Bailey v. Patterson Mimeographed Record Vol. IV

    No. 12-96

3n me
Supreme Court of tfje fHmteb States!

--------------- « ----------------

SHELBY COUNTY, ALABAMA,
Petitioner,

v.

ERIC H. HOLDER, JR., ATTORNEY GENERAL, et al.,
Respondents.

On Petition For A Writ Of Certiorari 
To The United States Court Of Appeals 
For The District Of Columbia Circuit

--------------- ♦----------------

BRIEF OF THE NATIONAL BLACK 
CHAMBER OF COMMERCE AS AMICUS 
CURIAE IN SUPPORT OF PETITIONER

--------------- ♦----------------

David B. Rivkin, Jr.
Counsel of Record 

Andrew M. Grossman 
Lee A. Casey 
Baker Hostetler LLP 
1050 Connecticut Ave., N.W. 
Washington, D.C. 20036 
(202) 861-1731 
Fax: (202)861-1783 
drivkin@bakerlaw.com
Counsel for Amicus Curiae

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964 
OR CALL COLLECT (402) 342-2831

mailto:drivkin@bakerlaw.com


1

QUESTION PRESENTED

Whether Congress’s decision in 2006 to reautho­
rize Section 5 of the Voting Rights Act under the pre­
existing coverage formula of Section 4(b) exceeded its 
authority under the Fifteenth Amendment and thus 
violated the Tenth Amendment and Article IV of the 
United States Constitution.



Page
QUESTION PRESENTED..................................... i
TABLE OF CONTENTS......................................... ii
TABLE OF AUTHORITIES................................... iv
INTEREST OF THE AMICUS CURIAE..............  1
INTRODUCTION AND SUMMARY OF THE AR­

GUMENT ............................................................ 2
ARGUMENT........................................................... 6

I. THE VRA’S PRECLEARANCE REGIME EX­
CEEDS CONGRESS’S AUTHORITY UN­
DER THE FIFTEENTH AMENDMENT.... 6
A. Section 5 Is No Longer an Appropriate

Means of Enforcing the Fifteenth Amend­
ment ....................................................... 7
1. Only “Widespread Resistance to the

Fifteenth Amendment,” and Its Lin­
gering Aftereffects, May Justify this 
“Uncommon Exercise of Power”......  7

2. The “Exceptional Conditions” Pre­
sent in Katzenbach and Lingering 
Aftereffects Present in City of Rome
No Longer Prevail...........................  12

B. The Section 4(b) Coverage Formula Is
No Longer “Rational in ... Practice and 
Theory”................................................... 17

ii

TABLE OF CONTENTS



I l l

TABLE OF CONTENTS -  Continued
Page

II. THE COURT NEED NOT RESOLVE THE 
STANDARD OF REVIEW APPLICABLE 
TO SECTION 2 OF THE FIFTEENTH
AMENDMENT.............................................  23

CONCLUSION.......................................................  28



TABLE OF AUTHORITIES
Page

Cases

Beer v. United States, 425 U.S. 130 (1976)................. 8
Bd. of Trustees of the Univ. of Alabama v. 

Garrett, 531 U.S. 356 (2001).................................. 26
City ofBoeme v. Flores, 521 U.S. 507 (1997) . . . 6, 23, 26, 27
City of Rome v. United States, 446 U.S. 156 

(1980)...............................................................passim
Georgia v. Ashcroft, 539 U.S. 461 (2003).................... 6
Gonzales v. Raich, 545 U.S. 1 (2005).........................23
McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 

(1819)...................................................... 5,23,26, 27
Miller v. Johnson, 515 U.S. 900 (1995)................. 8, 24
Nat’l Fed. Indep. Bus. v. Sebelius, 132 S.Ct.

2566 (2012).............................................................. 23
Nw. Austin Mun. Util. Dist. No. One v. 

Mukasey, 573 F.Supp.2d 221 (D.D.C. 2008)...........12
Nw. Austin Mun. Util. Dist. No. One v. Holder,

557 U.S. 193 (2009).........................................passim
Perry v. Perez, 132 S.Ct. 934 (2012)...........................17
Reno v. Bossier Parish School Bd., 528 U.S. 320 

(2000).......................................................... 16, 25,26
Shaw v. Reno, 509 U.S. 630 (1993)..................... 25, 26
South Carolina v. Katzenbach, 383 U.S. 301 

(1966)...............................................................passim



V

Page
Tennessee v. Lane, 541 U.S. 509 (2004)....4, 5, 16, 18, 22
United States v. Bd. of Comm’rs of Sheffield,

435 U.S. 110 (1978)................................................... 3

Constitutional Provisions and Statutes

U.S. Const, amend. XV.......................................passim
Pub. L. No. 89-110, 79 Stat. 437 (1965)...................... 7
Pub. L. No. 109-246, 120 Stat. 577 (2006)................ 16
42 U.S.C. § 1973 (“Section 2”) ................... 2, 16, 17, 23
42 U.S.C. § 1973 (“Section 3”) ..............................17, 24
42 U.S.C. § 1973b (“Section 4”) ......................... passim
42 U.S.C. § 1973c (“Section 5”).......................... passim

Other Authorities

H.R. Rep. No. 109-478 (2006).................... 4, 12, 14, 16
S. Rep. No. 109-295 (2006).............................13, 14, 15
Evan Caminker, “Appropriate” Means-Ends Con­

straints on Section 5 Powers, 53 Stan. L. Rev.
1127 (2001).............................................................. 27

Ellen Katz, Documenting Discrimination in Vot­
ing, Judicial Findings under Section 2 of the 
VRA Since 1982, 36 U. Mich. J. L. Reform 
643 (2006).......................................................... 16, 22

