Shelby County v. Holder Brief Amici Curiae

    No. 12-96

3ht
Supreme Court of tfje fEntteti States:

---------------- « -----------------

SH E L B Y  COUNTY, A LA B A M A ,

Petitioner,
v.

ERIC H. HOLDER, JR., A TTO R N E Y G ENER AL  
OF THE U N ITED  STATES OF AM ER IC A, ET AL.,

Respondents.

---------------- ♦----------------

On Writ Of Certiorari To The 
United States Court Of Appeals For 

The District Of Columbia Circuit

---------------- ♦----------------

BRIEF OF AMICI CURIAE JURISDICTIONS 
THAT HAVE BAILED OUT IN SUPPORT OF 

RESPONDENTS AND URGING AFFIRMANCE

---------------- « ----------------

Lucy Phillips 
205 Academy Drive 
Abingdon, V A  24210  
(276) 525-1370

Counsel for Amicus Curiae 
Washington County, VA

Clayward C. Corry, Jr.
117 S. Battleground Avenue 
Kings Mountain, NC 28086  
(704) 739-3696

Counsel for Amicus Curiae 
Kings Mountain, NC

J. Gerald Hebert 
Counsel of Record 

Paul S. Ryan 
Tara Malloy 
Megan McAllen 
Campaign Legal Center 
215 E Street, NE  
Washington, DC 20002  
(202) 736-2200  
ghebert@campaignlegal 

center.org

Counsel for Amici Curiae

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



TABLE OF CONTENTS

TABLE OF AUTHORITIES..................................... iii
STATEMENT OF INTEREST................................  1
SUMMARY OF ARGUM ENT.................................  2
ARGUMENT...............................................................  5

I. The History of Bailouts under the Voting
Rights Act Demonstrates the Careful Tai­
loring of the A ct .............................................. 5
A. Throughout the History of the Voting

Rights Act, Bailout Has Helped Ensure 
That the Coverage Formula Reflected 
Changing N eed s...................................... 6

B. Petitioner’s Attempts to Refute the
“Nexus” Between Bailout and the 
Coverage Formula Are U navailing..... 17

II. The Specific Bailout Experiences of Amici
Confirm the Viability of the Bailout 
Mechanism....................................................... 21
A. The Bailout Process Is Both Admin­

istratively Feasible and Readily 
Achievable................................................ 21

B. The Bailout Process Is Affordable and
Cost-Effective............................................  25

III. Amici Supporting Petitioner Have Made 
Incorrect Factual Assertions Regarding 
the Bailout Provisions..................................  27

CONCLUSION.............................................................  33

Page



11

TABLE OF CONTENTS -  Continued
Page

APPENDIX A Jurisdictions Bailed Out of
Section 5 Coverage After August 5, 1984....... App. 1



Ill

Cases:

Adarand Constructors, Inc. v. Staples, 228 F.3d
1147 (10th Cir. 2000)................................................. 19

Apache Cnty. v. United States, 256 F. Supp. 903
(D.D.C. 1966)................................................................. 7

City ofBoerne v. Flores, 521 U.S. 507 (1997)............... 3
City o f Rome v. United States, 446 U.S. 156 

(1980)...............................................................................9
Contractors’ Ass’n o f Eastern Pennsylvania, Inc. 

v. City o f Philadelphia, 6 F.3d 990 (3d Cir.
1993)..............................................................................19

Gaston Cnty. v. United Suites, 288 F. Supp. 678 
(D.D.C. 1968)..................................................................7

Gonzales v. Raich, 545 U.S. 1 (2005)...........................19
New York v. United States, 65 F.R.D. 10 (D.D.C.

1974), a ff’d on other grounds sub. nom. 
NAACP v. New York, 413 U.S. 345 (1973).................8

Northwest Austin Mun. Util. Dist. No. One v. 
Holder, 573 F. Supp. 2d 221 (D.D.C. 2008).............13

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

Shelby Cnty. v. Holder, 679 F.3d 848 (D.C. Cir.
2012)............................................................................. 14

South Carolina v. Katzenbach, 383 U.S. 301 
(1966).............................................................................. 2

Tennessee v. Lane, 541 U.S. 509 (2004)....................... 19

TABLE OF AU TH O RITIES

Page



IV

Texas v. United States, No. 11-1303, ----
F. Supp. 2d ___, 2012 WL 3671924 (D.D.C.
Aug. 28, 2012), appeal pending, No. 12-496 
(S. Ct.) (filed Oct. 19, 2012)......................................21

Torres v. Sachs, 381 F. Supp. 309 (S.D.N.Y.
1974).............................................................................8

United States v. Stevens, 130 S. Ct. 1577 (2010).......21

Consent Decrees, Court F ilings and Ongoing 
Litigation:
Consent Judgment and Decree (proposed), 

Browns Valley Irrigation District v. Holder,
No. 12-01597 (D.D.C. Jan. 2, 2013)..........................14

New Hampshire u. Holder, No. 12-01854
(D.D.C. filed Nov. 15, 2012).......................................15

Consent Judgment and Decree (proposed), New 
Hampshire v. Holder, No. 12-01854 (D.D.C.
Dec. 21, 2012)....................................................... 15, 31

Status Rpt., New Hampshire v. Holder, No. 12- 
01854 (D.D.C. Jan. 22, 2013).................................... 15

Consent Judgment and Decree, City o f Manas­
sas Park v. Holder, C.A. No. 11-749 (D.D.C.
Aug. 3, 2011), available at http://www.
justice.gov/crt/about/vot/misc/manassas_pk_
cd.pdf............................................................................ 18

TABLE OF AU TH O RITIES -  Continued
Page

http://www


V

Consent Judgment and Decree, Prince William 
Cnty. v. Holder, No. 12-14 (D.D.C. Apr. 10,
2012), available at http://www.justice.gov/ 
crt/about/vot/misc/prince_wm_cd.pdf.........16, 17, 26

TABLE OF AU TH O RITIES -  Continued

Page

Consent Judgment and Decree, Shenandoah 
Cnty. v. Reno, No. 99-992 (D.D.C. Oct. 15,
1999), available at http://www.justice.gov/ 
crt/about/vot/misc/shenandoah_cd.pdf....................31

City o f Wheatland v. Holder, No. 13-54 (D.D.C. 
filed Jan. 14, 2013)......................................................14

Statutes:

Act of Aug. 6, 1975, Pub. L. No. 94-73, Tit. I, 89 
Stat. 400 ................................................................. 7, 10
§ 201, 89 Stat. 400.........................................................9
§ 203, 89 Stat. 401-402................................................ 8

Fannie Lou Hamer, Rosa Parks, and Coretta 
Scott King Voting Rights Act Reauthorization 
and Amendments Act of 2006, Pub. L. No. 
109-246, 120 Stat. 577 ................................................. 9

Voting Rights Act of 1965, Pub. L. No. 89-110,
79 Stat. 437 ....................................................................2
§ 3(c), 79 Stat. 437.........................................................6
§ 4(a), 79 Stat. 438 ............................................ 2, 6, 32
§ 4(b), 79 Stat. 438................................................ 2, 19
§ 5, 79 Stat. 439 passim

http://www.justice.gov/


V I

Voting Rights Act of 1965, 42 U.S.C. §§ 1973 et
seq................................................................................ ^
42 U.S.C. § 1973b(a).....................................................3
42 U.S.C. § 1973b(a)(l).......................................10, 20
42 U.S.C. § 1973b(a)(l)(A).........................................20
42 U.S.C. § 1973b(a)(l)(F).........................................11
42 U.S.C. § 1973b(a)(l)(F)(iii)................................... 20
42 U.S.C. § 1973b(a)(2).............................................. 20
42 U.S.C. § 1973b(a)(4).......................................15,24
42 U.S.C. § 1973b(a)(9).......................................22, 32
42 U.S.C. § 1973b(b).................................................... 3
42 U.S.C. § 1973c..........................................................2

Voting Rights Act Amendments of 1970, Pub. L.
No. 91-285, § 3, 84 Stat. 314................................ 7, 15

Voting Rights Act Amendments of 1982, Pub. L.
No. 97-205, 96 Stat. 131.....................9, 10, 12, 13, 14
§ 2, 96 Stat. 131-32.....................................................10

Legislative and Administrative Materials:

36 Fed. Reg. 5,809 (Mar. 27, 1971)................................7
39 Fed. Reg. 16,912 (May 10, 1974)...............................7
40 Fed. Reg. 43,746 (Sept. 23, 1975)..............................8
40 Fed. Reg. 49,422 (Oct. 22, 1975)...............................8
41 Fed. Reg. 783 (Jan. 5, 1976)...................................... 8

TABLE OF AU TH O RITIES -  Continued
Page



V l l

41 Fed. Reg. 34,329 (Aug. 13, 1976).............................. 8
H.R. Rep. No. 89-439 (1965), reprinted in 1965 

U.S.C.C.A.N. 2437........................................................ 5
Voting Rights Act: Evidence o f Continuing Need: 

Hearing Before the Subcomm. on the Con­
stitution o f the House Judiciary Comm.,
109th Cong. (Mar. 8, 2006) (H ebert)...................... 14

