“Bossier Parish 
II ). Both of those decisions relied on the canon of 
constitutional avoidance and were critical to 
preventing an unconstitutionally overbroad 
application of Section 5. Yet the 2006 
reauthorization discards Georgia and Bossier 
Parish II, and significantly expands the substantive



3

grounds on which DOJ or the district court can 
refuse to preclear a change in voting procedures.

DOJ, too, has abandoned any pretense of 
restraint and has used Section 5 to block a number 
of voting changes in covered jurisdictions that closely 
resemble laws already in force in non-covered 
jurisdictions. For example, this Court has held that 
an Indiana statute requiring voters to present photo 
identification is facially constitutional, see Crawford 
v. Marion County Election Bd., 553 U.S. 181 (2008), 
yet DOJ has sought to prevent Texas and South 
Carolina from adopting similar legislation. Worse 
yet, many of DOJ’s objections to preclearance rely on 
amorphous allegations of discriminatory “purpose” 
that cannot be resolved without extensive and costly 
discovery and, often, a full trial on the merits. 
Covered jurisdictions are subject to these burdens 
solely because of a formula that relies on nearly 40- 
year-old data and has taken no account whatsoever 
of the fact that “[tjhings have changed” over the 
intervening four decades. Northwest Austin, 557 
U.S. at 202.

k k k

Rather than heed this Court’s repeated calls for 
restraint, Congress’ and DOJ’s recent actions have 
only worsened the grave constitutional flaws of 
Section 5. It is thus critical that this Court finally 
answer the question left open in Northwest Austin of 
“[wjhether conditions continue to justify” the 
extraordinary burdens imposed by Section 5. 557
U.S. at 211. The petition for certiorari should be 
granted.



4

ARGUMENT

I. Even A Simple Reauthorization of Section 
5 in Its Existing Form W ould Have Been 
Unconstitutional

The 2006 reauthorization of Section 5 would not 
have passed constitutional muster even if Congress 
had made no substantive changes to the statute. As 
Shelby County explains, the formula used to 
determine which jurisdictions are covered by Section 
5 relies on badly outdated data and fails to identify 
the jurisdictions most likely to engage in 
discriminatory voting practices. Pet. 29-34; see also 
Shelby County v. Holder, 679 F.3d 848, 889-900 
(D.C. Cir. 2012) (Williams, J., dissenting) 
(concluding that the “equivocal evidence” of 
discrimination in covered jurisdictions cannot 
“sustain” Section 5). Indeed, the disparity in voter 
registration rates between African-American and 
white citizens in covered jurisdiction has “nearly 
vanished,” and in many covered jurisdictions 
minority registration and turnout rates exceed those 
of white voters. Northwest Austin, 557 U.S. at 227 
(Thomas, J., concurring in part and dissenting in 
part).

Moreover, even if there were some plausible 
nexus between the coverage formula and likely 
constitutional violations, the severe remedy of 
forcing covered jurisdictions to seek advance federal 
approval of their duly enacted laws is “so out of 
proportion . . . that, it cannot be understood as 
responsive to, or designed to prevent, 
unconstitutional behavior.” City of Boerne v. Flores, 
521 U.S. 507, 532 (1997); see Pet. 25-29; Northwest



5

Austin, 557 U.S. at 228 (Thomas, J., concurring in 
part and dissenting in part) (concluding that “the 
existence of discrete and isolated incidents of 
interference with the right to vote” is not “sufficient 
justification for the imposition of § 5’s extraordinary 
requirements”).2
II. Congress A ggravated the Inherent 

Constitutional Defects of Section 5 by 
Overruling This Court’s Decisions and 
A ltering the Substantive Standard for 
Preclearance

In order to obtain preclearance under Section 5, a 
covered jurisdiction must demonstrate that the 
proposed change “neither has the purpose nor will 
have the effect of denying or abridging the right to 
vote on account of race or color.” 42 U.S.C. 
§ 1973c(a). The “limited substantive goal” of Section 
5 is to ensure that ‘“ no voting-procedure changes 
would be made that would lead to a retrogression in 
the position of racial minorities with respect to their 
effective exercise of the franchise.’ ’ Miller v.