Nathaniel Persily, The Promise and Pitfalls of 
the New Voting Rights Act, 117 Yale L.J. 174 
(2007)................................................................. 5, 19

TABLE OF AUTHORITIES -  Continued



VI

TABLE OF AUTHORITIES -  Continued
Page

U.S. Census Bureau, Reported Voting and Reg­
istration of the Voting-Age Population, by Sex,
Race and Hispanic Origin, for States: No­
vember 2008............................................................14



1

The National Black Chamber of Commerce is a 
nonprofit, nonpartisan organization dedicated to the 
economic empowerment of African American com­
munities through entrepreneurship. Incorporated in 
1993, it represents nearly 100,000 African American- 
owned businesses, and advocates on behalf of the 2.1 
million black-owned businesses in the United States. 
The Chamber has 190 affiliated chapters located 
throughout the nation, as well as international affili­
ates in, among others, the Bahamas, Brazil, Colom­
bia, Ghana, and Jamaica.

The Chamber rejects the assumption underlying 
Congress’s reauthorization of Section 5 of the Voting 
Rights Act that the exceptional circumstances which 
justified close federal oversight of the electoral prac­
tices of many states and localities in 1965 and 1975 
persist today. They do not. The Chamber and its 
members and affiliates work hand-in-hand with gov­
ernment at all levels to foster an environment in 
which black-owned businesses can take root and 
thrive. The government officials who are partners in 
this effort are people of good faith, and do not deserve

INTEREST OF THE AMICUS CURIAE1

1 Pursuant to Rule 37.2(a), all parties have received at least 
10 days’ notice o f  amicus’s intent to file and have consented to 
the filing o f this brief. In accordance with Rule 37.6, counsel to 
amicus affirm that no counsel for any party authored this brief 
in whole or in part and that no person or entity other than 
amicus, its members, or its counsel made a monetary contribu­
tion to its preparation or submission.



2

to be labeled and treated as presumptive discrim­
inators. Federal control of elections, through the 
“preclearance” process, undermines these officials’ 
authority and flexibility, to the ultimate detriment of 
their constituents -  many of them minorities. Worse, 
Section 5 has been abused in some instances to rein­
force stereotypes regarding minority voters’ prefer­
ences and affiliations, preventing voters who do not 
embody these stereotypes from electing their candi­
dates of choice.

The Chamber supports vigorous enforcement of 
those federal laws that prohibit actual voting discrim­
ination, including the Fifteenth Amendment and 
Section 2 of the Voting Rights Act. By contrast, Sec­
tion 5 is no longer necessary to combat widespread 
and persistent discrimination in voting and now, per­
versely, serves as an impediment to racial neutrality 
in voting and to the empowerment of state and local 
officials who represent minority constituencies.

INTRODUCTION AND 
SUMMARY OF THE ARGUMENT

Katzenbach upheld Section 5 of the Voting Rights 
Act of 1965 (“VRA”) on the basis that “exceptional 
conditions can justify legislative measures not other­
wise appropriate.” South Carolina v. Katzenbach, 383 
U.S. 301, 334 (1966). Though the Fifteenth Amend­
ment had barred voting discrimination over 90 years 
before, “registration of voting-age whites ran roughly



3

50 percentage points or more ahead of Negro registra­
tion” in a group of states that flouted federal law 
through discriminatory administration of voting re­
quirements. Id. at 313. As quickly as Congress acted 
to prohibit particular means of discrimination by 
facilitating case-by-case litigation, these jurisdictions 
contrived new ones, exhibiting an “unremitting and 
ingenious defiance of the Constitution.” Id. at 309. In 
the face of this massive resistance, Congress exer­
cised its Fifteenth Amendment power in an “inventive 
manner” by “shifting] the advantage of time and 
inertia from the perpetrators of the evil to its victims” 
through Section 5’s temporary preclearance regime, 
which it confined to those specific regions where 
“immediate action seemed necessary.” Id. at 327-28.

The exceptional conditions that prevailed in 1965 
and justified “one of the most extraordinary remedial 
provisions in an Act noted for its broad remedies,” 
United States v. Bd. o f Comm’rs of Sheffield, 435 U.S. 
110, 141 (1978) (Stevens, J., dissenting), no longer 
exist. In today’s South, “[vjoter turnout and registra­
tion rates now approach parity. Blatantly discrim­
inatory evasions of federal decrees are rare. And 
minority candidates hold office at unprecedented 
levels.” Nw. Austin Mun. Util. Dist. No. One u. Holder, 
557 U.S. 193, 202 (2009) (.“Nw. Austin”). Indeed, “the 
racial gap in voter registration and turnout is lower 
in the States originally covered by § 5 than it is na­
tionwide.” Id. at 203. The VBA’s success over 45 years 
has been robust and durable; no longer does Section 5 
remain “necessary to preserve the limited and fragile’



4

achievements of the Act.” City of Rome v. United 
States, 446 U.S. 156, 182 (1980).

The logic of Katzenbach and City of Rome does 
not support Congress’s latest 25-year reauthorization 
of the VRA’s preclearance regime. Those cases upheld 
Section 5 as a temporary remedy for contemporan­
eous, widespread discrimination and its lingering 
aftereffects. Katzenbach, 383 U.S. at 334-35; City of 
Rome, 446 U.S. at 176. But as the record most re­
cently compiled by Congress concludes, “many of the 
first generation barriers to minority voter registra­
tion and voter turnout that were in place prior to the 
VRA have been eliminated.” H.R. Rep. No. 109-478, 
at 12 (2006). The Court need not “check Congress’s 
homework to make sure that it has identified suffi­
cient constitutional violations,” Tennessee v. Lane, 541 
U.S. 509, 558 (2004) (Scalia, J., dissenting), but may 
instead rely on Congress’s findings showing that 
“systematic resistance to the Fifteenth Amendment,” 
Katzenbach, 383 U.S. at 328, is long past. For that 
reason, Section 5 is ultra vires and unconstitutional.