Voting Rights Act: An Examination o f the Scope 
and Criteria for Coverage Under the Special 
Provisions o f the Act: Hearing Before the 
Subcomm. on the Constitution o f the House 
Judiciary Comm., 109th Cong. (2005) 
(statement of J. Gerald Hebert, former Act­
ing Chief, Civil Rights Division, U.S. Dep’t of 
Justice), available at https://bulk.resource.org/

TABLE OF AU TH O RITIES -  Continued

Page

gpo.gov/hearings/109h/24034.pdf............................ 25
S. Rep. No. 97-417 (1982), reprinted in 1982 

U.S.C.C.A.N. 177....................................................... 11

Other A uthorities:

Duncan Adams, Localities Seek Voting Rights 
Act Bailout, Roanoke Times, Jan. 16, 2011, 
http://www.roanoke.com/news/roanoke/wb/
273946..........................................................................25

Brief of Amici Curiae Jurisdictions That Have 
Bailed Out Under the Voting Rights Act in 
Support of Appellees, Northwest Austin Muni­
cipal Utility District Number One v. Holder,
557 U.S. 193 (2009), 2009 WL 815227...... 24, 25, 26

https://bulk.resource.org/
http://www.roanoke.com/news/roanoke/wb/


V l l l

Travis Crum, Note, The Voting Rights Act’s 
Secret Weapon: Pocket Trigger Litigation and 
Dynamic Preclearance, 119 Yale L. J. 1992 
(2010) .........................................................................................6

Corey Dade, Communities Find Relief From 
Voting Rights Act, NPR News (Aug. 11, 2012), 
http://rn.npr.org/news/front/1583815417single 
Page=true....................................................................26

Paul F. Hancock and Lora L. Tredway, The 
Bailout Sta?idard o f the Voting Rights Act:
An Incentive to End Discrimination, 17 Urb.
L. J. 379 (1985)......................................................... 8, 9

J. Gerald Hebert, An Assessment o f the Bailout 
Provisions o f the Voting Rights Act, in Voting 
Rights Act Reauthorization of 2006: Perspec­
tives on Democracy, Participation, and Power 
(Ana Henderson ed., 2007)....................................... 24

J. Gerald Hebert, Bailout Under the Voting 
Rights Act, in America Votes! (Benjamin E. 
Griffith ed., 2008).....................'..................................27

J. Gerald Hebert & Renata E. B. Strause, The 
Future o f the Voting Rights Act, 64 Rutgers 
L. Rev. 953 (2012)........................................................16

U.S. Census Bureau, 2010 Demographic Profile:
Prince William County, Va., http://www. 
census.gov/popfinder/?fl=51153................................26

TABLE OF AU TH O RITIES -  Continued
Page

http://rn.npr.org/news/front/1583815417single


IX

U.S. Dept, of Justice, Civil Rights Division,
Letter to Dan Head, Esq. (Aug. 25, 2008), 
available at http://www.justice.gov/crt/about/ 
vot/sec_5/ltr/l_082508.php........................................28

U.S. Dep’t of Justice, Section 4 of the Voting 
Rights Act, http://www.justice.gov/crt/about/vot/ 
misc/sec_4.php (last visited Jan. 31, 2013)..... 12, 13

Richard A. Williamson, The 1982 Amendments 
to the Voting Rights Act: A Statutory Analysis 
o f the Revised Bailout Provision, 62 Wash U 
L. Q. 1 ,40(1984)........................................................ 13

Virginia County Successfully Bails Out’ o f  
Voting Rights Act Preclearance Requirements, 
RedistrictingOnline.org (Apr. 12, 2012), http://
redistrictingonline.org/VApwcbailout041212.

.............................................................................. 26

TABLE OF AU TH O RITIES -  Continued

Page

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


1

Amici curiae are several jurisdictions1 2 (hereafter 
“Amici Bailed Out Jurisdictions”) that over the last 
decade have bailed out from coverage under Section 5 
of the Voting Rights Act of 1965 (“Act”), 42 U.S.C. 
§§ 1973, et seq. Amici Bailed Out Jurisdictions have a 
special interest in the bailout issues raised in this 
case and a unique perspective on these issues. Each 
jurisdiction has gone through the bailout process, 
each has been found eligible to bail out by the United 
States Department of Justice and the D.C. courts, 
and each has secured a bailout judgment.

Amici Bailed Out Jurisdictions believe that their 
views about the bailout process and how it actually 
works will inform the Court in a way none of the ex­
isting parties can do. Indeed, except for Respondents 
Holder, et al., and amicus curiae Merced County, 
California, none of the other parties or amici has ever 
been a party to a bailout lawsuit or has sought a 
bailout since the most recent amendments to the 
bailout process in 1982. Amici speak from the stand­
point of jurisdictions that, for roughly 45 years, have

1 No counsel for a party authored any part of this brief. No 
person or other entity other than amici or their counsel contrib­
uted monetarily to the preparation and submission of this brief. 
Correspondence from counsel of record for Petitioner and 
Respondents consenting to the filing of this brief have been filed 
with the Clerk of this Court.

2 Amici curiae herein are the City of Kings Mountain, North 
Carolina; Washington County, Virginia; and Larnie M. 
Flannagan, General Registrar of Voters, Essex County, Virginia.

STATEMENT OF INTEREST1



2

made preclearance submissions under Section 5 of 
the Voting Rights Act, 42 U.S.C. § 1973c, and have 
successfully availed themselves of the bailout option. 
Amici therefore can offer a unique perspective on the 
operation of the bailout provisions and the actual 
procedures and costs associated with the process.

-------------- ♦---------------

SU M M AR Y OF A R G U M E N T

Congress enacted the Voting Rights Act of 1965 
(“1965 Act”), Pub. L. No. 89-110, 79 Stat. 437, codified 
as amended at 42 U.S.C. §§ 1973, et seq., to remedy 
“the blight of racial discrimination in voting” that had 
taken root in the country’s electoral process. South 
Carolina v. Katzenbach, 383 U.S. 301, 308 (1966). To 
this end, Congress crafted provisions requiring cer­
tain jurisdictions to “preclear” changes to their voting 
practices and procedures, 1965 Act § 5, 79 Stat. 439, 
and then “reverse-engineered” the coverage formula 
so that the preclearance requirements would cover 
those jurisdictions where there was evidence of voting 
discrimination. Id. § 4(b), 79 Stat. 438. Congress 
understood, however, that application of the objective 
criteria in the coverage formula had the potential to 
capture areas that had not engaged in discriminatory 
voting procedures. The bailout mechanism was de­
signed to address this possible overbreadth by allow­
ing jurisdictions to terminate their coverage by 
demonstrating that they had not used a test or device 
for a discriminatory purpose. Id., § 4(a), 79 Stat. 438.



3

Although the bailout provisions have undergone 
revision and significant liberalization in subsequent 
amendments to the Act, their fundamental objective 
remains the same: to ensure that the Act is tailored to 
impose current burdens only where there are current 
needs. See Northwest Austin Mun. Util. Dist. No. One 
v. Holder, 557 U.S. 193, 203 (2009) (NAMUDNO). The 
bailout mechanism adds a dynamic element to the 
Act’s coverage, allowing the geographic scope of Sec­
tion 5 to be modified on an ongoing basis, according to 
the real-time submissions of covered jurisdictions. 
Bailout is thus an integral part of the coverage 
formula and, as this Court has recognized, provides 
further assurance that “Congress’ means are propor­
tionate to [its] ends.” City o f Boerne v. Flores, 521 
U.S. 507, 533 (1997).

Petitioner denies that there is a “nexus” between 
bailout under the current Act and the coverage for­
mula, but this claim is contradicted by the structure 
and history of the bailout provisions. Pet. Br. at 57. 
The current requirements of the bailout provisions 
reflect the criteria of the coverage formula: both 
inquire as to the use of discriminatory “tests or 
devices,” and look to voter registration rates and 
voter turnout. 42 U.S.C. § 1973b(a), (b). See Section 
I.B. infra. Furthermore, throughout the history of the 
Act, jurisdictions in different states of varying sizes, 
political compositions and demographics have suc­
cessfully bailed out of Section 5, belying Petitioner’s 
contention that bailout serves to tailor the scope of



4

the coverage formula “only at the margin.” Pet. Br. at 
54-55. See Section I.A. infra.

Petitioners also claim that the bailout option is in 
fact illusory, and too burdensome and expensive for 
most jurisdictions to achieve. Pet. Br. at 54. But this 
is decidedly not the experience of amici.

Amici Bailed Out Jurisdictions found the bailout 
process both administratively feasible and cost- 
effective. Amici simply had to gather the necessary 
information and data supporting bailout from records 
we maintained in the ordinary course of business, 
submit these materials to the U.S. Department of 
Justice, and publicize the bailout in our community 
media and post offices. After we were notified by the 
Department of Justice that our jurisdiction had met 
the bailout requirements, our legal counsel filed suit 
and the necessary bailout papers in court. As for 
expense, our experience is that the total cost of ob­
taining a bailout was approximately $5,000, which 
includes staff time gathering the relevant data and 
the filing of bailout documents in court. See Section II 
infra.