2 Section 5’s use of an “effects” test also raises serious 
constitutional concerns, as it forces covered jurisdictions to 
engage in race-conscious decisionmaking. For example, covered 
jurisdictions will face a strong incentive to engage in racial 
gerrymandering in order to ensure racially proportionate 
election results. See Part II.B, infra; see also Ricci v. 
DeStefano, 557 U.S. 557, 594 (2009) (Scalia, J., concurring) 
(noting that the disparate-impact provisions in Title VII raise 
serious equal protection concerns because they “place a racial 
thumb on the scales, often requiring employers to evaluate the 
racial outcomes of their policies, and to make decisions based 
on (because of) those racial outcomes”).



6

Johnson, 515 U.S. 900, 926 (1995) (quoting Beer v. 
United States, 425 U.S. 130, 141 (1976)).

When Congress reauthorized Section 5 in 2006, it 
did not write on a blank slate. This Court’s decisions 
in Georgia u. Ashcroft and Bossier Parish II had 
interpreted both the “purpose” and “effects” prongs 
of the statutory test in a manner that ameliorated 
the inherent constitutional burdens of the statute. 
Remarkably, Congress abrogated both of those 
decisions in the 2006 re authorization. As a result, 
even though covered jurisdictions have made 
remarkable progress since the VRA was enacted in 
1965—and now perform as well as (or better than) 
non-covered jurisdictions on most measures of voting 
equality, see Northwest Austin, 557 U.S. at 202-04; 
Pet. 29-34—it has become considerably harder for 
covered jurisdictions to meet the substantive 
standard for preclearance.

A. This Court’s Decisions in Georgia v. 
Ashcroft and Bossier Parish II Were 
Critical To Alleviating the Constitutional 
Flaws of Section 5

1. Bossier Parish II involved a challenge to the 
new electoral districts for a Louisiana school board. 
It was undisputed that, compared to the preexisting 
"benchmark" plan, the new plan “did not worsen the 
position of minority voters,” and thus did not have a 
retrogressive effect. 528 U.S. at 324. The Attorney 
General nonetheless denied preclearance, arguing 
that new plan had a discriminatory purpose because 
the Parish did not maximize the number of majority- 
minority districts. Id. at 325.



7

This Court squarely rejected DOJ’s interpretation 
of the “purpose” test, holding that Section 5 “does not 
prohibit preclearance of a redistricting plan enacted 
with a discriminatory but nonretrogressive purpose.” 
Id. at 341. That is, the relevant inquiry is not 
whether there was any discriminatory purpose, but 
whether there was a specific purpose to retrogress 
minority voting strength compared to the benchmark 
plan. As the Court explained, Section 5 “prevents 
nothing but backsliding, and preclearance under 
Section 5 affirms nothing but the absence of 
backsliding.” Id. at 336. A holding that Section 5 
reached any kind of discriminatory purpose would 
have also been inconsistent with this Court’s 
decisions interpreting the “effects” prong of the 
statute as requiring “retrogressive effects.” Beer, 425 
U.S. at 141 (emphasis added); see also id. (noting 
that “a legislative reapportionment that enhances 
the position of racial minorities with respect to their 
effective exercise of the electoral franchise can 
hardly have the ‘effect’ of diluting or abridging the 
right to vote on account or race”).

The decision in Bossier Parish II expressly turned 
on the canon of constitutional avoidance. This Court 
emphasized that extending Section 5 to 
“discriminatory but nonretrogressive vote-dilutive 
purposes” would “blur the distinction between 
Section 2 and Section 5,” and “change the Section 5 
benchmark from a jurisdiction’s existing plan to a 
hypothetical, undiluted plan.” 528 U.S. at 336. That 
reading of the statute would “exacerbate the 
‘substantial’ federalism costs the preclearance 
procedure already exacts . . . perhaps to the extent of



8

raising concerns about Section 5’s constitutionality. 
Id.

2. Georgia v. Ashcroft, which addressed Georgia’s 
redistricting plans following the 2000 census, was an 
equally important decision regarding the “effects” 
prong of the preclearance standard. The challenged 
plans, which were strongly supported by African- 
American legislators, “unpacked” the most heavily 
concentrated majority-minority districts in order to 
create several new “influence” districts. 539 U.S. at 
470-71. That is, the legislature chose to reduce the 
number of districts with a black voting age 
population in excess of 60% and instead create 
additional districts with a black voting age 
population between 25% and 50%. The goal of this 
plan was to “bringQ people together” by eliminating 
districts that overwhelmingly consisted of voters of a 
single race. Id. at 470. The district court 
nonetheless refused to preclear Georgia’s plans, 
holding that the plans had a retrogressive effect 
because they reduced the opportunity for the “black 
candidate of choice” to win election, and 
“diminish[ed] African American voting strength" in 
existing majority-minority districts. Id. at 474.