Section 4(b)’s coverage formula, based on 40-year- 
old data that fails to account for decades of progress, 
is also unconstitutional under Katzenbach. In 1965, 
Congress used “evidence of actual voting discrimina­
tion” to craft a coverage formula that the Court 
upheld as “rational in both practice and theory.” Id. at 
330. But in 2006, Congress rubberstamped continued 
application of an outdated formula in the face of “con­
siderable evidence that it fails to account for current 
political conditions.” Nw. Austin, 557 U.S. at 203. As



5

to theory, the most one can say in that formula’s 
defense is that leaving it in place did not “disrupt 
settled expectations.” Nathaniel Persily, The Promise 
and Pitfalls of the New Voting Rights Act, 117 Yale 
L.J. 174, 208 (2007). And as to practice, the “correla­
tion between inclusion in § 4(b)’s coverage formula 
and low black registration or turnout ... appears to be 
negative,” as is the correlation between coverage and 
blacks’ holding public office. Pet. App. 83a, 85a (Wil­
liams, J., dissenting). In other relevant respects, “the 
covered jurisdictions appear indistinguishable from 
their covered peers.” Id. at 93a. That they are none­
theless singled out for opprobrium and federal super­
vision is simply irrational and, given the absence of 
“relevant constitutional violations,” cannot be sup­
ported by the Fifteenth Amendment. See Lane, 541 
U.S. at 564 (Scalia, J., dissenting).

To reach these conclusions, the Court need not 
definitively resolve the extent of Congress’s Fifteenth 
Amendment enforcement power, see Nw. Austin, 557 
U.S. at 204, but only apply Katzenbach and City of 
Rome according to their terms. Their application of 
the “necessary and proper” standard of McCulloch v. 
Maryland, 17 U.S. (4 Wheat.) 316, 421 (1819), though 
flexible, requires at least that Congress’s ends be 
legitimate, its means be “plainly adapted” to those 
ends, and its actions comport with the letter and the 
spirit of the Constitution. Congress’s decision to “en­
force” Section 1 of the Fifteenth Amendment by in­
vading states’ power to regulate elections, in the face 
of evidence that any need for such a prophylactic



6

remedy has long passed, falls far short, particularly 
when the means it has chosen violate the Consti­
tution’s letter by rendering race “the predominant 
factor in redistricting.” Georgia v. Ashcroft, 539 U.S. 
461, 491 (2003). Of course, the result is no different 
under the more rigorous “congruence and proportion­
ality” standard of City of Boerne v. Flores, 521 U.S. 
507, 520 (1997).

This case presents a question of great and recur­
ring importance. Delaying review of the issues it 
raises will only exacerbate the iniquities of the pre­
clearance regime. The Court should grant the petition 
for a writ of certiorari and overturn the decision of 
the court below.

ARGUMENT
I. THE VRA’S PRECLEARANCE REGIME EX­

CEEDS CONGRESS’S AUTHORITY UNDER 
THE FIFTEENTH AMENDMENT

The Fifteenth Amendment does not grant Con­
gress plenary power to regulate states’ electoral prac­
tices. As Congress itself recognized in the 1965 Act, 
suspending facially nondiscriminatory voting regula­
tions and subjecting them to review for discrimina­
tory purpose or effect was so novel and aggressive an 
exercise of its enforcement power that it applied the 
VRA’s preclearance requirement only to those ju­
risdictions employing tests or devices to violate the 
Fifteenth Amendment’s affirmative prohibition and 
did so only on an emergency basis, limited to five



7

years. Pub. L. No. 89-110, § 4, 79 Stat. 437, 438 
(1965). This Court upheld that enactment as justified 
by “widespread resistance” to the constitutional pro­
hibition against racial discrimination in voting: “Un­
der the compulsion of these unique circumstances, 
Congress responded in a permissibly decisive man­
ner.” Katzenbach, 383 U.S. at 337, 335. Because those 
unique circumstances are long in the past, and be­
cause voting discrimination is no longer concentrated 
in the areas singled out by its obsolete coverage 
formula, Section 5 no longer serves to enforce the 
right of citizens to vote free of race, color, or previous 
condition of servitude.

A. Section 5 Is No Longer an Appropriate 
Means of Enforcing the Fifteenth Amend­
ment
1. Only “Widespread Resistance to the 

Fifteenth Amendment,” and Its Lin­
gering Aftereffects, May Justify this 
“Uncommon Exercise of Power”

The Court has always held that prophylactic 
exercises of Congress’s Fifteenth Amendment en­
forcement power, and Section 5 in particular, “must 
be justified by current needs.” Nw. Austin, 557 U.S. at 
203. In particular, this means “widespread and per­
sistent discrimination in voting,” Katzenbach, 383 
U.S. at 331, and its lingering effects, City of Rome, 
446 U.S. at 176, 181-82.



8

“Section 5 was directed at preventing a particular 
set of invidious practices that had the effect of un­
doing or defeating the rights recently won by non­
white voters.” Miller v. Johnson, 515 U.S. 900, 925 
(1995) (internal quotation marks and citation omit­
ted). Through discriminatory administration of voting 
qualifications, and an endless procession of tests and 
devices, jurisdictions predominantly within the South 
managed to deprive black citizens of their right to 
vote for nearly a century following the Fifteenth 
Amendment’s enactment.

