Case 1:10-cv-00651-JDB Document 1 Filed 04/27/10 Page 1 of 21
fILED

APR 2 ( 2010

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Clerk, U.S. District & Bankruptcy
Courts tor the District of ColumbIa

SHELBY COUNTY, ALABAMA 201 West College Street Columbiana, AL 35051

Plaintiff,
v.
ERIC H. HOLDER, JR., in his official capacity as ATTORNEY GENERAL OF THE UNITED STATES, U.S. Department of Justice 950 Pennsylvania Avenue, NW Washington, DC 20530

Case: 1: 10-cv-00651 Assigned To : Bates, John D. Assign. Date: 4/27/2010 Description: General Civil

Defendant.

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF l. This is an action for a declaratory judgment that Section 4(b), 42 U.S.C. § 1973b(b), and Section 5, id. § 1973c, of the Voting Rights Act ("VRA"), which render Plaintiff Shelby County a "covered" jurisdiction and require Shelby County to obtain "preclearance" for all voting changes, are facially unconstitutional, and for a permanent injunction against Defendant Attorney General Eric H. Holder, Jr. enjoining the enforcement of these provisions of theVRA.
THE PARTIES 2. Plaintiff is a county in the State of Alabama and a "political subdivision" for purposes of Section 4 and Section 5 of the VRA. Jd. §§ 1973b, 1973c, 1973/(c)(2). 3. Defendant, acting in his official capacity as Attorney General ofthe United States, has his office in the District of Columbia and is charged with the enforcement of the VRA.