This Court reversed. The Court held that the 
question whether a challenged practice has a 
retrogressive effect “depends on an examination of 
all the relevant circumstances, such as the ability of 
minority voters to elect their candidate of choice, the 
extent of the minority group’s opportunity to 
participate in the political process, and the 
feasibility of creating a nonretrogressive plan.” Id. 
at 479 (emphasis added). The comparative ability of 
a minority group to elect a candidate of its choice is



9

“important” in the retrogression inquiry but “cannot 
be dispositive or exclusive.” Id. at 480.

The Court further held that “Section 5 gives 
States the flexibility to choose one theory of effective 
representation over the other.” Id. at 482. Some 
states might choose to create a small number of 
“safe” majority-minority districts. That approach 
“virtually guarantee [s]” the election of the group’s 
preferred candidate, but “risks isolating minority 
voters from the rest of the State, and risks 
narrowing political influence to only a fraction of 
political districts.” Id. at 480-81. Alternatively, a 
state might choose to create “influence districts” 
with lower percentages of minority voters. This 
increases the risk that the preferred candidate will 
lose, but promotes the creation of multi-racial 
coalitions. Id. at 481. The core holding of Georgia is 
that Section 5 does not mandate one approach over 
the other, but leaves each state substantial 
discretion about how best to accommodate its own 
unique interests. See id. at 483 (Section 5 “leaves 
room for States to use these types of influence and 
coalitional districts”).

The Court emphasized once again that “[t]he 
purpose of the [VRA] is to prevent discrimination in 
the exercise of the electoral franchise and to foster 
our transformation to a society that is no longer 
fixated on race.” Id. at 490. Thus, “the [VRA], as 
properly interpreted, should encourage the 
transition to a society where race no longer matters: 
a society where integration and color-blindness are 
not just qualities to be proud of, but are simple facts 
of life.” Id. at 490-91.



10

Justice Kennedy concurred. While agreeing that 
“our decisions controlling the § 5 analysis require the 
Court’s ruling here,” he noted that “considerations of 
race that would doom a redistricting plan under the 
Fourteenth Amendment or § 2 seem to be what save 
it under § 5.” Id. at 491 (Kennedy, J., concurring). 
Justice Kennedy emphasized that “the discord and 
inconsistency” between § 2 and § 5 “should be 
confronted,” and that “[tjhere is a fundamental flaw 
. . . in any scheme in which the Department of 
Justice is permitted or directed to encourage or 
ratify a course of unconstitutional conduct in order 
to find compliance with a statutory directive.” Id.

B. Congress Worsened the Inherent 
Problems of Section 5 by Overruling 
Georgia and Bossier Parish II

Because of the badly outdated coverage formula 
and disproportionate remedy, even a simple 
reauthorization of Section 5 would have raised grave 
constitutional concerns. See supra Part I. But the 
2006 reauthorization goes far beyond that, by 
significantly broadening the substantive grounds on 
which voting changes can be denied preclearance. 
Congress expressly overruled this Court’s decisions 
in Georgia and Bossier Parish II, even though both of 
those decisions relied on the canon of constitutional 
avoidance and were critical to alleviating Section 5’s 
inherent constitutional defects.

1. As explained above, Georgia gave states 
significant discretion to choose whether to have a 
smaller number of “safe” majority-minority districts 
or a larger number of “influence” districts. The 2006 
amendments to the VRA foreclose that choice.



11

Congress rejected Georgias totality-of-the- 
circumstances analysis and instead provided that 
the sole inquiry is whether the challenged law “has 
the purpose or will have the effect of diminishing the 
ability of any citizens of the United States on 
account of race or color . . .  to elect their preferred 
candidates of choice.” 42 U.S.C. § 1973c(b); see also 
id. § 1973c(d) (providing that the purpose of this 
amendment “is to protect the ability of [minority] 
citizens to elect their preferred candidates of 
choice”).