Beginning in the 1950s, Congress “repeatedly 
tried to cope with the problem by facilitating case- 
by-case litigation against voting discrimination.” 
Katzenbach, 383 U.S. at 313. But that approach 
proved unequal to the Southern states’ “unremitting 
and ingenious defiance of the Constitution.” Id. at 309. 
Jurisdictions could “stay[ ] one step ahead of the fed­
eral courts by passing new discriminatory voting laws 
as soon as the old ones had been struck down.” Beer v. 
United States, 425 U.S. 130, 140 (1976). Each new 
law “remained in effect until the Justice Department 
or private plaintiffs were able to sustain the burden 
of proving that [it], too, was discriminatory.” Id.

Section 5 was directed precisely at this evil:
Congress had found that case-by-case litiga­
tion was inadequate to combat widespread 
and persistent discrimination in voting, be­
cause of the inordinate amount of time and 
energy required to overcome the obstruction­
ist tactics invariably encountered in these



9

lawsuits. After enduring nearly a century 
of systematic resistance to the Fifteenth 
Amendment, Congress might well decide to 
shift the advantage of time and inertia from 
the perpetrators of the evil to its victims.

Katzenbach, 383 U.S. at 328.

And the Katzenbach Court upheld Section 5 on 
precisely that basis, reasoning that “exceptional con­
ditions can justify legislative measures not otherwise 
appropriate.” Id. at 334. The provision, it recognized, 
was an “inventive,” and potentially problematic, as­
sertion of Congress’s Fifteenth Amendment enforce­
ment power, in three respects. First, it automatically 
suspends state and local procedures, prior to any 
judicial review. But this was, the Court recognized, “a 
legitimate response to the problem” of “systematic 
resistance to the Fifteenth Amendment” that was un­
checked by case-by-case litigation. Id. at 328. Second, 
Section 5’s remedies were not uniform throughout the 
nation, in keeping with the principle of equal sover­
eignty, but confined “to a small number of States 
and political subdivisions” identified by formula. Id. 
This, too, was permissible in principle: Congress 
could appropriately “cho[o]se to limit its attention to 
the geographic areas where immediate action seemed 
necessary.” Id.

Finally, the Court considered, and approved, Sec­
tion 5’s substantive effect, of suspending the opera­
tion of voting regulations pending federal review for 
discriminatory purpose or effect. This “uncommon



10

exercise of power,” it explained, was justified only by 
the “exceptional circumstances” of the day:

Congress knew that some of the States cov­
ered by § 4(b) of the Act had resorted to the 
extraordinary stratagem of contriving new 
rules of various kinds for the sole purpose of 
perpetuating voting discrimination in the 
face of adverse federal court decrees. Con­
gress had reason to suppose that these 
States might try similar maneuvers in the 
future in order to evade the remedies for vot­
ing discrimination contained in the Act itself. 
Under the compulsion of these unique cir­
cumstances, Congress responded in a per­
missibly decisive manner.

Id. at 334-35.

City of Rome affirmed Katzenbach and upheld 
the 1975 reauthorization of Section 5. The Court re­
jected the argument that a ban on electoral changes 
that are discriminatory in effect necessarily exceeds 
Congress’s Fifteenth Amendment enforcement power. 
Under that power, Congress may “attack! ] the per­
petuation of earlier, purposeful racial discrimination, 
regardless of whether the practices they prohibited 
were discriminatory only in effect.” Id. at 177. In this 
instance, Congress “could rationally have concluded 
that, because electoral changes by jurisdictions with a 
demonstrable history of intentional racial discrimina­
tion in voting create the risk of purposeful discrimi­
nation, it was proper to prohibit changes that have a 
discriminatory impact.” 446 U.S. at 177. Section 5



11

was therefore an appropriate means of enforcing the 
Fifteenth Amendment by “preventing States from un­
doing or defeating the rights recently won by Ne­
groes.” Id. at 178 (internal quotation marks omitted).

The Court also upheld Congress’s seven-year re­
authorization of Section 5, on the basis that it re­
mained “necessary to preserve” what were then “the 
limited and fragile achievements of the Act.” Id. at 
182 (internal quotation marks omitted). Although rec­
ognizing that progress had been made, the Court 
deferred to Congress’s finding, supported by electoral 
data, that the effects of a century of widespread dis­
crimination persisted even a decade after the VRA’s 
enactment:

Significant disparity persisted between the 
percentages of whites and Negroes registered 
in at least several of the covered juris­
dictions. In addition, though the number of 
Negro elected officials had increased since 
1965, most held only relatively minor posi­
tions, none held statewide office, and their 
number in the state legislatures fell far short 
of being representative of the number of 
Negroes residing in the covered jurisdictions. 
Congress concluded that, because minority 
political progress under the Act, though “un­
deniable,” had been “modest and spotty,” ex­
tension of the Act was warranted.

Id. at 180-81. On that basis, “Congress’ considered de­
termination that at least another 7 years of statutory 
remedies were necessary to counter the perpetuation



12

of 95 years of pervasive voting discrimination [was] 
both unsurprising and unassailable.” Id. at 182.

2. The “Exceptional Conditions” Present 
in Katzenbach and Lingering After­
effects Present in City of Rome No 
Longer Prevail

The same cannot be said of Congress’s 2006 
reauthorization of Section 5 in the face of evidence 
demonstrating that “[t]he extensive pattern of dis­
crimination that led the Court to previously uphold 
§ 5 as enforcing the Fifteenth Amendment no longer 
exists.” Nw. Austin, 557 U.S. at 226 (Thomas, J., con­
curring).