Further, contrary to Petitioner’s suggestion, 
bailout is also achievable even if a jurisdiction discov­
ers during the bailout process that one or more of its 
political subunits is not in full compliance with the 
Act. In the course of the bailout process, numerous 
jurisdictions have discovered that some of their 
political subunits had inadvertently failed to timely 
submit minor voting changes for Section 5 review, but



5

were able to resolve this issue with a prompt pre­
clearance submission of the changes to the Depart­
ment of Justice. See Section III infra.

In any event, even if petitioners had raised valid 
objections to the bailout mechanism, any argument 
that specific criteria are unduly burdensome should 
be brought in an as-applied challenge, where specific 
facts can be developed, rather than a facial challenge 
to the statute as a whole.

For all these reasons, this Court should again 
uphold Section 5 and the Act’s coverage formula.

-------------- ♦---------------

A R G U M E N T

I. THE HISTORY OF BAILOUTS UNDER THE  
VOTING  RIGHTS ACT DEM ONSTRATES  
THE CAREFUL TAILORING OF THE ACT.

When Congress first enacted the 1965 Act, it 
understood that the coverage formula might capture 
areas that had not engaged in racially discriminatory 
voting procedures. See H.R. Rep. No. 89-439, at 15 
(1965), reprinted in 1965 U.S.C.C.A.N. 2437, 2445. 
The ability of jurisdictions to bail out was meant to 
address that potential overbreadth by affording any 
jurisdiction “an opportunity to exempt itself” from the 
coverage formula. Id.3 The bailout provision has thus

The potential for under-inclusivity of the coverage formula 
was tackled by the so-called “pocket trigger,” which allows for 
additional jurisdictions to be subjected to the preclearance 

(Continued on following page)



6

always been central to the Act’s tailoring and Peti­
tioner has acknowledged this. Pet. Br. at 3.

A. Throughout the H istory of the Voting  
R ights A ct, B ailout H as H elped E nsure  
That the C overage Form ula R eflected  
C hanging N eeds.

Underscoring the connection between bailout and 
the Act’s tailoring, bailout was originally conceived as 
the means by which the preclearance requirements 
would expire for covered jurisdictions.

The bailout provision of the Voting Rights Act of 
1965 provided that an exemption would be granted 
upon a decision by a three-judge panel of the U.S. 
District Court for the District of Columbia that the 
jurisdiction had not used a voting test or device for 
the purpose or with the effect of discriminating on the 
basis of race for the preceding five years. 1965 Act 
§ 4(a), 79 Stat. 438. There was no automatic expira­
tion for Section 5 in the original enactment. Because 
the Act suspended the use of any voting test or device 
in the covered jurisdictions -  regardless of racially dis­
criminatory intent or effect -  once five years passed 
after enactment, the covered jurisdictions would

requirements upon a finding of Fifteenth Amendment violations 
by a federal court. 1965 Act, § 3(c), 79 Stat. 437; see also Travis 
Crum, Note, The Voting Rights Act’s Secret Weapon: Pocket 
Trigger Litigation and Dynamic Preclearance, 119 Yale L. J. 
1992, 2006-09 (2010).



7

automatically meet the bailout requirements. Thus, 
when Congress enacted the Act in 1965, it assumed 
that jurisdictions would be able to bail out at the 
conclusion of five years. The required five-year non­
discrimination showing was subsequently extended to 
10 years in the Voting Rights Act Amendments of 
1970, Pub. L. No. 91-285, § 3, 84 Stat. 314, and then 
to 17 years in the 1975 Amendments, Act of Aug. 6, 
1975 (1975 Amendments), Pub. L. No. 94-73, Tit. I, 89 
Stat. 400.

In the first two years of the Act’s existence, three 
counties in Arizona, one county in North Carolina and 
one in Idaho, and the State of Alaska all bailed out. 
See Apache Cnty. v. United States, 256 F. Supp. 903, 
906 (D.D.C. 1966) (Arizona); Gaston Cnty. v. United 
States, 288 F. Supp. 678, 694-95 (D.D.C. 1968) (refer­
encing the bailouts of Wake County, North Carolina; 
Elmore County, Idaho; and the State of Alaska). Each 
was able to show that the test or device that had led 
to coverage under Section 5 in 1965 either was no 
longer in use or had been applied without a racially 
discriminatory purpose and effect.

The changes to the coverage formula in 1970 
brought the three counties in Arizona, the one in 
Idaho, and four jurisdictions in Alaska back under the 
Act’s preclearance requirements, and newly covered 
an additional five counties in Arizona, two counties in 
California, three counties in New York and one in 
Wyoming, and towns in Connecticut, Massachusetts, 
Maine, and New Hampshire. See 36 Fed. Reg. 5,809 
(Mar. 27, 1971); 39 Fed. Reg. 16,912 (May 10, 1974);



8

see also Paul F. Hancock & Lora L. Tredway, The 
Bailout Standard o f the Voting Rights Act: An Incen­
tive to End Discrimination, 17 Urb. L. J. 379, 395-96 
(1985). Shortly thereafter, Alaska and New York 
bailed out the jurisdictions within their boundaries. 
New York v. United States, 65 F.R.D. 10, 11 (D.D.C. 
1974) (discussing Bronx, Kings and New York Coun­
ties), a ff ’d on other grounds sub. nom. NAACP v. New 
York, 413 U.S. 345 (1973). New York’s success, how­
ever, was short-lived. After a federal court in New 
York found that the once-covered counties had dis­
criminated against Puerto Rican voters, see Torres v. 
Sachs, 381 F. Supp. 309, 312-13 (S.D.N.Y. 1974), the 
counties were recovered and have remained subject to 
the preclearance requirements ever since.

In 1975, the coverage formula under Section 4 of 
the Act was revised to include and protect language 
minority groups. 1975 Amendments, § 203, 89 Stat. 
401-402. As a result, counties in California, Colorado, 
Florida, Arizona, New Mexico, North Carolina, Okla­
homa, and South Dakota, townships in Michigan, and 
the entire states of Texas, Arizona, and Alaska became 
subject to Section 5’s requirements. See 40 Fed. Reg. 
43,746 (Sept. 23, 1975) (Arizona was covered state­
wide because of the prevalence of Spanish language 
minorities and at the county level to protect American 
Indian language minorities); 41 Fed. Reg. 34,329 
(Aug. 13, 1976); 40 Fed. Reg. 49,422 (Oct. 22, 1975); 
41 Fed. Reg. 783 (Jan. 5, 1976). For those jurisdic­
tions, bailout required a showing that for the last 10 
years, they had not conducted English-only elections



9

for the purpose or with the effect of discriminating 
against voters based on race, color or membership in 
a language minority group. 1975 Amendments, § 201, 
89 Stat. 400. The newly covered counties in New 
Mexico and Oklahoma quickly bailed out, since they 
were able to show that their language minority popu­
lations were also fluent in English. City o f Rome v. 
United States, 446 U.S. 156, 198 n.8 (1980) (referenc­
ing bailout actions brought by New Mexico and Okla­
homa); see also Hancock & Tredway, supra, at 403. 
Successful bailouts in the late 1970s and early 1980s 
also retailored the amended coverage formula by ex­
empting the covered jurisdictions in Maine, Wyominĝ  
Massachusetts, and Connecticut from the preclear­
ance requirements. Hancock & Tredway, supra, at 
403. Each jurisdiction proved that for 17 years before 
the bailout lawsuit, it had not employed a voting test 
or device for the purpose or with the effect of discrim­
inating on the basis of race.

The 1982 Amendments to the Voting Rights Act 
strengthened the relationship between the bailout 
provisions and the coverage formula’s tailoring. 
Voting Rights Act Amendments of 1982, Pub. L. No. 
97-205, 96 Stat. 131. The 2006 reauthorization of the 
Act retained the bailout provisions as amended in 
1982 and they remain in place today. See Fannie Lou 
Hamer, Rosa Parks, and Coretta Scott King Voting 
Rights Act Reauthorization and Amendments Act of 
2006, Pub. L. No. 109-246, 120 Stat. 577.

Since 1982, bailout has not been tied to the 
duration of the preclearance provisions. Moreover, the



10

bailout option is no longer limited to only those juris­
dictions that have never engaged in racially discrimi­
natory voting practices in the first place. Instead, the 
1982 Amendments established bailout as the means 
by which once-bad actors could show that they had 
taken action to eliminate discriminatory voting prac­
tices and procedures, and had taken affirmative steps 
to afford equal opportunity for all voters in their 
jurisdiction. Thus, the bailout provisions specifically 
address the discriminatory conditions that had led to 
coverage in the first place.