The “exclusive focus” of Section 5 is now “whether 
the plan diminishes the ability of minorities (always 
assumed to be a monolith) to ‘elect their candidates 
of choice,’ irrespective of whether policymakers 
(including minority ones) decide that a group’s long­
term interests might be better served by less 
concentration—and thus less of the political isolation 
that concentration spawns.” Shelby County, 679 
F.3d at 887 (Williams, J., dissenting). As Judge 
Williams explained, this amendment to Section 5’s 
substantive standard “not only mandates race­
conscious decisionmaking, but a particular brand of 
it.” Id. The effect will be ossification of existing 
majority-minority districts, which will prevent 
policymakers from experimenting with different 
types of districts that may promote good governance 
and cooperation between racial groups.3 Congress’ 
overruling of Georgia thus “aggravates both the

3 See Georgia, 539 U.S. at 481 (influence and coalition 
districts may “increase ‘substantive representation’ in more 
districts, by creating coalitions of voters who together will help 
to achieve the electoral aspirations of the minority group ).



12

federal-state tension with which Northwest Austin 
was concerned and the tension between Section 5 
and the Reconstruction Amendments’ commitment 
to nondiscrimination.” Id.

2. In the 2006 reauthorization, Congress also 
abrogated this Court’s decision in Bossier Parish II 
by adding to Section 5 a new provision stating that 
the term “purpose” “shall include any discriminatory 
purpose.” 42 U.S.C. § 1973c(c) (emphasis added).

This change is no mere technicality. See Persily, 
The Promise and Pitfalls of the New Voting Rights 
Act, 117 Yale L.J. 174, 217 n.165 (2007) (arguing 
that the “potential impact” of overruling Bossier 
Parish II “should not be understated”). If Section 5 
broadly bars “any” discriminatory purpose, then 
DOJ can use it to block voting changes on grounds 
that have nothing to do with retrogression. Indeed, 
in Bossier Parish II, DOJ divined a discriminatory 
purpose from the district’s failure to maximize 
minority seats, even though it was undisputed that 
there was no actual retrogression compared to the 
benchmark plan. 528 U.S. at 324-25; see also Miller, 
515 U.S. at 927 (DOJ’s “implicit command that 
States engage in presumptively unconstitutional 
race-based districting brings the Act . . . into tension 
with the Fourteenth Amendment”).

By overruling Bossier Parish II, Congress has 
now reauthorized the same type of free-ranging 
"purpose" inquiry under which DOJ pursued its 
patently unconstitutional failure-to-maximize 
policies throughout the 1990s. See Shelby County, 
679 F.3d at 887-88 (Williams, J., dissenting) 
(discriminatory purpose claims under Section 5 were



13

“precisely the device that [DOJ] had employed in its 
pursuit of maximizing majority-minority districts at 
any cost”). As Professor Persily presciently 
explained in 2007, “[t]here is a risk that the purpose 
inquiry will turn into another opportunity for 
partisan infection of the preclearance process—for 
example, with a Democratic-leaning DOJ 
determining that all Republican gerrymanders in 
jurisdictions with heavy minority populations have 
discriminatory purposes or finding that failure to 
maximize the number of majority-minority districts 
constitutes discriminatory purpose." Persily, 117 
Yale L.J. at 217 n.165. At the very least, “[t]he 
purpose inquiry provides a lot of discretion to the 
DOJ,” and “[Jurisdictions may feel that they must 
accede to DOJ pressures applied in the short, 
stressful period preceding an election.’ Id.

3. The Court of Appeals refused to address 
Congress’ alteration of the preclearance standard on 
the ground that Shelby County had not brought a 
separate challenge to the substantive amendments to 
Section 5. See Shelby County, 679 F.3d at 883-84. 
But Shelby County did bring a facial challenge to 
“Congress’ decision in 2006 to reauthorize until 2031 
the preclearance obligation of Section 5 of the VRA 
under the pre-existing coverage formula.’ Pet. 2. 
The substantive standard for granting preclearance 
is critical to any assessment of whether Section 5, on 
its face, is “congruen[t] and proportional!] to the 
harm Congress sought to remedy. Boerne, 521 U.S. 
at 520. As Judge Williams explained, “[t]o answer 
that question one must necessarily first assess the 
severity of the consequences of coverage. Shelby



14

County, 679 F.3d at 888 (Williams, J., dissenting).4 
Congress’ abrogation of Georgia and Bossier Parish 
II is properly before the Court, and only underscores 
the unconstitutionality of Section 5.
III. DOJ’s A ggressive Enforcement Strategy 

Has Further Exacerbated Section 5’s 
Constitutional Defects

Not content with both the reauthorization of 
Section 5 and a significant expansion of the 
substantive grounds on which preclearance can be 
denied, DOJ has also doubled down on aggressive 
enforcement strategy that has dramatically 
increased the costs and burdens borne by covered 
jurisdictions.