Indeed, Congress was forced to concede that 
“many of the first generation barriers to minority 
voter registration and voter turnout that were in 
place prior to the VRA” -  i.e., the very types of tests, 
devices, and “ingenious defiance” that Section 5 was 
enacted to block -  “have been eliminated.” H.R. Rep. 
No. 109-478, at 12. “Blatantly discriminatory eva­
sions of federal decrees are rare,” Nw. Austin, 557 
U.S. at 202, and the instances of allegedly discrimi­
natory conduct identified by Congress are few in 
number and widely scattered. See Nw. Austin Mun. 
Util. Dist. No. One v. Mukasey, 573 F.Supp.2d 221, 
252-54, 256-62 (D.D.C. 2008) (summarizing legislative 
record); Pet. App. 29a-30a (providing five examples, 
four involving towns or counties, over 11 years);



13

S. Rep. No. 109-295, at 13 (2006) (identifying a total 
of six published cases since 1982 where a court has 
found unconstitutional voting discrimination against 
minorities). They do not amount to anything near 
the kind of “widespread and persistent discrimination 
in voting” that Katzenbach held to justify Section 5. 
383 U.S. at 328 (citing “a century of systematic re­
sistance to the Fifteenth Amendment”).

Reflecting this lasting progress, “the rate of DOJ 
objections to preclearance requests has decreased 
from over 4% in the first five years after the Voting 
Rights Act, to between 0.05% and 0.23% from 1983 
to 2002,” Persily, supra, at 199, to .05% from 1998 
to 2002, Pet. App. 34a. These data on actual en­
forcement actions rebut any possible argument “that 
public officials stand ready, if given the chance, to 
again engage in concerted acts of violence, terror, 
and subterfuge in order to keep minorities from vot­
ing.” Nw. Austin, 557 U.S. at 226 (Thomas, J., concur­
ring).

The record is also clear that the kind of lingering 
aftereffects of a century of voting discrimination that 
the City of Rome Court held to support reauthoriza­
tion of Section 5 are too in the past. “[T]he number of 
African-Americans who are registered and who turn 
out to cast ballots has increased significantly over the 
last 40 years, particularly since 1982,” and “[i]n some 
circumstances, minorities register to vote and cast



14

ballots at levels that surpass those of white voters.” 
H.R. Rep. No. 109-478, at 12. In particular:

[I]n seven of the covered States, African- 
Americans are registered at a rate higher 
than the national average. Moreover, in Cali­
fornia, Georgia, Mississippi, North Carolina, 
and Texas, black registration and turnout in 
the 2004 election ... was higher than that 
for whites. In Louisiana and South Carolina, 
African-American registration was 4 per­
centage points lower than that for whites -  a 
rate identical to the national average.

S. Rep. No. 109-295, at 11. Even in the farthest 
outlier, Virginia, black voter registration in 2004 was 
only 7 percentage points lower than the national 
average, id., and had nowhere near the “significant 
disparity” between black and white voting rates that 
persisted through the decade following enactment of 
the VRA." Id.; see City of Rome, 446 U.S. at 180; cf. 
Katzenbach, 383 U.S. at 313 (in several Southern 
states, black registration was 50 percentage points 
behind white registration).

Moreover, by 2008, black registration and voting rates in 
Virginia exceeded than those for whites. U.S. Census Bureau, 
Reported Voting and Registration o f the Voting-Age Population, 
by Sex, Race and Hispanic Origin, for States: Novem ber 2008, at 
tbl. 4b, http^/www.census.gov/hliesVvAv/socdemo/voting/'publications'' 
p20/2008/tables.html.

http://www.census.gov/hliesVvAv/socdemo/voting/'publications''


15

Similar gains are evident in the number of black 
elected officials:

As of 2000, more than 9,000 African- 
Americans have been elected to office, an 
increase from the 1,469 officials who held 
office in 1970. As of 2004, 43 African- 
Americans currently serve in the United 
States Congress, with 42 individuals serving 
in the United States House of Representa­
tives, and one serving in the United States 
Senate. At the State level, more than 482 
African-Americans serve in State legislatures, 
with thousands more African-Americans serv­
ing in county, township, and other locally 
elected positions.

S. Rep. No. 109-296, p. 18. No longer do the number 
of black elected officials in covered jurisdictions “f[a]ll 
far short of being representative” of the black popula­
tions of covered jurisdictions. City of Rome, 446 U.S. 
at 181.

In sum, Congress’s own findings, supported by 
Census data, demonstrate that, far from “limited and 
fragile,” City of Rome, 446 U.S. at 182, the achieve­
ments of the VRA have been robust and durable, par­
ticularly over the past three decades. There is no 
possibility that the jurisdictions subject to Section 5, 
unbridled from the preclearance requirement, could 
act to “perpetuate[ ] the effects of past discrimina­
tion,” id. at 176, when those effects have long since 
dissipated.

Recognizing that the exceptional circumstances 
previously found to support Section 5 no longer



16

prevail, Congress based its reauthorization on evi­
dence of so-called “second-generation barriers” quite 
unlike the type of purposeful discrimination that 
motivated Section 5’s enactment. See Pub. L. No. 109- 
246, § 2(b)(4), 120 Stat. 577, 577-78 (2006). Much of 
this evidence concerns “racially polarized voting” (i.e., 
“block voting”), not any kind of state action to deny 
the right to vote. See H.R. Rep. No. 109-478, pp. 34- 
35. It is irrelevant. Lane, 541 U.S. at 564 (Scalia, J., 
dissenting) (requiring “an identified history of rele­
vant constitutional violations”). The remainder con­
sists of Section 2 vote dilution litigation. Pet. App. 
26a-29a, 36a-38a. This evidence, or course, does not 
even suggest the kind of purposeful discrimination 
that the Court held to support Section 5; it does not 
indicate any violation of the Fifteenth Amendment, 
see Reno v. Bossier Parish School Bd., 528 U.S. 320, 
334 n.3 (2000) (“Bossier IF’); and, as described further 
below, it does not support Congress’s application of 
Section 5 to particular jurisdictions. See Ellen Katz, 
Documenting Discrimination in Voting, Judicial Find­
ings under Section 2 of the VRA Since 1982, 36 U. 
Mich. J. L. Reform 643, 677-78 (2006) (identifying all 
of 12 lawsuits finding intentional discrimination in 
covered jurisdictions, and 21 in non-covered jurisdic­
tions, between 1982 and 2006).