The 1982 Amendments also shortened to 10 years 
(from 17 years in the 1975 Amendments) the time 
frame for states and political subdivisions to show 
that they no longer engaged in discriminatory voting 
practices and afforded equal opportunities for all 
persons to register and to vote. 1982 Amendments, 
§ 2, 96 Stat. 131-32. This reduction dramatically 
expanded the number of jurisdictions potentially 
eligible for bailout.4 The revised bailout standard 
provided additional incentives for jurisdictions to

4 Showing non-discrimination in voting required that for 10 
years prior to fding a bailout lawsuit, the jurisdiction and all 
political subunits of government within its boundaries had not 
used a test or device for the purpose or with the effect of denying 
or abridging the right to vote on account of race, color, or 
membership in a minority language group; had not been subject 
to a final judgment or entered into a settlement that resulted in 
the jurisdiction abandoning the use of a voting practice chal­
lenged on grounds of racial discrimination; and had not received 
an objection to or denial of preclearance for a submitted voting 
change. See 42 U.S.C. § 1973b(a)(l).



11

comply with the Act and to take “positive steps to 
increase the opportunity for full minority participa­
tion in the political process.” S. Rep. No. 97-417, at 2 
(1982), reprinted in 1982 U.S.C.C.A.N. 177, 179.5 It 
also expanded the jurisdictions that could seek 
bailout by allowing counties or cities with voter 
registration responsibilities within a covered state to 
seek bailout on their own. Id.

When the Act was amended in 1982 to permit 
local governments to bail out, the Congress rightly 
believed that “[a] substantial number of counties may 
be eligible to bail out when the new procedure goes 
into effect.” Id. at 60, 1982 U.S.C.C.A.N. at 238. 
Indeed, one voting rights expert “presented a chart 
compiled by the Joint Center for Political Studies . . . 
show[ing] a reasonable projection of 25 percent of the 
counties in the major covered states being eligible to 
file for bailout on the basis of their compliance with 
the objective criteria in the compromise bill.” Id. And 
the Assistant Attorney General for the Civil Rights 
Division at the time, William Bradford Reynolds, 
testified to the same effect; his projected number of 
jurisdictions eligible to bail out in 1982 was “virtually 
identical to those in the Joint Center’s estimate.” Id.

Specifically, jurisdictions seeking bailout must show that 
they have eliminated voting procedures and methods of election 
that “inhibit or dilute equal access to the electoral process”; have 
“engaged in constructive efforts to eliminate intimidation and 
harassment” of voters; and have engaged in other efforts such as 
expanding voter registration opportunities and appointing 
minority election officials. 42 U.S.C. § 1973b(a)(l)(F).



12

Despite these projections, not a single jurisdiction 
sought to bail out in the 13 years after the 1982 
Amendments took effect on August 5, 1984. From 
Amici Bailed Out Jurisdictions’ own experiences, the 
explanation for this is two-fold. First, most covered 
jurisdictions were unaware of bailout and many 
remain so. Second, those few jurisdictions that were 
aware of the bailout option perceived it as too costly 
and too cumbersome (neither of which is true, as we 
explain below).

In 1997, the City of Fairfax, Virginia, became the 
first covered jurisdiction to bail out under the criteria 
set forth in the 1982 Amendments. Between 1997 and 
2009, another 69 jurisdictions, all in Virginia, like­
wise bailed out.6

In 2009, this Court decided NAMUDNO, inter­
preting the Act’s bailout provisions to permit any and 
all political subdivisions subject to preclearance to 
seek a bailout. 557 U.S. at 211. Prior to 2009, it was 
believed that only those covered jurisdictions that

6 The 69 jurisdictions (not including NAMUDNO) that bailed 
out between 1984 and 2009 under the 1982 bailout provisions 
are listed on the website of the Respondent. See U.S. Dep’t of 
Justice, Section 4 of the Voting Rights Act, http://www.justice. 
gov/crt/about/vot/misc/sec_4.php (last visited Jan. 31, 2013). 
While the decision in NAMUDNO referred to just 17 bailed out 
jurisdictions between 1982 and 2009, see 557 U.S. at 211, that 
figure represented only the cities and counties that registered 
voters which had bailed out under the 1982 criteria, and failed 
to include all the political subdivisions within those 17 counties 
and cities that had bailed out with them. Id.

http://www.justice


13

registered voters (i.e., counties and cities7) could seek 
a bailout. See, e.g., Northwest Austin Mun. Util. Dist. 
No. One v. Holder, 573 F. Supp. 2d 221, 231-35 
(D.D.C. 2008); Richard A. Williamson, The 1982 
Amendments to the Voting Rights Act: A  Statutory 
Analysis o f the Revised Bailout Provision, 62 Wash. 
U. L. Q. 1, 40 (1984).

Since this Court’s decision in NAMUDNO, the 
number and rate of jurisdictions seeking and obtain­
ing a bailout has increased dramatically in several 
respects. See Appendix A.8 First, since 2009, including 
NAMUDNO, almost twice as many political subdivi­
sions have bailed out (127) than in the entire period 
from 1982 to 2009 (69). See id.; see also http://www. 
justice.gov/crt/about/vot/misc/sec_4.php. Second, the 
pace of bailouts has increased substantially since the 
2009 NAMUDNO decision, as more political subunits 
are now bailout eligible and there is greater public 
knowledge of bailout availability due to the decision. 
Indeed, in addition to those jurisdictions that have 
bailed out since 2009 listed in Appendix A, more than 
a dozen jurisdictions are presently pursuing a bailout 
in the U.S. District Court for the District of Columbia 
or in a pre-filing process with the Department of

7 Virginia is the only one of the 16 covered states in which 
cities register voters. In the remaining states, registration is 
conducted at the county level.

For the Court’s convenience, amici have prepared a chart 
listing all of the bailouts since the 1982 Amendments to the 
Voting Rights Act went into effect.

http://www


14

Justice.9 Third, the geographic range of jurisdictions 
seeking or obtaining a bailout has expanded from just 
one state before 2009 (Virginia) to jurisdictions in six 
states since 2009 (Alabama, California, Georgia, North 
Carolina, Texas, and Virginia). See Appendix A. Since 
the amended bailout standard took effect in 1984, not 
a single eligible jurisdiction seeking bailout has been 
rejected. See, e.g., Shelby Cnty. v. Holder, 679 F.3d 
848, 882 (D.C. Cir. 2012).10

9 The following California jurisdictions have bailout lawsuits 
pending in the U.S. District Court for the District of Columbia: 
Browns Valley Irrigation District and City of Wheatland. See 
Consent Judgment and Decree (proposed), Browns Valley 
Irrigation District v. Holder, No. 12-01597 (D.D.C. Jan. 2, 2013), 
and City of Wheatland v. Holder, No. 13-54 (D.D.C. filed Jan. 14, 
2013). Amici herein are aware of the following additional 
jurisdictions currently seeking bailout and in negotiations with 
the Department of Justice: Yuba County (CA) Water Agency; 
Linda County (CA) Water District; Olivehurst (CA) Public 
Utility District; North Yuba County (CA) Water Agency; Isle of 
Wight County, VA; Hanover County, VA; City of Falls Church, 
VA.

10 Shelby County also makes the argument that even if a 
covered jurisdiction can satisfy the bailout criteria, “it remains 
subject to Section 5’s ‘clawback’ provision, which essentially 
requires a jurisdiction to continue to satisfy the statutory 
criteria for bailout for an additional ten-year period before 
becoming fully non-covered.” Pet. Br. at 56 (internal citations 
omitted). It is worth noting that there has not been a single 
instance of the “clawback” provision being invoked since the 
1982 Amendments went into effect. See Voting Rights Act: 
Evidence of Continuing Need: Hearing Before the Subcomm. on 
the Constitution of the House Judiciary Comm., at 2864, 109th 
Cong. (Mar. 8, 2006) (Hebert).



15

Equally impressive is the fact that, since this 
Court’s 2009 decision in NAMUDNO, jurisdictions of 
all sizes and varying racial compositions have bailed 
out. For example, for the first time since the 1982 
Amendments went into effect, a State has now 
sought a bailout on behalf of its covered towns and 
townships. On November 15, 2012, the State of New 
Hampshire, sought a bailout for its covered political 
subunits. See New Hampshire v. Holder, No. 12- 
01854 (D.D.C. filed Nov. 15, 2012) (three-judge 
court).11 If the State succeeds, less than twenty per­
cent of jurisdictions covered by the 1970 Amendments 
to the Act will remain subject to the preclearance 
requirement. Of the remaining covered jurisdictions, 
three bailed out but were recovered because of a 
subsequent finding of racial discrimination in a relat­
ed case, and all but four have received objections from 
the Attorney General to proposed voting changes

11 New Hampshire filed its bailout lawsuit in the D.C. 
district court on November 15, 2012. On December 21, 2012, the 
State and the United States Attorney General filed a joint 
motion to approve a consent judgment and decree granting New 
Hampshire and its covered towns with a bailout. Consent Judg­
ment and Decree (proposed), New Hampshire v. Holder, No. 12- 
01854 (D.D.C. Dec. 21, 2012). The parties asked the three-judge 
court to wait thirty days to enter the consent judgment and 
decree, during which time New Hampshire and its covered towns 
could publicize the bailout settlement, as required by 42 U.S.C. 
§ 1973b(a)(4). New Hampshire and its covered towns and town­
ships publicized the settlement and filed a report with the Court 
on January 22, 2013, advising the Court that it had publicized 
the bailout settlement as required by the Act. Status Rpt., New 
Hampshire v. Holder, No. 12-01854 (D.D.C. Jan. 22, 2013).