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JURISDICTION AND VENUE 4. This Court has jurisdiction pursuant to 28 US.C. § 1331, 42 US.c. § 1973c, and 42 U.S.C. § 1973/. 5. Plaintiff seeks a declaratory judgment and injunctive relief pursuant to 28 US.c. § 2201 and 28 U.S.c. § 2202. 6. Venue is proper in this district under 42 US.c. § 19731 and 28 U.S.c. § 1391(b).
BACKGROUND A. The Voting Rights Act of 1965 7. The Fifteenth Amendment to the United States Constitution provides, in relevant part, that "[t]he right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude," US. Const. amend. XV, § 1, and grants to Congress the "power to enforce this article by appropriate legislation," id. § 2. 8. Congress enacted the Voting Rights Act of 1965, Pub. L. No. 89-110, 79 Stat. 437 (1965), to enforce the substantive guarantee of the Fifteenth Amendment. 9. Section 2 of the VRA enforced the substantive guarantee of the Fifteenth Amendment by outlawing any "voting qualification or prerequisite to voting, or standard, practice, or procedure ... imposed or applied ... to deny or abridge the right of any citizen of the United States to vote on account of race or color." !d. § 2, 79 Stat. at 437. This prohibition applied nationwide. Id. 10. Other provisions of the statute applied only to certain jurisdictions pursuant to a geographic "coverage" formula established by the VRA.
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a. Section 4(a) of the VRA foreclosed any "covered" jurisdiction from using a prohibited "test or device" in conducting elections. Id. § 4(a), 79 Stat. at 438. Section 4(c) defined a prohibited "test or device" as "any requirement that a person as a prerequisite for voting or registration for voting (1) demonstrate the ability to read, write, understand, or interpret any matter, (2) demonstrate any educational achievement or his knowledge of any particular subject, (3) possess good moral character, or (4) prove his qualifications by the voucher of registered voters or members of any other class." Id. § 4(c), 79 Stat. at 438-39.
b. Section 4(b) set forth the coverage formula: "[A]ny State or any political subdivision of a state which ... the Attorney General determine[d) maintained on November 1, 1964, any [prohibited] test or device, and with respect to which ... the Director of the Census determine[d) that less than 50 percentum of the persons of voting age residing therein were registered on November 1, 1964, or that less than 50 percentum of such persons voted in the presidential election of November 1964." !d. § 4(b), 79 Stat. at 438.
c. Under Section 4(b)'s coverage formula, seven States (Alabama, Alaska, Georgia, Louisiana, Mississippi, South Carolina, and Virginia), forty counties in North Carolina, as well as a few counties in Arizona, Hawaii, and Idaho, became "covered" jurisdictions. Determination of the Attorney General Pursuant to Section 4(b)(1) of the Voting Rights Act of 1965,30 Fed. Reg. 9897 (Aug. 7, 1965); Determination of the Director of the Census Pursuant to Section 4(b)(2) of the Voting Rights Act of 1965 (Public Law 89-110), 30 Fed. Reg. 9897 (Aug. 7, 1965); Determination of the Director Regarding Voting Rights, 31 Fed. Reg. 19 (Jan. 4, 1966); Determination of the Director Regarding Voting Rights, 31 Fed. Reg. 982 (Jan. 25, 1966); Determination of the Director Regarding Voting Rights, 31 Fed. Reg. 3317 (Mar. 2, 1966); Determination of the Director Regarding Voting Rights, 31 Fed. Reg. 5080-81 (Mar. 29, 1966).
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11. These "covered" jurisdictions also were subjected to the "preclearance" obligation of Section 5 of the VRA.
a. Section 5 required covered jurisdictions to "preclear" any new law or any change to an existing law involving "any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting different from that in force or effect on November 1, 1964." Voting Rights Act of 1965, § 5, 79 Stat. at 439.
b. The covered jurisdictions could obtain "preclearance" by submitting the proposed change to the Department of Justice ("DO]") or by filing a declaratory-judgment action before a three-judge panel of the United States District Court for the District of Columbia ("DDC"). Id.
c. Preclearance could be granted by DO] or the DDC only if the voting change "[did] not have the purpose and [would] not have the effect of denying or abridging the right to vote on account of race or color." Id.
12. Section 4(a) of the VRA included a so-called "bailout" provision that allowed a "covered" jurisdiction to terminate coverage subject to a "claw back" mechanism.
a. A covered jurisdiction could bailout if a three-judge panel of the DDC "detennined that no [prohibited] test or device ha[d] been used during the five years preceding the filing of the action for the purpose or with the effect of denying or abridging the right to vote on account ofrace or color." Id. § 4(a), 79 Stat. at 438.
b. Section 4(a) also provided, however, that "[t]he court shall retain jurisdiction of any action pursuant to th[e] subsection for five years after judgment and shall reopen the action upon motion of the Attorney General alleging that a test or device has been
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used for the purpose or with the effect of denying or abridging the right to vote on account of race or color." Id.
13. Congress intended for Section 4(b) and Section 5 of the VRA to be temporary provIsIons.
14. In 1966, the Supreme Court rejected a constitutional challenge to several sections of the VRA, including the preclearance obligation that Section 5 imposed on those jurisdictions covered under the geographic fonnula set forth in Section 4(b). South Carolina v. Katzenbach, 383 U.S. 301 (1966).
a. The Supreme Court explained that voting discrimination had "infected the electoral process in parts of our country for nearly a century." Id. at 308. "Congress concluded that the unsuccessful remedies which it had prescribed in the past would have to be replaced by sterner and more elaborate measures in order to satisfy the clear commands of the Fifteenth Amendment." Id. at 309. The Supreme Court also concluded that the coverage fonnula and the preclearance obligation that followed from coverage targeted the "insidious and pervasive evil which had been perpetrated in certain parts of our country through unremitting and ingenious defiance of the Constitution." Id. "Congress began work with reliable evidence of actual voting discrimination in a great majority of the States and political subdivisions affected by the new remedies of the Act." Id. at 329. These were "the geographic areas where immediate action seemed necessary." Id. at 328.
b. The Supreme Court acknowledged, however, that the preclearance obligation of Section 5 represented an "uncommon exercise of congressional power" that was "appropriate" only because of the "exceptional conditions" and "unique circumstances" in the covered jurisdictions. Id. at 334-35. The Supreme Court highlighted the unresolved problem of
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low African-American registration rates, explaining that the "registration of voting-age Negroes

in Alabama rose only from 14.2% to 19.4% between 1958 and 1964; in Louisiana it barely

inched ahead from 31.7% to 31.8% between 1956 and 1965; and in Mississippi it increased only

from 4.4% to 6.4% between 1954 and 1964. In each instance, registration of voting-age whites

ran roughly 50 percentage points or more ahead of Negro registration." Id. at 313.

c. The Supreme Court ultimately concluded that Section 5 was necessary to

defeat "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." Id. at 335.