Finally, absent the sort of widespread discrimina­
tion and “obstructionist tactics” that prevailed in 
1965, traditional litigation, such as under Section 2, 
is certainly not “inadequate” to protect the right to 
vote. See Katzenbach, 383 U.S. at 328. In addition to



17

the Section 3 “bail-in” mechanism, which authorizes 
judicial preclearance of voting regulations in juris­
dictions found to have engaged in discrimination, 
“courts may always use the standard remedy of a 
preliminary injunction to prevent irreparable harm 
caused by delay” in Section 2 litigation. Pet. App. 77a- 
78a (Williams, J., dissenting) (citing Perry v. Perez, 
132 S.Ct. 934, 942 (2012)). No evidence even sug­
gests that jurisdictions (subject to Section 5 or not) 
have acted to evade Section 2 judgments or other­
wise stymie judicial enforcement of the right to vote. 
See generally Katz, supra (comprehensively surveying 
Section 2 litigation between 1982 and 2006).

Without question, “exceptional conditions can 
justify legislative measures not otherwise appropriate” 
under Congress’s remedial authority. Katzenbach, 383 
U.S. at 334. But for Congress to persist long past the 
date those conditions are remedied, as it has with its 
reauthorization of Section 5, is to seize for itself a 
new and improper power that the Constitution re­
serves to the states.

B. The Section 4(b) Coverage Formula Is 
No Longer “Rational in ... Practice and 
Theory”

Section 4(b)’s coverage formula comes nowhere 
near satisfying Katzenbach’s bare-minimum require­
ment that preclearance coverage be “rational in both 
practice and theory.” Based on 40-year-old data that 
“fails to account for current political conditions,” Nw.



18

Austin, 557 U.S. at 203, it blatantly violates “the 
requirement that Congress may impose prophylactic 
§ [2] legislation only upon those particular States in 
which there has been an identified history of relevant 
constitutional violations.” Lane, 541 U.S. at 564 
(citing cases).

Katzenbach recognized that Section 4(b) was un­
usual, and potentially problematic, because it con­
fines its remedies (and those of Section 5) to a 
discrete set of states and political subdivisions. 383 
U.S. at 328. It therefore required that Congress 
distinguish between covered and non-covered juris­
dictions in a rational manner, so as “to justify the 
application to [covered] areas of Congress’ express 
powers under the Fifteenth Amendment.” Id. at 329. 
The Section 4(b) formula was rational in practice, 
because it applied two characteristics routinely 
shared by jurisdictions that had engaged in actual 
voting discrimination -  “the use of tests and devices 
for voter registration, and a voting rate in the 1964 
presidential election at least 12 points below the na­
tional average.” Id. at 330. And it was rational in 
theory, because those characteristics are logically 
probative of discrimination: “Tests and devices are 
relevant to voting discrimination because of their 
long history as a tool for perpetrating the evil; a low 
voting rate is pertinent for the obvious reason that 
widespread disenfranchisement must inevitably af­
fect the number of actual voters.” Id. Overall, the 
coverage formula’s rationality was “confirm[ed]” by 
the fact that it exempted no state or jurisdiction that



19

had engaged in recent discrimination involving tests 
or devices -  in other words, coverage could be jus­
tified on both an absolute and relative basis. Id. at 
331.

By contrast, attempting to identify present-day 
vote discrimination by reference to 40-year-old data is 
not rational in either respect. It is certainly not 
rational in theory. “[T]he misuse of tests and devices 
... was the evil for which the new remedies were 
specifically designed,” id., but voting practices in 
place at the time President Richard Nixon was 
reelected are not probative of any current discrimina­
tion. Ending “widespread and persistent discrimina­
tion in voting” was Congress’s broader objective, id., 
but obstinate refusal to consider more recent experi­
ence guarantees that, even if met, that objective will 
have no legal consequence whatsoever. “In identifying 
past evils, Congress obviously may avail itself of in­
formation from any probative source,” id. at 330, but 
it may not bury its head in the sand. And the Court 
has never suggested that political expedience is suf­
ficient to sustain an otherwise irrational exercise of 
enforcement power. See Persily, supra, at 208-09 (al­
tering the coverage formula “would likely have led to 
the complete unraveling of the bill”); id. at 210 (ex­
panding coverage to “large and politically powerful 
states ... would have sunk the bill”); id. at 211 
(“Whatever its drawbacks, the current coverage 
formula had the virtue of already having been upheld 
by the Supreme Court,” decades prior.).



20

Even more stunning is Section 4(b)’s complete 
failure in practice to identify current vote discrimina­
tion. Voter registration and turnout data, which were 
central to Katzenbach, actually undermine any argu­
ment for the formula’s current rationality:

There appears to be no positive correlation 
between inclusion in § 4(b)’s coverage for­
mula and low black registration or turnout. 
Quite the opposite. To the extent that any 
correlation exists, it appears to be negative -  
condemnation under § 4(b) is a marker of 
higher black registration and turnout. Most 
of the worst offenders -  states where in 2004 
whites turned out or were registered in sig­
nificantly higher proportion than African- 
Americans — are not covered. These include, 
for example, the three worst -  Massa­
chusetts, Washington, and Colorado. And 
in Alabama and Mississippi, often thought 
of as two of the worst offenders, African- 
Americans turned out in greater proportion 
than whites.