16

submitted for preclearance. J. Gerald Hebert & 
Renata E. B. Strause, The Future o f the Voting Rights 
Act, 64 Rutgers L. Rev. 953, 969 (2012).

In 2012, Merced County, California, successfully 
obtained a bailout for itself and 84 political subunits 
in the County, making it the jurisdiction with the 
most political subdivisions to bail out in one action.12 
Thus, in that one bailout action, Merced County 
achieved a bailout for itself and more political subu­
nits (84) than had bailed out in the 27 years prior to 
this Court’s 2009 decision in NAMUDNO.

Jurisdictions with sizeable minority populations 
also have bailed out since 2009, including at least two 
majority-minority political subdivisions: the City of 
Manassas Park, Virginia, which bailed out in 2011; 
and Prince William County, Virginia, which bailed 
out in 2012.13 Fourth, a jurisdiction with one of the

12 Merced County has filed a brief amicus curiae in this case 
explaining its unique experience with the bailout provisions. See 
Brief of Merced County, California As Amicus Curiae In Support 
of No Party at 36-37 (Jan. 2, 2013).

13 According to the consent decree granting Manassas Park 
a bailout, the City’s population as reported in the 2010 census 
was 32.5% Hispanic, 13.5% black and 9.9% Asian. See Consent 
Judgment and Decree, City of Manassas Park v. Holder, C.A. 
No. 11-749 (D.D.C. Aug. 3, 2011), available at http://www. 
justice.gov/crt/about/vot/misc/manassas_pk_cd.pdf. The consent 
decree granting Prince William County’s bailout describes the 
County’s population, as reported in the 2010 census, as 20.3%  
Hispanic, 20.6% black, 8.6% Asian, and 0.5% Native American. 
See Consent Judgment and Decree, Prince William Cnty. v.

(Continued on following page)

http://www


17

largest populations of any of the counties subject to 
the Act’s preclearance requirements of (Prince Wil­
liam County) has now bailed out. According to its 
bailout agreement, the County’s population exceeded 
400,000 persons. See Consent Judgment and Decree, 
Prince William Cnty. v. Holder, No. 12-14 (D.D.C. Apr. 
10, 2012), available at http://www.justice.gov/crt/ 
about/vot/misc/prince_wm_cd.pdf.

As the foregoing history attests, numerous juris­
dictions in multiple states have availed themselves of 
the bailout option, and the process has been achieva­
ble for jurisdictions with varying sizes, political 
subdivisions and racial compositions. Bailout has 
thus not only benefitted the individual jurisdictions 
that can show a record of non-discrimination, but it 
has also provided an effective mechanism for tailoring 
the statute to impose current burdens only where 
there are current needs.

B. P etition er’s A ttem pts to Refute the  
“N exus” B etw een B ailout and the 
C overage Form ula Are U navailing.

Petitioner first argues that the bailouts that have 
occurred since NAMUDNO “cannot support the valid­
ity of Congress’s judgment” in the 2006 reauthoriza­
tion because they were not part of the legislative 
record. Petition for Writ of Certiorari at 34-45 & n.5;

Holder, No. 12-14 (D.D.C. Apr. 10, 2012), available at 
http ://www.justice, gov/ crt/about/vot/misc/prince_wm_cd. pdf.

http://www.justice.gov/crt/
http://www.justice


18

see also Pet. Br. at 53 (“The statute’s constitutionality 
must be measured against the legislative record 
alone.”). Shelby County misses two key points. First 
and foremost, all of the bailouts that have occurred 
subsequent to 2006 -  both before and after the 
NAMUDNO decision -  are the predictable and in­
tended result of the 1982 bailout provisions retained 
by the 2006 Reauthorization. This evidence is clearly 
relevant to this Court’s review of the coverage formu­
la. Congress has always intended for the bailout 
provision to be linked to the coverage formula. Be­
cause the bailout mechanism is the means by which 
the coverage formula is tailored and updated on an 
ongoing basis, its operation is critical to an evaluation 
of Congress’s tailoring of the Act. Second, in avoiding 
the constitutional question in NAMUDNO, the Court 
interpreted the Act to allow smaller subunits to bail 
out. Although Congress did not consider the bailout of 
those particular types of jurisdictions as part of the 
tailoring mechanism in 1965 or 1982, by making 
bailout available to smaller jurisdictions, the Court 
lessened the current burdens imposed by the Act. In 
making a determination about Section 5’s constitu­
tionality, this Court should reject the arguments of 
those, like Petitioner, urging the Court to ignore 
the impact of its NAMUDNO decision expanding 
bailouts in assessing the constitutional validity of 
the Voting Rights Act.14 Ultimately, the Court will

14 Since Congress factored the prospective availability of 
bailout into its decision to reauthorize the Act in 2006, it is 

(Continued on following page)



19

have to evaluate whether its interpretation of the 
bailout provisions in NAMUDNO is working -  which 
amici here contend it is -  and should remain 
in place. Both the post-2006 and post -NAMUDNO 
bailouts, therefore, are relevant in making that 
assessment.

Petitioner also incorrectly casts the bailout 
process as unrelated to Congress’s decision to subject 
the covered jurisdictions to Section 5 preclearance 
requirements in the first place. See Pet. Br. at 22. But 
the bailout criteria are directly tied to the coverage 
formula in fundamental ways. The original coverage 
formula focused on jurisdictions with discriminatory 
“tests or devices” as a prerequisite to registering to 
vote, along with depressed voter registration rates 
and voter turnout. See 1965 Act, § 4(b), 79 Stat. 438. 
The current bailout criteria specifically require a 
showing that there has been no test or device applied 
by the covered jurisdiction “for the purpose or with 
the effect of denying or abridging the right to vote 
on account of race or color[,]” and contain other

misleading to characterize information about post-2006 bailouts 
as “post-enactment evidence” -  but either way, the lower court 
was right to consider it. To determine the scope of Congress’s 
authority under its Fourteenth Amendment enforcement 
powers, this Court has considered post-enactment evidence, as 
have multiple circuit courts. See, e.g., Tennessee v. Lane, 541 
U.S. 509, 524-25 & nn.6-8, 11, 13-14 (2004); cf. Gonzales v. 
Raich, 545 U.S. 1, 19 n.28, 21 n.31 (2005). See also Adarand 
Constructors, Inc. v. Staples, 228 F.3d 1147, 1166 (10th Cir. 
2000); Contractors’ Ass’n of Eastern Pennsylvania, Inc. v. City of 
Philadelphia, 6 F.3d 990, 1004 (3d Cir. 1993).



20

provisions requiring the jurisdiction seeking bailout 
to show that it has “expanded opportunity for conven­
ient registration and voting for every person of voting 
age” and to “present evidence of minority participa­
tion, including evidence of the levels of minority 
group registration and voting, changes in such levels 
over time, and disparities between minority-group 
and non-minority-group participation.” 42 U.S.C. 42 
U.S.C. §§ 1973b(a)(l)(A), (l)(F)(iii), (2). Thus, the key 
to obtaining a bailout is to present a ten-year record 
of non-discriminatory voting practices and proce­
dures, based on an objective set of facts prescribed in 
the bailout statute. A covered jurisdiction that has a 
clean record of non-discriminatory voting procedures 
over a ten-year period will likely also be able to 
produce, as amici here have done, facts that show 
“expanded opportunity for registration and voting” 
and be quite likely bailout eligible. Thus, it is incor­
rect to say that the bailout provisions are unrelated 
to the coverage formula.

Finally, Petitioner claims that the bailout criteria 
are improper, subjective and onerous. As we note infra, 
that has not been the experience of jurisdictions like 
ours that have undergone the bailout process. Equally 
important, arguments about specific applications of 
the bailout criteria should be made in an as-applied 
challenge, not in the facial challenge that Petitioner 
has mounted here. Petitioner has not limited its 
constitutional attack to the factual circumstances in



21

Shelby County, but rather asks this Court to strike 
down Section 5 in all its applications.15 This Court has 
made clear that “[t]o succeed in a typical facial attack, 
[a challenger] would have to establish ‘that no set of 
circumstances exists under which [the challenged 
law] would be valid,’ or that the statute lacks any 
‘plainly legitimate sweep.’ ” United States v. Stevens, 
130 S. Ct. 1577, 1587 (2010) (internal citations omit­
ted). Petitioner’s arguments regarding the difficulty 
of the bailout process or its burdens on the County 
are more properly the subject of an as-applied chal­
lenge rather than the facial one it brings here.

II. TH E SPECIFIC B AILO U T EXPER IEN CES  
OF A M ICI CO N FIR M  THE V IA B ILITY OF 
TH E B AILO U T M ECH AN ISM .

A. The Bailout Process Is Both Adm inistra­
tively Feasible And Readily Achievable.

As we explain below, the process of obtaining 
a bailout is neither administratively difficult nor 
burdensome.