Congress fairly determined that without Section 5 these "States might try similar maneuvers in

the future in order to evade the remedies for voting discrimination contained in the Act itself."

Id. "Under the compulsion of these unique circumstances, Congress responded in a permissibly

decisive manner." Id.

B. The 1970, 1975, and 1982 Reauthorizations ofthe Voting Rights Act 15. In 1970, Congress reauthorized the VRA for another five years. Voting Rights

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

a.

The 1970 reauthorization extended Section 4(a)'s bailout compliance

period to ten years, id. § 3, 84 Stat. at 315, and extended Section 4(b)'s coverage formula-and

thus Section 5's preclearance obligation-to any jurisdiction that had maintained a prohibited

"test or device" on November 1, 1968, and had voter registration on that date or turnout in the

1968 presidential election ofless than 50 percent, id. § 4, 84 Stat. at 315.

b. Congress also added Section 201 to the VRA. !d. § 6, 84 Stat. at 315.

Section 201 provided that "[p]rior to August 6, 1975, no citizen shall be denied, because of his

failure to comply with any test or device, the right to vote in any Federal, State, or local election

conducted in any State or political subdivision of a State as to which the provisions of section

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4(a) of this Act are not in effect by reason of detenninations made under Section 4(b) of this Act." Id. Section 201 thus banned the use of any prohibited "test or device" in non-covered jurisdictions for a period of five years.
c. The Supreme Court upheld the reauthorization of the VRA against constitutional challenge. Georgia v. United States, 411 U.S. 526 (1973).
16. In 1975, Congress reauthorized the VRA for another seven years. Act of Aug. 6, 1975, Pub. L. No. 94-73, 89 Stat. 400.
a. The 1975 reauthorization extended Section 4(a)'s bailout compliance period to seventeen years, id. § 101, 89 Stat. at 400, and extended Section 4(b)' s coverage fonnula-and thus Section 5's preclearance obligation-to any jurisdiction that had maintained a prohibited "test or "device" on November 1, 1972, and had voter registration on that date or turnout in the 1972 presidential election ofless than 50 percent, id. § 202, 89 Stat. at 401.
b. Congress also extended Section 5's preclearance obligation by expanding the definition of "test or device" to include the provision of election materials only in English by jurisdictions in which more than five percent of the voting age citizens were members of "a single language minority." !d. § 203, 89 Stat. at 401-02.
c. The 1975 reauthorization of the VRA also expanded Section 201's prohibition on "tests or devices" to provide that "[n]o citizen shall be denied, because of his failure to comply with any test or device, the right to vote in any Federal, State, or local election conducted in any State or political subdivision of a State. Id. §102, 89 Stat. at 400. As amended, Section 201 thus pennanently banned the use of any prohibited "test or device" nationwide irrespective of coverage under Section 4(b). As a result, while the VRA's key substantive provisions-Section 2 and Section 201-applied nationwide, Section 5 procedurally obligated
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only "covered" jurisdictions to prove compliance with these provisions by sUbmitting all voting changes to DO] for preclearance prior to implementation.
d. The Supreme Court upheld the 1975 reauthorization of the VRA against constitutional challenge. City of Rome v. United States, 446 U.S. 156 (1980). The Supreme Court explained that "[sJignificant disparity persisted between the percentages of whites and Negroes registered in at least several of the covered jurisdictions. In addition, though the number of Negro elected officials had increased since 1965, most held only relatively minor positions, 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 'undeniable,' had been 'modest and spotty,' extension of the Act was warranted." Id. at 180-81 (quoting H.R. Rep. No. 94-196, at 7-11 (1975); S. Rep. No. 94-295, at 11-19 (1975)).
17. In 1982, Congress reauthorized the VRA for another twenty-five years. Voting Rights Act Amendments of 1982, Pub. L. No. 97-205, 96 Stat. 131 (1982). The 1982 reauthorization amended Section 4(a)'s bailout provision in two ways. First, it permitted a "political subdivision" within a fully-covered state to seek bailout. Id. § 2(b)(2), 96 Stat. at 131. Second, the 1982 reauthorization made the eligibility of the "State" or "political subdivision" seeking bailout contingent on its conduct over the previous ten years. Id.
18. To be eligible for bailout under the 1982 amendments to Section 4(a) ofthe VRA, a covered "State" or "political subdivision" was required to prove to a three-judge panel of the DDC that during the preceding ten years:
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a. No prohibited "test or device has been used within such State or political subdivision for the purpose or with the effect of denying or abridging the right to vote on account of race or color," id. § 2(b)(4), 96 Stat. at 131;
b. "[NJo final judgment of any court of the United States, other than the denial of declaratory judgment under this section, has determined that denials or abridgements of the right to vote on account of race or color have occurred anywhere in the territory of such State or political subdivision ... and no consent decree, settlement, or agreement has been entered into resulting in any abandonment of a voting practice challenged on such grounds; and no declaratory judgment under this section shall be entered during the pendency of an action commenced before the filing of an action under this section and alleging such denials or abridgements ofthe right to vote," id. § 2(b)(4), 96 Stat. at 131-32;
c. "[NJo Federal examiners or observers ... have been assigned to such State or political subdivision," id. § 2(b)(4), 96 Stat. at 132;
d. "[SJuch State or political subdivision and all governmental units within its territory have complied with [Section 5J, including compliance with the requirement that no change covered by [Section 5] has been enforced without preclearance ... and have repealed all changes covered by [Section 5] to which the Attorney General has successfully objected or as to which the [DDC] has denied a declaratory judgment," id.;
e. "[T]he Attorney General has not interposed any objection (that has not been overturned by a final judgment of a court) and no declaratory judgment has been denied under [Section 5], with respect to any submission by or on behalf of the plaintiff or any governmental unit within its territory under [Section 5], and no such submissions or declaratory judgment actions are pending," id.; and
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f. "[S]uch State or political subdivision and all governmental units within its territory-(i) have eliminated voting procedures and methods of election which inhibit or dilute equal access to the electoral process; (ii) have engaged in constructive efforts to eliminate intimidation and harassment of persons exercising rights protected under [the VM]; and (iii) have engaged in other constructive efforts, such as expanded opportunity for convenient registration and voting for every person of voting age and the appointment of minority persons as election officials throughout the jurisdiction and at all stages of the election and registration process," id.
19. "To assist [DDC] in determining whether" to grant bailout, the covered jurisdiction was required to compile and present "evidence of minority participation, 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." Id.
20. The 1982 amendments also precluded bailout if the covered jurisdiction "and governmental units within its territory have, during the period beginning ten years before the date the judgment is issued, engaged in violations of any provision of the Constitution or laws of the United States or any State or political subdivision with respect to discrimination in voting on account of race or color ... unless the plaintiff establishes that any such violations were trivial, were promptly corrected, and were not repeated." !d.
21. The 1982 amendments also expanded the "claw back" provision in Section 4(a) that governed those jurisdictions that successfully bailed out of coverage. As amended, this provision provided that "the court shall retain jurisdiction of any action pursuant to the subsection for ten years after judgment and shall reopen the action upon motion of the Attorney General or any aggrieved person alleging that conduct has occurred which, had that conduct
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occurred during the ten-year periods referred to in this subsection, would have precluded the issuance of a declaratory judgment under this subsection. The court, upon such reopening, shall vacate the declaratory judgment issued under this section if, after the issuance of such declaratory judgment, a final judgment against the State or subdivision with respect to which such declaratory judgment was issued, or against any governmental unit within that State or subdivision, determines that denials or abridgements of the right to vote on account of race or color have occurred anywhere in the territory of such State or political subdivision ... or if, after the issuance of such declaratory judgment, a consent decree, settlement, or agreement has been entered into resulting in any abandonment of a voting practice challenged on such grounds." Id. § 2(b)(5), 96 Stat. at 133.
c. The 2006 Reauthorization of the VRA