In particular, DOJ has refused to preclear a 
number of state laws in covered jurisdictions that 
are routinely implemented in non-covered 
jurisdictions. As a result, covered jurisdictions must 
engage in costly and wasteful litigation in order for 
their statutes to take effect, while similar laws in 
non-covered jurisdictions are presumptively valid 
and may take effect immediately. See Shelby 
County, 679 F.3d at 885 (Williams, J., dissenting) 
(Section 5 requires “state and local officials to go hat 
in hand to Justice Department officialdom to seek 
approval of any and all proposed voting changes”).

4 The majority was also wrong on the facts, as Shelby 
County did challenge Congress’ modifications of the 
substantive preclearance standard. See Plaintiffs Consolidated 
Reply Memorandum in Support of Motion for Summary 
Judgment at 50-51, Dkt. 65, No. l:10-cv-651 (D.D.C. Dec. 13, 
2010); Reply Brief for Appellant at 24-25. No. 11-5256 (D.C. 
Cir. Dec. 15, 2011).



15

The sole reason for this grossly disparate treatment 
is a formula based on 40-year-old data that fails to 
acknowledge in any way that “[tjhings have 
changed” in covered jurisdictions since the VRA was 
enacted in 1965. Northwest Austin, 557 U.S. at 202.

A. DOJ Has Refused To Preclear Legislation 
That is Unquestionably Permissible in 
Non-Covered Jurisdictions

1. The second-class status of covered 
jurisdictions is most readily apparent in the context 
of laws requiring voters to present photo 
identification at the polls.

This Court has emphasized that “[tjhere is no 
question about the legitimacy or importance of [a] 
State’s interest in counting only the votes of eligible 
voters.” Crawford v. Marion County Election Bd., 
553 U.S. 181, 196 (2008) (plurality op.). Moreover, 
“the interest in orderly administration and accurate 
recordkeeping provides a sufficient justification for 
carefully identifying all voters participating in the 
election process.” Id. While “the most effective 
method of preventing election fraud may well be 
debatable, the propriety of doing so is perfectly 
clear.” Id.; see also id. at 197 (noting that “public 
confidence in the integrity of the electoral process 
has independent significance, because it encourages 
citizen participation in the democratic process”).

The Court thus rejected a facial challenge to 
Indiana’s voter identification law. For most voters, 
the law was unlikely to “even represent a significant 
increase over the usual burdens of voting.’ Id. at 
198. And, although “a somewhat heavier burden 
may be placed on a limited number of persons,” the



16

Court concluded that the “severity” of this burden 
would be lessened by a provision allowing voters to 
cast provisional ballots if they did not have photo 
identification at the polls. Id. at 199. The 
challengers bore a “heavy burden of persuasion,” and 
this Court found that the “precise interests 
advanced by the State” were “sufficient to defeat 
[the] facial challenge. Id. at 200, 203; see also id. at 
204 (Scalia, J., concurring) (concluding that the 
“burden at issue is minimal and justified”).

Non-covered jurisdictions are thus free to enact 
voter identification laws, and Indiana, Kansas, 
Pennsylvania, and Tennessee have done just that. 
Those statutes are deemed facially valid, and the 
burden of proof is on the plaintiffs in any Section 2 
or Equal Protection challenge.

In light of this Court’s decision in Marion 
County, one might have expected that DOJ would 
readily preclear voter identification statutes in 
covered jurisdictions as well. Instead, however, DOJ 
has sought to prevent Texas and South Carolina 
from implementing statutes that closely resemble 
the Indiana law this Court found to be facially 
constitutional. ’ Both cases are now pending before 
three-judge district courts, and have entailed 
massive document discovery, numerous intervenors, 
dueling expert witnesses, and trials with live 
testimony. Even though the Texas and South 
Carolina statutes were both enacted in May 2011, it

0 The Texas and South Carolina statutes are also similar to 
a Georgia voter identification law that DOJ precleared in 2005 
under the previous administration.



17

is unlikely that either will be in force for the fall 
2012 elections.