10 In view of recent decisions in the U.S. District Court for 
the District of Columbia finding that covered jurisdictions 
recently engaged in purposeful discrimination with respect to 
their statewide redistricting plans, see, e.g., Texas v. United
States, No. 11-1303, ___F. Supp. 2 d ____ , 2012 WL 3671924, at
*76 1150 (D.D.C. Aug. 28, 2012) (three-judge court) (concluding 
that “the record demonstrates purposeful discrimination in the 
re-drawing of [Senate District] 10”), appeal pending, No. 12-496 
(S. Ct.) (filed Oct. 19, 2012), it is difficult to see how Section 5 
could be found unconstitutional in all of its applications.



22

Once amici herein decided to explore bailout 
under the Voting Rights Act, the first step was to 
assemble data and information from our offices to 
determine if we met the bailout criteria set forth in 
the Act. Because the Act permits the Attorney Gen­
eral to “consent[ ] to an entry of judgment . . . upon 
a showing of objective and compelling evidence,” 42 
U.S.C. § 1973b(a)(9), amici provided the Attorney 
General with the voting and election data we had 
assembled.

The data and information we gathered included 
documents that we maintain in the ordinary course of 
business or that was easily obtainable, such as the 
number of voters in each voting precinct, the number 
of voters who turned out at the polls in past elections, 
and the number of minority persons who have worked 
at the voter registration office, electoral board, or 
served as poll officials. We also gathered past election 
results, particularly for those elections that involved 
minority candidates. Finally, we assembled informa­
tion on the various ways people in our communities 
may register to vote. Often, voter registration proce­
dures and other information relating to voting and 
elections in amici’s possession are set forth on our 
governmental websites and thus instantly accessible.

We also regularly maintain in our files corre­
spondence we have sent to and received from the 
United States Department of Justice regarding Sec­
tion 5 preclearance. These preclearance letters were a 
useful starting point to showing we have complied in



23

a timely fashion with the preclearance requirements 
under the Act.

The final data we collected and provided to the 
U.S. Attorney General to support our bailout request 
was information tending to show that all persons 
within our jurisdictions enjoy an equal opportunity to 
participate effectively in the political process. To do 
this, amici simply gathered publicly available census 
data available on the Internet; the method of election 
(e.g., at-large or from districts) for our jurisdiction 
and for all elective bodies within our borders; and the 
location and convenience of voter registration sites 
and polling place locations for our voters. Other 
relevant data we assembled that shed light on the 
level of minority participation included identification 
of minority candidates who ran in recent elections, 
election results showing how minority candidates 
fared in elections, and the number of minority group 
members who have worked either in the voter regis­
tration office or served as poll workers.

Attorneys in the U.S. Department of Justice then 
conducted an independent investigation of amici’s 
compliance with the bailout criteria. The Justice De­
partment attorneys visited amici’s offices, reviewed 
our voting and elections records, and conducted inter­
views of local leaders within minority communities.

As required by the Act, amici informed the public 
of our intentions to seek bailout. The statute’s formal 
notice requirement is minimal; jurisdictions must 
publicize their intentions to file a bailout lawsuit



24

in the local media and post offices. See 42 U.S.C. 
§ 1973b(a)(4).

After the community had been notified of the 
jurisdiction’s intent to seek a bailout, we filed our 
bailout lawsuits in the U.S. District Court for the 
District of Columbia. Although prior agreement by 
the Justice Department to a jurisdiction’s eligibility is 
not required before filing, it significantly reduces the 
cost of the bailout suit compared to more typically 
adversarial litigation. See J. Gerald Hebert, An 
Assessment o f the Bailout Provisions o f the Voting 
Rights Act, in Voting Rights Act Reauthorization of 
2006: Perspectives on Democracy, Participation, and 
Power 268 (Ana Henderson ed., 2007). The bailout 
process is thus transparent, workable and straight­
forward.

Petitioner here argues that the requirements of 
the bailout process are too difficult to meet. Our ex­
perience, and the experiences of other jurisdictions 
that have successfully bailed out, clearly shows the 
Petitioner’s understanding of the bailout process is 
incorrect. See, e.g., Brief of Amici Curiae Jurisdictions 
That Have Bailed Out Under the Voting Rights Act in 
Support of Appellees, NAMUDNO v. Holder, 557 U.S. 
193 (2009), 2009 WL 815227.

Moreover, as noted supra, any challenge to spe­
cific criteria as too onerous would be properly brought 
on an as-applied challenge, where specific facts can 
be developed, rather than a facial challenge to the 
statute as a whole.



25

B. The B ailout Process is A ffordable and  
C ost-E ffective.

Further reducing the cost of bailout is the simple 
rule that when a county or a city bails out, all politi­
cal subunits within the jurisdiction are bailed out at 
the same time. Thus, the one-time cost of a bailout for 
a county -  estimated at less than $5,000 for most 
counties -  and all its political subunits is affordable 
and cost-effective in the long run. The cost is even 
lower for smaller jurisdictions such as towns and 
municipal utility districts -  often as low as $2,500. 
See Voting Rights Act: An Examination o f the Scope 
and Criteria for Coverage Under the Special Provi­
sions o f the Act: Hearing Before the Subcomm. on the 
Constitution o f the House Judiciary Comm., 109th 
Cong. 106 (2005) (statement of J. Gerald Hebert, 
former Acting Chief, Civil Rights Division, U.S. Dep’t 
of Justice) (explaining the typical cost of a bailout), 
available at https://bulk.resource.org/gpo.gov/hearings/ 
109h/24034.pdf; see also Duncan Adams, Localities 
Seek Voting Rights Act Bailout, Roanoke Times, Jan. 
16, 2011, http://www.roanoke.com/news/roanoke/wb/ 
273946 (noting combined $5,000 cost of bailout for two 
jurisdictions).

Moreover, multiple counties have been permitted 
to bail out despite the existence of previously imple­
mented, but unsubmitted voting changes, which en­
sures that the opportunity to bail out is still available 
to non-discriminatory subunits that have been some­
what less than exact in their prior administrative 
upkeep. See, e.g., Brief of Amici Curiae Jurisdictions

https://bulk.resource.org/gpo.gov/hearings/
http://www.roanoke.com/news/roanoke/wb/


26

That Have Bailed Out, NAMUDNO, 2009 WL 815227 
at *17-*18; see also Consent Judgment and Decree 
*2 36, Prince William Cnty. v. Holder, No. 12-14 (D.D.C. 
Apr. 10, 2012) (indicating bailout despite late submis­
sion of changes for preclearance).

The experience of Prince William County, Virgin­
ia, shows that even relatively large counties can bail 
out successfully at low cost and without dedicating 
significant administrative resources to the process. To 
date, the County is the largest jurisdiction in popula­
tion ever to bail out (over 400,000 persons). See Corey 
Dade, Communities Find Relief From Voting Rights 
Act, NPR News (Aug. 11, 2012), http://rn.npr.org/news/ 
front/158381541?singlePage=true (“Prince William 
County, Va. . . . [with] 419,000 population. . . . became 
the largest jurisdiction in the nation to bail out.”); 
see also U.S. Census Bureau, 2010 Demographic 
Profile: Prince William County, Va., http://www. 
census. gov/popfinder/?fl=51153.

Despite its large size, Prince William County 
was not required to hire any additional staff to gather 
the necessary information and the County’s Voter 
Registrar reported that, although the bailout “process 
took a little over a year” from start to finish, she 
“only worked intensely on the project for a two- 
week period.” See Virginia County Successfully ‘Bails 
Out’ o f Voting Rights Act Preclearance Requirements, 
RedistrictingOnline.org (Apr. 12, 2012), http://
redistrictingonline.org/VApwcbailout041212.html (noting 
the statement of the County Registrar of Voters that 
no additional staff was hired to complete the bailout).

http://rn.npr.org/news/
http://www


27

“Local officials may mistakenly believe that 
bailing out is not cost-effective or is administratively 
difficult.” J. Gerald Hebert, Bailout Under the Voting 
Rights Act, in America Votes! 319, 326 (Benjamin E. 
Griffith ed., 2008). As for costs, when a local govern­
ment jurisdiction seeking a bailout is willing to 
gather the data on its own rather than pay outside 
counsel to do so, “the legal fees for the entire process 
of obtaining a bailout are less than $5000.” Id. Total 
costs for a bailout are even smaller if the local 
government seeking bailout does not contain any 
other political subunits. But even for large bailed out 
jurisdictions, like the State of New Hampshire, the 
financial cost of the bailout is both affordable and 
cost-effective, since it eliminates the administrative 
and legal costs of making preclearance submissions.

III. AM ICI  SU PPO R TIN G  PETITIO N ER  HAVE  
MADE INCORRECT FACTUAL ASSERTIONS 
R EGARD IN G  THE BAILOUT PROVISIONS.

Petitioner and several of the amici supporting 
Petitioner have made arguments that are factually 
incorrect with respect to bailout.