22. In 2006, Congress reauthorized the VRA for another twenty-five years without making any relevant amendments to Section 5's preclearance obligation, Section 4(a)'s bailout criteria, or Section 4(b)'s coverage formula. Fannie Lou Hamer, Rosa Parks, and Caretta Scott King Voting Rights Act Reauthorization and Amendments Act of 2006, Pub. L. No. 109-246, 120 Stat. 577 (2006) ("2006 Reauthorization Act").
23. Congress found "that the number of African-Americans who are registered and who tum out to cast ballots has increased significantly over the last 40 years, particularly since 1982. In some circumstances, minorities register to vote and cast ballots at levels that surpass those of white voters." H.R. Rep. No. 109-478, at 12 (2006).
24. Congress also found that "the disparities between African-American and white citizens who are registered to vote have narrowed considerably in six southern States covered by the temporary provisions (Alabama, Georgia, Louisiana, Mississippi, South Carolina, and Virginia) and in the 40 counties covered in the State of North Carolina." Id.
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25. Congress likewise found that "presently in seven of the covered States, AfricanAmericans are registered at a rate higher than the national average," that in two more covered States, African-American registration is "identical to the national average," and that in "California, Georgia, Mississippi, North Carolina, and Texas, black registration and turnout in the 2004 election ... was higher than that for whites." S. Rep. No. 109-295, at 10-11 (2006).
26. Congress nevertheless extended these provisions for another twenty-five years based on its conclusion that "vestiges of discrimination in voting continue to exist as demonstrated by second generation barriers constructed to prevent minority voters from fully participating in the electoral process" and "[t]he continued evidence of racially polarized voting in each of the jurisdictions covered by the expiring provisions of the [VRA] demonstrates that racial and language minorities remain politically vulnerable, warranting the continued protection ofthe Voting Rights Act of 1965." 2006 Reauthorization Act, § 2(b)(2)-(3), 120 Stat. at 577.
27. According to Congress, "[p]resent day discrimination experienced by racial and language minority voters is contained in evidence, including the objections interposed by [DOl] in covered jurisdictions; the section 2 litigation filed to prevent dilutive techniques from adversely affecting minority voters; the enforcement actions filed to protect language minorities; and the tens of thousands of Federal observers dispatched to monitor polls in jurisdictions covered by the Voting Rights Act of 1965." Id. § 2(b)(8), 120 Stat. at 578.
C. Shelby County's Experience Under the Voting Rights Act 28. The State of Alabama has been fully covered by Section 4(b) of the VRA since August 7, 1965, when: (a) the Attorney General determined that, as of November 1, 1964, Alabama was using one or more prohibited tests or devices; and (b) the Director of the Census
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detennined that less than 50 percent of the persons of voting age residing in Alabama voted in the presidential election of November 1964.
29. As a result, for nearly 45 years Plaintiff Shelby County, a "political subdivision" of the State of Alabama for purposes of the VRA, has been obligated under Section 5 of the VRA to obtain preclearance for any changes in voting procedure different from those in effect on November 1, 1964.
30. Plaintiff Shelby County and the State of Alabama would not be subject to coverage if the fonnula set forth in Section 4(b) were based on data from any of the last three presidential elections instead of data from November 1964.
31. Because it is a "covered" jurisdiction, Shelby County regularly must seek preclearance for all voting practices and procedures.
32. In the last ten years, Shelby County has filed for preclearance numerous times, expended significant taxpayer dollars, time, and energy to meet its obligations under Section 5, and has had at least one election delayed in order to ensure compliance with the preclearance obligation of Section 5.
33. Because Section 5 requires that even the most minor voting changes must be precleared by DOl, Shelby County reasonably anticipates that it will have to regularly seek preclearance in the near future. Shelby County anticipates that, among other reasons, the districting changes triggered by the decennial census, as well as routine voting changes related to local elections and zoning, will require Plaintiff to seek preclearance in the near future.
34. It would be futile for Shelby County to attempt to bailout of coverage and preclearance under Section 4(a) of the VRA because Plaintiff is ineligible for bailout under the tenns of the statute.
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a. Plaintiff could not satisfy the requirement that it has complied during the