This disparate treatment is particularly baffling 
given that Texas and South Carolina have higher 
minority registration and voting rates, and more 
African-American elected officials, than Indiana. 
See Shelby County, 679 F.3d at 902 (Williams, J., 
dissenting). Yet DOJ has refused to allow Texas’ 
and South Carolina’s duly enacted statutes to take 
effect, and the Attorney General has grossly 
mischaracterized these statutes as “poll taxes.”6 7 It 
strains credulity to suggest that statutes offering 
free identification to voters—and that are similar to 
a statute this Court found to be facially 
constitutional—are akin to the most egregious form 
of voting discrimination from the Jim Crow era. See 
Gonzalez u. Arizona, 677 F.3d 383, 408-410 (9th Cir. 
2012) (en banc) (rejecting argument that a proof-of- 
citizenship requirement was analogous to a poll tax 
because that requirement “is related to the state s 
legitimate interest in assessing the eligibility and 
qualifications of voters ... and the burden is minimal 
under [Marion County]”).

2. These are not isolated examples. Eighteen 
states do not currently offer any in-person early 
voting.' Yet DOJ has refused to preclear a Florida

6 See Charlie Savage, Holder, at NAACP Event, Criticizes
Voter ID Laws (July 10, 2012), available at
http://thecaucus.blogs.nytimes.com/2012/07/10/holder-at-n-a-a-
c-p-event-criticizes-voter-id-laws/.

7 See National Conference of State Legislatures, Absentee 
and Early Voting (updated July 22, 2011), available at

http://thecaucus.blogs.nytimes.com/2012/07/10/holder-at-n-a-a-


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law that merely changes the times at which early 
voting will be offered while preserving the same total 
number of early voting hours. In refusing to preclear 
that change, DOJ has advanced exactly the sort of 
amorphous, purpose-based claim that this Court 
found constitutionally problematic in Bossier Parish 
II, but that Congress reinvigorated in the 2006 
reauthorization.8 Florida will not be allowed to 
implement these trivial changes in its election 
procedures unless and until it can prove the negative 
that its legislators were not acting with such a 
purpose.

Similarly, in November 2008, voters in Kinston, 
North Carolina approved a referendum shifting to a 
system of non-partisan local elections. Countless 
jurisdictions in the United States use some form of 
non-partisan elections to choose local officials or 
judges. Yet DOJ refused to preclear the Kinston 
plan on the rather paternalistic theory that minority 
candidates would receive fewer “crossover” votes if 
they could not identify themselves as Democrats. 
See LaRoque v. Holder, 679 F.3d 905, 907 (D.C. Cir. 
2012). After nearly three years of litigation, and on 
the eve of a second trip to the D.C. Circuit, DOJ

http://www.ncsl.org/legislatures-elections/elections/absentee-
and-early-voting.aspx.

8 See United States’ Proposed Findings of Fact and 
Conclusions of Law at 17-25, Florida v. Holder, No. l:ll-cv - 
01428 (D.D.C. May 3, 2012); see also United States’ Proposed 
Findings of Fact and Conclusions of Law at 24, Texas v. Holder, 
No. l:12-cv-00128 (D.D.C. June 25, 2012) (asserting that Texas' 
stated purposes for adopting a photo identification 

requirements “cloak a discriminatory purpose”); id. at 63-71.

http://www.ncsl.org/legislatures-elections/elections/absentee-


19

withdrew its objection and attempted to moot the 
case. Id. A certiorari petition in the Kinston case is 
currently pending before this Court, see Nix v. 
Holder, No. 12-81 (filed July 20, 2012), and amici 
encourage the Court to grant that petition as well as 
the instant petition.9

B. DOJ Has a Long Record of Overreach in 
Section 5 Cases

This overreach is nothing new. Throughout the 
1990s, DOJ routinely invoked a discriminatory 
“purpose” as the basis for withholding preclearance 
from redistricting plans that did not maximize 
minority voting strength. For example, in Miller v. 
Johnson, DOJ twice denied preclearance of Georgia’s 
redistricting plans on the ground that the state 
‘“ failed to explain adequately’ its failure to create a 
third majority-minority district.” 515 U.S. at 907. 
Georgia eventually obtained administrative 
preclearance from DOJ only by adopting a severely 
gerrymandered plan that used the ACLU s so-called 
“max-black” plan as the benchmark. Id. at 907-08.