For example, Amicus Curiae Cato Institute claims 
that the Respondent Attorney General has treated 
Shelby County differently than the State of New 
Hampshire. See Brief of Amicus Curiae Cato Institute 
In Support of Petitioner at 15-16 (Jan. 2, 2013). Cato 
asserts that Respondent has not permitted Shelby 
County to bail out because it failed to submit one



28

voting change for preclearance, while permitting 
New Hampshire to bail out even though the State or 
its towns implemented a number of changes without 
preclearance. Id. This is incorrect in several re­
spects.

First, Shelby County has never sought a bailout. 
The County appears ineligible, however, not because 
it failed to submit one voting change, but because a 
jurisdiction within its borders (the City of Calera) 
was the subject of a Section 5 objection within the last 
10 years for a blatant violation of the Voting Rights 
Act. The City of Calera had submitted 177 annexa­
tions along with a proposed redistricting plan for 
preclearance. But these annexations had occurred in 
the 13 years prior to the submission of the redistrict­
ing plan, and the City had failed to submit any for 
preclearance. Furthermore, as the Attorney General 
found, the proposed redistricting plan “would elimi­
nate the city’s sole majority African-American dis­
trict.” See U.S. Dept, of Justice, Civil Rights Division, 
Letter to Dan Head, Esq. (Aug. 25, 2008), available at 
http://www.justice.gov/crt/about/vot/sec_5/ltr/l_082508. 
php. Other findings made by the Attorney General in 
the Calera objection letter strongly suggest the pres­
ence of a racially discriminatory intent. Id. Attempts 
to equate the situations of Shelby County and the 
State of New Hampshire are thus simply not credible.

Second, Petitioner claims that “[bjailout eligi­
bility requires not only that a covered jurisdiction 
have a ten-year record of perfect compliance with 
statutory bailout criteria, but also that all of its

http://www.justice.gov/crt/about/vot/sec_5/ltr/l_082508


29

subjurisdictions have the same spotless record.” Pet. 
Br. at 54. This argument is apparently made to show 
that covered jurisdictions cannot obtain a bailout if 
just one of its political subdivisions fails to make a 
timely submission over a ten-year period. This is 
wrong. Jurisdictions seeking a bailout have, for 
decades, been permitted by the Attorney General to 
bail out even if they have implemented unprecleared 
voting changes, provided they make the requisite 
submission before bailout and provided the failure to 
make the timely preclearance submission was due to 
oversight or inadvertence. Examples of covered juris­
dictions that have bailed out despite having a number 
of unprecleared changes (that were submitted and 
precleared before bailout) are listed in the amicus 
curiae brief filed in this case by Merced County, 
California. See Brief of Merced County at 36-37.

Similarly, the argument that a State or a County 
is unable to obtain a bailout because they lack the 
ability to bring non-compliant political subunits 
within their borders into compliance with Section 5 
is also wrong and shows a fundamental misunder­
standing of how the bailout process actually works. 
Though it may be “challenging],” a large jurisdiction 
can obtain a bailout even if there are dozens of sub­
jurisdictions within it and those political subunits are 
independent of the larger jurisdiction. See Brief of 
Merced County at 20.

First, in all of our experiences with bailout, we 
easily gathered data that we felt supported a bailout 
for all covered political subdivisions within our



30

borders. We then notified the Justice Department 
that we wanted to bail out and the Department then 
conducted its own investigation to verify our bailout 
eligibility. Sometimes, in gathering data on our own 
and upon independent investigation by the Justice 
Department, we discovered that a political subunit 
within our jurisdiction had inadvertently failed to 
make a timely preclearance submission of a voting 
change. In every instance when that happened, the 
voting change was promptly submitted and 
precleared, and the bailout process proceeded to a 
successful conclusion. The opportunity to bail out 
following submission of these previously unsubmitted 
voting changes gave the bailed out jurisdictions the 
opportunity to show that the failure to make a Sec­
tion 5 submission was an oversight or due to inad­
vertence, and not a desire to evade compliance with 
the preclearance provisions or hide discriminatory 
voting procedures from federal authorities.

For example, in New Hampshire, the State and a 
number of covered towns, townships or unincorpo­
rated places within the state had failed to make 
timely submission of a number of voting changes. 
When these voting changes were identified by the 
State, the State promptly submitted them and ob­
tained the requisite preclearance. During the course 
of reviewing the records of the covered political 
subunits in New Hampshire, Justice Department 
attorneys also identified changes relating to voting 
and these changes were promptly submitted for 
preclearance. In all instances, the changes were minor



31

and had not been submitted due to inadvertence and 
oversight. These events did not disqualify New Hamp­
shire from proceeding with its bailout, nor did such 
unprecleared past voting changes stop the Respon­
dent Attorney General from consenting to the bailout 
application in the D.C. district court. See Consent 
Judgment and Decree (proposed), New Hampshire v. 
Holder, No. 12-01854 (D.D.C. Dec. 21, 2012).

Respondent Attorney General applied the same 
standards to New Hampshire that it has applied for 
decades to other jurisdictions that have bailed out. In 
Shenandoah County, Virginia, for example, which 
bailed out in 1999, it was discovered during the 
course of gathering information for the bailout that 
the County itself and a number of towns within the 
County had failed to submit voting changes for pre­
clearance review. See Consent Judgment and Decree, 
Shenandoah Cnty. v. Reno, No. 99-992 (D.D.C. Oct. 
15, 1999), available at http://www.justice.gov/crt/ 
about/vot/misc/shenandoah_cd.pdf. The County had 
failed to submit one special election for preclearance 
review, and four towns within the County had failed 
to submit over 30 annexations for Section 5 review. 
But Shenandoah County encountered no difficulty in 
bringing the political subunits into compliance with 
Section 5 of the Voting Rights Act by making submis­
sions for their political subunits nunc pro tunc. 
Merced County, California, also obtained a bailout in 
2012, despite the presence of previously unprecleared 
voting changes. See Brief of Merced County at 14

http://www.justice.gov/crt/


32

(stating there were thirteen previously unsubmitted 
voting changes). Upon preclearance of these previously 
unsubmitted changes by the Attorney General, and 
on the basis of other information supplied by Shen­
andoah County and Merced County demonstrating 
compliance with the Act, the Attorney General con­
sented to those bailouts and the D.C. district court 
entered consent judgments granting each county a 
bailout.

The Attorney General’s approach to processing 
bailout applications is consistent with the statute and 
congressional intent. Congress has made clear in 
Section 4 of the Voting Rights Act that “[njothing in 
this section shall prohibit the Attorney General from 
consenting to an entry of judgment if based upon a 
showing of objective and compelling evidence by the 
plaintiff, and upon investigation, he is satisfied that 
the State or political subdivision has complied with 
the requirements of subsection (a)(1) of this section.” 
42 U.S.C. § 1973b(a)(9).

As our own bailouts prove, showing the lack of a 
preclearance objection over a ten-year period is not a 
problem for the vast majority of jurisdictions subject 
to preclearance under the Act. Many covered jurisdic­
tions within the 16 fully- or partially-covered states 
have not had a single objection over the last 10 years, 
have not been involved in any voting rights litigation 
during that time period, and could well be bailout 
eligible today. These potentially bailout-eligible 
jurisdictions include big cities in the Deep South with



33

a long history of discrimination, such as Birmingham, 
Alabama; Jackson, Mississippi; New Orleans, Louisi­
ana; and Richmond, Virginia, to name just a few.

Existing alongside the preclearance requirements 
of Section 5, the bailout process -  as expanded by the 
Court in NAMUDNO — will continue to exempt non- 
discriminatory jurisdictions from the Act’s special 
provisions, constantly tailoring the coverage formula 
so that current burdens meet current needs.

---------------- ♦----------------

C O N C LU SIO N

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

Respectfully submitted,
J. Gerald Hebert 

Counsel o f Record 
Paul S. Ryan 
Tara Malloy 
Megan M cAulen 
Campaign Legal Center 
215 E Street, NE 
Washington, DC 20002 
(202) 736-2200
Counsel for Amici Curiae



34

Lucy Phillips 
205 Academy Drive 
Abingdon, VA 24210 
(276)525-1370
Counsel for Amicus Curiae 

Washington County, VA
Clayward C. Corry, Jr .
117 S. Battleground Avenue 
Kings Mountain, NC 28086 
(704) 739-3696
Counsel for Amicus Curiae 

Kings Moun tain, NC



App. 1

APPEN DIX A

Jurisdictions Bailed Out o f Section 5 Coverage After August 5, 1984

Jurisdiction State Type Bailout 
Filed Date

1 ■ • x ; :: : •

Bailout 
Granted Date

Num ber o f Elected  
Governmental 

Units Fully W ithin  
Jurisdiction

Num ber of 
Unprecleared  

Changes

Fairfax City VA Indep. City Sept. 25, 1997 Oct. 21, 1997 2 0
Frederick County VA County Apr. 19, 1999 Sept. 10, 1999 5 1
Shenandoah County VA County Apr. 21, 1999 Oct. 15, 1999 10 31
Roanoke County VA County Aug. 11, 2000 Jan. 24, 2001 3 8
Winchester City VA Indep. City Dec. 22, 2000 June 1, 2001 1 1
Harrisonburg City VA Indep. City Feb. 14, 2002 Apr. 17, 2002 2 0
Rockingham County VA County Mar. 28, 2002 May 24, 2002 9 1
Warren County VA County Aug. 30, 2002 Nov. 26, 2002 3 7
Greene County VA County Sept. 8, 2003 Jan. 19, 2004 3 1
Pulaski County VA County June 22, 2005 Sept. 27, 2005 4 14
Augusta County VA County Sept. 30, 2005 Nov. 30, 2005 3 3
Salem City VA Indep. City May 25, 2006 July 27, 2006 1 0
Botetourt County VA County June 8, 2006 Aug. 28, 2006 5 0
Essex County VA County Sept. 21, 2006 Jan. 31, 2007 3 0
Middlesex County VA County Aug. 17, 2007 Jan. 7, 2008 3 0
Amherst Comdy VA County May 6, 2008 Aug. 13, 2008 2 0
Page County VA County June 27, 2008 Sept. 15, 2008 5 0
Washington County VA County June 27, 2008 Sept. 23, 2008 5 0
Northwest Austin 
Municipal Utility 
District Number One

T X S p e c ia l D is tr ic t Aug. 4, 2006 Nov. 3, 2009 1



App. 2

Jurisdiction

------ ------- t—-------------■—-----—----•.——
..