past ten years with the obligation under Section 5 to seek preclearance before implementing any

changes in voting procedure. 42 U.S.c. § 1973b(a)(1)(D).

1.

On April 9, 2002, Shelby County held a referendum election under

a law that had not been precleared. See Letter from Joseph D. Rich, Chief, Voting Section, U.S.

Department of Justice Civil Rights Division, to Frank C. Ellis, Jr., Esq., and Dorman Walker,

Esq. (Oct. 9, 2003). In 1965, the Alabama Legislature passed Act 65-816 ("Planning Act"),

which created the Shelby County Planning Commission ("Commission"). The Planning Act was

replaced in 1982 by Act 82-693, which restated the text of the original legislation and also

ratified, approved, validated, and confirmed the original legislation and all actions taken pursuant

to it. The Planning Act was then amended several times between 1982 and 1992. Under the

current version of the Planning Act, the Commission is responsible for zoning in many areas of

Shelby County, including those unincorporated voting precincts of Shelby County where a

majority ofthe qualified electors have voted in a special election to be subject to the Commission

and its zoning regulations.

11. Numerous special elections were held under the authority of the

Planning Act between 1965 and 2003. In 2003, however, a federal lawsuit was filed to prevent a

special election from being held to extend the Commission's jurisdiction to Precinct 14 of Shelby

County on the ground that the Planning Act (both as originally enacted and as amended) had not

been precleared by DOJ. In response to this federal lawsuit, and although there was confusion as

to whether the Alabama Attorney General or local officials were responsible for SUbmitting these

laws for preclearance, Shelby County submitted Act 65-816, each of the amendments, and each

of the special elections to DOJ for preclearance. Shortly thereafter, each of the laws, as well as

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the elections held under them, were either precleared (Act Nos. 65-816, 82-693, 82-771, 84-454,

84-484, 85-465, and 92-417) or deemed not subject to any preclearance obligation (Act Nos. 87-

771 and 89-673).

111. Although Plaintiff ultimately obtained preclearance, a covered

jurisdiction is ineligible for bailout unless "[a]ll changes affecting voting have been reviewed

under Section 5 prior to their implementation." United States Department of Justice, Civil

Rights Division, Section 4 of the Voting Rights Act, http://www.justice.gov/crt/voting/misc/sec_

4.php (last visited Apr. 1, 2010). Because Shelby County held special elections in the last ten

years under laws that were not precleared by DOJ prior to their implementation, Plaintiff is not

eligible for bailout. 42 U.S.c. § 1973b(a)(1)(D).

b. Plaintiff also does not satisfy the requirement that the Attorney General

not have interposed an objection under Section 5 during the past ten years to any change

submitted for preclearance by "any governmental unit within its territory." Id. § 1973b(a)(I)(E).

1.

On August 25,2008, the Attorney General interposed an objection

under Section 5 to certain voting changes submitted for preclearance by the City of Calera. See

Consent Decree at 2-3, United States ofAmerica v. City of Calera, Alabama, No. 08-1982 (N.D.

Ala. Oct. 29, 2008).

11. The City of Calera had sought preclearance of 177 annexations to

the district boundaries of Calera and a redistricting plan. DOJ objected to the reliability of the

demographic data available to and/or supplied by Calera and ultimately agreed to an interim

voting plan, which allowed Calera to develop and submit for preclearance a new voting plan

based on the results of the 2010 Census. See Joint Motion to Modify Consent Decree, United

States ofAmerica v. City ofCalera, Alabama, No. 08-1982 (N.D. Ala. Oct. 9,2009).