Pet. App. 83a (Williams, J., dissenting) (citing Census 
Bureau voting data).

Data on black elected officials also demonstrates 
the formula’s completely arbitrary pattern of cover­
age:

Covered jurisdictions have far more black of­
ficeholders as a proportion of the black popu­
lation than do uncovered ones. Of the ten 
states with the highest proportion of black 
elected officials relative to population, eight



21

are covered states, with the top five all being 
fully covered states (Virginia, Louisiana, 
South Carolina, Mississippi, and Alabama).
Nor can the poor scores achieved by some un­
covered states be chalked up to small black 
populations. Illinois, Missouri, Delaware and 
Michigan, where African-Americans comprise 
at least 10% of the [citizen voting-age popu­
lation], all [score worse than] every one of 
the states fully covered by § 4(b).

Pet. App. 85a (Williams, J., dissenting) (citing Census 
Bureau and election data). Based on data from recent 
decades, “no one could credibly argue that the [black 
officeholder] numbers are proof of the coverage 
scheme’s continued rationality.” Id.

Taken as a whole, the same types of data on 
which the Court relied in Katzenbach and City of 
Rome do not show that vote discrimination is “con­
centrated in the jurisdictions singled out for preclear­
ance.” Nw. Austin, 557 U.S. at 203. In fact, they show 
the opposite. Congress’s choice, notwithstanding that 
fact, to continue to subject those jurisdictions to the 
preclearance requirement is therefore arbitrary, ir­
rational, and in excess of its Fifteenth Amendment 
enforcement power.

Again, recognizing that Section 4(b) could not be 
upheld under the reasoning of Katzenbach and City of 
Rome, Congress attempted to bolster the record by 
pointing to “second-generation barriers” to voting, 
principally Section 2 litigation, which are not neces­
sarily probative of Fifteenth Amendment violations.



22

But Section 2 cases since the last reauthorization of 
the VRAin 1982 do not support Section 4(b)’s contin­
ued application:

The five worst uncovered jurisdictions, in­
cluding at least two quite populous states 
(Illinois and Arkansas), have worse records 
than eight of the covered jurisdictions.... Of 
the ten jurisdictions with the greatest num­
ber of successful § 2 lawsuits, only four are 
covered.

Pet. App. 93a (Williams, J., dissenting). Moreover, of 
those very few cases that resulted in a finding of 
intentional discrimination — the only result conceiv­
ably relevant to the Katzenbach analysis -  far more 
arose in non-covered jurisdictions (21 cases) than in 
covered jurisdictions (12 cases). Katz, supra, at 677.

* * *
Lacking evidence of any meaningful correlation 

between Section 4(b)’s coverage formula and actual 
Fifteenth Amendment violations, and unable or un­
willing to devise a formula suited to current condi­
tions, Congress attempted to backfill the legislative 
record with largely irrelevant evidence of Section 2 
cases, and even those data undermine the case for the 
formula’s rationality. But reliable evidence, accepted 
by Congress and long held relevant by this Court, 
confirms that the coverage formula “fails to account 
for current political conditions,” Nw. Austin, 557 U.S. 
at 203, and fails to confine Section 5’s remedy to 
those particular states” that have engaged in vote 

discrimination, Lane, 541 U.S. at 564 (Scalia, J., dis­
senting). It therefore exceeds Congress’s authority.



23

II. THE COURT NEED NOT RESOLVE THE 
STANDARD OF REVIEW APPLICABLE TO 
SECTION 2 OF THE FIFTEENTH AMEND­
MENT

The foregoing analysis demonstrates that the 
Court need not resolve the difficult question of the 
proper standard of review for exercises of Congress’s 
Fifteenth Amendment enforcement power. See Nw. 
Austin, 557 U.S. at 204 (“That question has been 
extensively briefed in this case, but we need not re­
solve it.”). Whether under the more permissive 
McCulloch standard, which the Court claimed to ap­
ply in Katzenbach and City of Rome, or the poten­
tially more rigorous “congruence and proportionality” 
standard of Boerne, the result is the same: the Fif­
teenth Amendment cannot support the VRA’s arbi­
trary and unnecessary preclearance regime.

Though permissive, the McCulloch standard does 
not accord Congress plenary power. Instead, it re­
quires that Congress, at the least, legislate with 
rationality and within the limitations of the Consti­
tution. McCulloch, 17 U.S. (4 Wheat.) at 421; accord 
Gonzales v. Raich, 545 U.S. 1, 39 (2005) (Scalia, J., 
concurring); Nat’l Fed. Indep. Bus. v. Sebelius, 132 
S.Ct. 2566, 2647 (2012) (Scalia, Kennedy, Thomas, 
Alito, JJ., dissenting) (concluding that insurance- 
coverage mandate was not plainly adapted, and there­
fore not “necessary,” to effectuate insurance-market



24

reforms). As should be apparent, the preclearance 
regime fails on both counts.