State Type Bailout 
Filed Date

Bailout 
Granted Date

Num ber o f Elected  
Governmental 

Units Fully Within  
Jurisdiction

Num ber of  
Unprecleared  

Changes

City of Kings Mountain NC City July 8, 2010 Oct. 22, 2010 1 2
City of Sandy Springs GA City Sept. 7, 2010 Oct. 26, 2010 1 0
Jefferson County Drainage 
District Number Seven TX Special District Mar. 2, 2011 June 6, 2011 1 2

Alta Irrigation District CA Special District Apr. 20, 2011 July 15, 2011 1 3
City of Manassas Park VA Indep. City Apr. 19, 2011 Aug. 3, 2011 1 0
Rappahannock County VA County June 17, 2011 Aug. 9, 2011 3 0
Bedford County VA County Mar. 8, 2011 Aug. 30, 2011 2 0
City of Bedford VA Indep. City Mar. 4, 2011 Aug. 31, 2011 1 0
Culpeper County VA County Aug. 16, 2011 Oct. 3, 2011 3 3
James City County VA County Aug. 5, 2011 Nov. 9, 2011 1 0
City of Williamsburg VA City Aug. 4, 2011 Nov. 28, 2011 2 0
King George County VA County Dec. 7, 2011 Apr. 5, 2012 2 2
Prince William County VA County Jan. 6, 2012 Apr. 10, 2012 6 6
City of Pinson AL City Feb. 15, 2012 Apr. 20, 2012 1 4
Wythe County VA County May 3, 2012 June 18, 2012 4 0
Grayson County VA County May 3, 2012 July 20, 2012 5 0
Merced County CA County Mar. 6, 2012 Aug. 31, 2012 85 13
Craig County VA County July 18, 2012 Nov. 29, 2012 3 0
Carroll County VA County July 17, 2012 Nov. 30, 2012 3 0
State of New Hampshire NH State Nov. 15, 2012 Pending 18 n/a
Browns Valley 
Irrigation District CA Special District Sept. 26, 2012 Pending 1 n/a

City of Wheatland CA City Jan. 14, 2013 Pending 1 n/a





23 I 1 Douglas Street 
Omaha, Nebraska 68102-1214

E-Mail Address: 
cpc@cocklelaw.com

1-800-225-6964 
(402) 342-283 I 

Fax: (402) 342-4850

fojCKLE Printinĝ .
Law Brief Specialists 

Since 1923

No. 12-96

Web Site
www.cocklelaw.com

SI IELBY C O U N T Y, A L A B A M A , 
Petitioner,

v.
ERIC H. HOLDER, JR., A T TO R N E Y GENERAL  

OF THE UNITED STATES OF AM E R IC A, ET AL., 
Respondents.

AFFIDAVIT OF SERVICE

I, Patricia Billotte, o f  lawful age, being duly sworn, upon my oath state that I did, on the 1 st day o f February, 2 0 13, send out 
from Omaha, NE 5 package(s) containing 3 copies o f  the BRIEF OF AM ICI CURIAE JURISDICTIONS TH AT H AVE  
BAILED OUT IN SUPPORT OF RESPONDENTS AN D  URGING AFFIRM ANCE in the above entitled case. All parties 
required to be served have been served by Priority Mail. Packages were plainly addressed to the following:

SEE AT T A C H E D

To be filed for:
LUCY PHILLIPS 
205 Academy Drive 
Abingdon, V A  24210  
(2 7 6 )5 2 5 -1 3 7 0

Counsel for Amicus Curiae 
Washington County, V A

C L A Y W A R D  C. CO R R Y, JR. 
1 I 7 S. Battleground Avenue 
Kings Mountain, NC 28086  
(70 4 )7 3 9 -3 6 9 6

Counsel for Amicus Curiae 
Kings Mountain, NC

J. GERALD HEBERT  
Counsel o f  Record 

PAUL S. RYAN  
T A R A  M A L LO Y  
M EG AN M CALLEN  
CAM PAIGN LEGAL CENTER  
215 E Street, NE  
Washington, DC 20002  
(20 2 )7 3 6 -2 2 0 0  
ghebert@campaignlegal 
center.org

Counsel for Amici Curiae

Subscribed and sworn to before me this 1st day of February, 2013.
I am duly authorized under the laws of the State of Nebraska to administer oaths.

ANDREW COCKLE 
General Notary 

State of Nebraska
My Commission Expires Apr 9,2014

Notary Public
LUlllts

W  " W  w W W W 27700

mailto:cpc@cocklelaw.com
http://www.cocklelaw.com


Attorneys for Petitioner:
Bert W. Rein

Counsel of Record
Wiley Rein LLP (202) 719-7000 
1776 K Street, N.W.
Washington, DC 20006
brein@wileyrein.com 

Party name: Shelby County, Alabama 
Attorneys for Respondents:
Debo P. Adegbile NAACP Legal Defense & Educational Fund, Inc. (212) 965-2249

Counsel of Record 99 Hudson Street, 16th Floor 
New York, NY 10013 
dadegbile@naacpldf.org

Party name: respondent-intervenors Earl Cunningham, et al

Jon M. Greenbaum 
Counsel of Record

Lawyers' Committee for Civil Rights Under Law (202) 662-8315 
1401 New York Avenue, NW 
Suite 400
Washington, DC 20005 
jgreenbaum@lawyerscommittee.org

Party name: Respondent-lntervenor Bobby Lee Harris

Laughlin McDonald 
Counsel of Record

American Civil Liberties Union Foundation (404) 523-2721 
230 Peachtree Street NW 
Atlanta, GA 30303-1504 
lmcdonald@aclu.org

Party name: Respondent - Intervenors Bobby Pierson, et al

Donald B. Verrilli Jr. 
Counsel of Record

Solicitor General (202) 514-2217
United States Department of Justice
950 Pennsylvania Avenue, N.W., Room 5614
Washington, DC 20530-0001
SupremeCtBriefs@USDOJ.gov

Party name: Eric H. Holder, Jr., Attorney General

mailto:brein@wileyrein.com
mailto:dadegbile@naacpldf.org
mailto:jgreenbaum@lawyerscommittee.org
mailto:lmcdonald@aclu.org
mailto:SupremeCtBriefs@USDOJ.gov


2311 Douglas Street 
Omaha, Nebraska 68102-1214

E-Mail Address: 
cpc@cocklelaw.com

1-800-225-6964 
(402) 342-283 1 

Fax: (402) 342-4850

fe a E  Printinĝ .
Law Brief Specialists 

Since 1923 Web Site
www.cocklelaw.com

No. 12-96

SHELBY COUNTY, ALABAMA,
Petitioner,

v.
ERIC H. HOLDER, JR., ATTORNEY GENERAL 

OF THE UNITED STATES OF AMERICA, ET AL.,
Respondents.

CERTIFICATE OF COMPLIANCE

As required by Supreme Court Rule 33.1(h), I certify that the BRIEF OF AMICI CURIAE 

JURISDICTIONS THAT HAVE BAILED OUT IN SUPPORT OF RESPONDENTS AND 

URGING AFFIRMANCE in the above entitled case complies with the typeface requirement of 

Supreme Court Rule 33.1(b), being prepared in New Century Schoolbook 12 point for the text and 

10 point for the footnotes, and this brief contains 7929 words, excluding the parts that are 

exempted by Supreme Court Rule 33.1(d), as needed.

Subscribed and sworn to before me this 1st day o f February, 2013.
I am duly authorized under the laws o f the State o f  Nebraska to administer oaths.

< ~ ~ ~  — ,
' ANDREW COCKLE '
< General Notary '
< State of Nebraska i
( My Commission Expires Apr 9,2014 ,

i « ” »  > *  ' Notary Public
Us/.<?-■ < 0 /J  Llla  i l l

Affiant
27700

mailto:cpc@cocklelaw.com
http://www.cocklelaw.com