DOJ’s approach to preclearance effectively forced 
Georgia to violate the Equal Protection Clause. Race 
was “the predominant, overriding factor’ explaining 
why the new plan attached to existing districts 
“various appendages containing dense majority- 
black populations.” Id. at 920. As this Court 
explained, “[ijnstead of grounding its objections on 
evidence of a discriminatory purpose, it would 
appear that [DOJ] was driven by its policy of

9 Amicus J. Christian Adams expresses no position on the 
Kinston case.



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maximizing majority-black districts.” Id. at 924. 
The Court found DOJ’s position to be 
“insupportable,” and emphasized that “[w]e do not 
accept the contention that the State has a compelling 
interest in complying with whatever preclearance 
mandates the Justice Department issues.” Id. at 
922-24. “In utilizing § 5 to require States to create 
majority-minority districts wherever possible, [DOJ] 
expanded its authority under the statute beyond 
what Congress intended and we have upheld.” Id. at 
925. DOJ eventually agreed to pay nearly $600,000 
in attorneys’ fees to the plaintiffs for the protracted 
litigation in the Miller case.10

Similarly, in a case arising out of Louisiana’s 
1990 redistricting, DOJ “let it be known that 
preclearance would not be forthcoming for any plan 
that did not include at least two ‘safe’ black districts 
out of seven.” Hays v. Louisiana, 839 F. Supp. 1188, 
1196 n.21 (W.D. La. 1993). The court held that 
"neither Section 2 nor Section 5” justifies this 
approach, and that DOJ’s position was “nothing 
more than . . . ‘gloss’ on the [VRA]—a gloss 
unapproved by Congress and unsanctioned by the 
courts.” Id.; see also id. (DOJ “arrogated the power 
to use Section 5 preclearance as a sword to 
implement forcibly its own redistricting policies”); 
Hays v. Louisiana, 936 F. Supp. 360, 369, 372 (W.D.

10 See Letter from William Moschella, Assistant Attorney 
General, to Hon. James Sensenbrenner (Apr. 12, 2006) at 3, 
available at http://www.scribd.com/doc/48673021/2006-0412- 
Ltr-to-House-of-Rep-re-Voting-Rights-Act-Procedures
(“Moschella Letter'") (detailing cases in which the Civil Rights 
Division was admonished by a court or forced to pay attorneys’ 
fees to the opposing party).

http://www.scribd.com/doc/48673021/2006-0412-Ltr-to-House-of-Rep-re-Voting-Rights-Act-Procedures
http://www.scribd.com/doc/48673021/2006-0412-Ltr-to-House-of-Rep-re-Voting-Rights-Act-Procedures


21

La. 1996) (DOJ “impermissibly encouraged—nay, 
mandated—racial gerrymandering,” and “the 
Legislature succumbed to [DOJ’s] illegitimate 
preclearance demands”). DOJ paid more than $1.1 
million to settle claims for attorneys’ fees arising out 
of the Hays case. See Moschella Letter at 4.11

CONCLUSION

DOJ’s current approach to Section 5 closely 
resembles its enforcement strategy during the 1990s, 
which was roundly rejected by the courts as 
indefensible and, indeed, unconstitutional. Because 
of DOJ’s renewed recalcitrance, covered jurisdictions 
must incur millions of dollars of costs, countless 
hours of wasted time, and the inherent sovereign 
indignity of being forced to go “hat in hand to 
federal officials just to implement their duly enacted 
laws—laws that are often nearly identical to facially 
valid legislation in non-covered jurisdictions.

The 2006 reauthorization of Section 5, which 
continues to rely on the badly outdated coverage 
formula, would have raised grave constitutional 
concerns even if Congress had preserved the 
preexisting substantive standard for preclearance 
and DOJ had taken a restrained approach to 
enforcement. Congress’ failure to update the 
coverage formula, combined with its overruling of 
Georgia and Bossier Parish II and DOJ’s aggressive

11 See also Shaw v. Hunt, 517 U.S. 899, 912-13 (1996) 
(holding that North Carolina redistricting plan violated the 
Equal Protection Clause, and that DOJ s insistence upon the 
maximum number of race-based districts was unsupportable ).



22

enforcement strategy, cannot satisfy any plausible 
standard of constitutionality.

The petition for certiorari should accordingly be 
granted.

Respectfully submitted,
Jeffrey M. Harris 

Counsel of Record 
Bancroft PLLC 
1919 M Street, NW, Ste. 470 
Washington, DC 20036 
jharris@bancroftpllc.com 
(202) 234-0090

Carrie Severino 
The Judicial Education 

Project
1413 K Street, NW 
Suite 1000
Washington, DC 20533

August 23, 2012 Counsel for Amici Curiae

mailto:jharris@bancroftpllc.com


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