First, it is anything but “plainly adapted” to the 
unarguably legitimate end of eradicating both wide­
spread intentional discrimination in voting and the 
perpetuation of the effects of such discrimination. See 
City of Rome, 446 U.S. at 178. As described above, 
such discrimination is now rare and scattered, calling 
into serious question the appropriateness of any pre­
clearance process other than one limited to particular 
jurisdictions’ violations of the Reconstruction Amend­
ments -  in other words, the VRA’s Section 3(b). And 
the effects of previous discrimination have long since 
dissipated, as demonstrated by blacks’ robust voting 
participation rates and substantial gains in elected 
offices. But even more damning is the preclearance 
regime’s perfectly arbitrary coverage, which bears no 
relation to any meaningful indicia of vote discrimina­
tion, much less actual acts of discrimination. Based 
on decades-old data, the coverage formula is plainly 
adapted only to Congress’s political expedience, and 
not to any facts on the ground that might justify 
Section 5’s extraordinary burden.

Second, the preclearance regime stands in viola­
tion of both the letter and the spirit of the Constitu­
tion. Section 5, even prior to its 2006 amendment, 
was recognized to be in “tension with the Fourteenth 
Amendment” to the extent that it was used as a “com­
mand that States engage in presumptively unconsti­
tutional race-based districting.” Miller, 515 U.S. at



25

927. Congress’s 2006 amendments, even while leav­
ing untouched the Section 4(b) coverage formula, ig­
nored this Court’s warnings and amended Section 5 
to mandate race-conscious districting. Under the new 
Section 5, covered jurisdictions must prove that any 
change will not “diminish!] the ability” of minorities 
“to elect their preferred candidates of choice,” 42 
U.S.C. §§ 1973c(b),(d), and is not premised on a “dis­
criminatory purpose” of declining to adopt other chang­
es that would have strengthened minority voting 
power, § 1973c(c).

As a result of these amendments, “[pjreclearance 
now has an exclusive focus -  whether the plan dimin­
ishes the ability of minorities (always assumed to be 
a monolith) to ‘elect their preferred candidates of 
choice,’ irrespective of whether policymakers (includ­
ing 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 concen­
tration spawns.” Pet. App. 75a (Williams, J., dissent­
ing). Moreover, “[b]y inserting discriminatory purpose 
into § 5, and requiring covered jurisdictions affirma­
tively to prove its absence, Congress appears to have 
... restored ‘the Justice Department’s implicit com­
mand that States engage in presumptively unconsti­
tutional race-based districting.’ ” Id. at 76a (quoting 
Bossier II, 528 U.S. at 336). Section 5 now requires, in 
effect, that minority voters be lumped together with 
other persons with whom they “may have little in 
common ... but the color of their skin.” Shaw v. Reno, 
509 U.S. 630, 647 (1993). This in itself perpetuates



26

and enforces “impermissible stereotypes” and “bears 
an uncomfortable resemblance to political apartheid.” 
Id. And mandating that covered jurisdictions dis­
criminate among their own citizens on the basis of 
race surely “exacerbate[s] the substantial federalism 
costs that the preclearance procedure already exacts.” 
Bossier II, 528 U.S. at 336.3

Finally, even the most cursory analysis shows 
that the preclearance regime, which cannot with­
stand McCulloch’s standard, surely fails “congruence 
and proportionality” review. Under Boerne, a court 
must “identify with some precision the scope of the 
constitutional right at issue,” Bd. of Trustees of the 
Univ. of Alabama v. Garrett, 531 U.S. 356, 365 (2001); 
examine whether Congress identified a history and 

pattern” of constitutional violations, id. at 368; and 
then find “congruence and proportionality between 
the injury to be prevented or remedied and the means 
adopted to that end.” Boerne, 521 U.S. at 520. Here, a 
“history and pattern” of constitutional violations is 
lacking, and the Court has rejected looking decades

Although these issues were not argued below as independ­
ent grounds for invalidation o f Sections 4(b) and 5, they are un­
questionably implicated by the question presented, both under 
the McCulloch standard (actions m ust “consist with the letter 
and spirit o f the constitution” ) and the Boerne standard (actions 
must be congruent and proportional), and are therefore properly 
raised by the petition for a writ o f certiorari. See Pet. App. at 77a 
(Williams, J., dissenting) (To evaluate Section 4 (b)’ s constitu­
tionality, one must necessarily first assess the severity o f the 
consequences o f coverage under § 4(b) (i.e., subject to § 5 as it 
exists today.)”).



27

into the past to take notice of conditions that fortu­
nately no longer prevail, in support of current and 
substantial burdens on federalism. Nw. Austin, 557 
U.S. at 203. Measured against current evidence of 
intentional discrimination in voting, the preclearance 
regime is “so out of proportion to a supposed remedial 
or preventive object that it cannot be understood 
as responsive to, or designed to prevent, unconsti­
tutional behavior.” Boerne, 521 U.S. at 509.4 Nor is 
its haphazard coverage congruent to any recent 
pattern of actual voting discrimination.

Of course, it is only logical that an enactment 
which is not “plainly adapted” to enforcement of a 
constitutional right, or outside the “letter and spirit 
of the constitution,” also lacks “congruence and pro­
portionality” with respect to violations of that right. 
See generally Evan Caminker, “Appropriate” Means- 
Ends Constraints on Section 5 Powers, 53 Stan. L. Rev. 
1127, 1153-58 (2001). A statute that fails McCulloch 
therefore fails Boerne. To decide this case, the Court 
need not choose between the two.

4 A nd this infirm ity is only exacerbated by the most recent 
amendments to Section 5.



28

CONCLUSION
For the foregoing reasons, this Court should 

grant the petition for a writ of certiorari.

Respectfully submitted,
David B. Rivkin, Jr.

Counsel o f Record 
Andrew M. Grossman 
Lee A. Casey 
Baker Hostetler LLP 
1050 Connecticut Ave., N.W. 
Washington, D.C. 20036 
(202)861-1731 
Fax: (202) 861-1783 
drivkin@bakerlaw. com
Counsel for Amicus Curiae

August 2012