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111. Because the City of Calera is a "governmental unit" within the territory of Shelby County, and because the Attorney General interposed an objection under Section 5 during the past ten years to a voting change made by the City of Calera, Plaintiff is not eligible for bailout. 42 V.S.c. § 1973b(a)(1)(E).
35. Plaintiff Shelby County supports the vIgorous enforcement of the Fifteenth Amendment and the many provisions of the VRA that appropriately enforce its substantive command. However, it is no longer constitutionally justifiable for Congress to arbitrarily impose on Shelby County and other covered jurisdictions disfavored treatment by forcing them to justify all voting changes to federal officials in Washington, D.C. for another twenty-five years without a legislative record showing that these covered jurisdictions are still engaged in the type of "unremitting and ingenious defiance of the Constitution" that justified enactment of the VRA in 1965. Katzenbach, 383 U.S. at 309.
COUNT I
36. Paragraphs 1 through 35 are incorporated by reference as if fully realleged herein. 37. The "preclearance" obligation of Section 5 exceeds Congress's enforcement authority under the Fourteenth and Fifteenth Amendments and, therefore, violates the Tenth Amendment and Article IV of the Constitution. 38. Section 5 of the VRA exceeds Congress's enforcement authority under the Fourteenth and Fifteenth Amendments.
a. Section 5 "goes beyond the prohibition of the Fifteenth Amendment by suspending all changes to state election law-however inrlOcuous-until they have been precleared by federal authorities in Washington, D.C." Nw. Austin }.1un. Uti!. Dist. No. One v. Holder, 129 S. Ct. 2504, 2511 (2009) ("NAMUDNO").
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b. Because Section 5 "imposes current burdens," it "must be justified by current needs." ld. at 2512. "Punishment for long past sins is not a legitimate basis for imposing a forward-looking preventative measure that has already served its purpose." ld. at 2525 (Thomas, J., concurring in the judgment in part and dissenting in part).
c. In reauthorizing the VRA for another twenty-five years in 2006, Congress lacked the evidence of intentional discrimination that warranted the enactment of the VRA in 1965 and its extensions in 1970, 1975, and 1982. Congress produced no evidence that covered jurisdictions are engaging in the types of discriminatory voting practices that led to the VRA's enactment in 1965. There also was no evidence that covered jurisdictions would resurrect these discriminatory voting practices if the preclearance obligation of Section 5 were eliminated. Evidence of "second-generation barriers" cannot be equated to the intentionally discriminatory voting practices on which Congress relied in enacting the VRA in 1965.
d. Because there is neither "congruence and proportionality," City ofBoerne v. Flores, 521 U.S. 507, 520 (1997), nor even a "rational" relationship between the evidence compiled in support of the latest extension of Section 5 and the burdens imposed by that provision, Katzenbach, 383 U.S. at 324, Section 5 is not "appropriate" enforcement legislation and thus exceeds Congress's authority under the Fourteenth and Fifteenth Amendments.
39. Because Section 5 coverage exceeds Congress's enforcement authority under the Fourteenth and Fifteenth Amendments, it violates the Tenth Amendment and Article IV of the Constitution.
a. Section 5 "authorizes federal intrusion into sensitive areas of state and local policymaking" and "imposes substantial federalism costs." NAMUDNO, 129 S. Ct. at 2511 (internal citations and quotations omitted).
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b. "The government of the United States is one of delegated powers alone. Its authority is defined and limited by the Constitution. All powers not granted to it by that instrument are reserved to the States or the people." United States v. Cruikshank, 92 U.S. 542, 551 (1876).
c. "No function is more essential to the separate and independent existence of the States and their governments than the power to determine within the limits of the Constitution the qualifications of their own voters for state, county, and municipal offices and the nature of their own machinery for filling local public offices." Oregon v. Mitchell, 400 U.S. 112, 125 (1970).
d. Because the preclearance obligation of Section 5 intrudes upon a covered jurisdiction's authority and control over local elections, and exceeds Congress's enforcement authority under the Fourteenth and Fifteenth Amendments, it violates the Tenth Amendment and Article IV of the Constitution.
COUNT II 40. Paragraphs 1 through 39 are incorporated by reference as if fully realleged herein. 41. The formula set forth in Section 4(b) of the VRA, under which Plaintiff is rendered a "covered" jurisdiction subject to the "preclearance" obligation of Section 5, exceeds Congress's enforcement authority under the Fourteenth and Fifteenth Amendments and, therefore, violates the Tenth Amendment and Article IV ofthe Constitution. 42. The coverage formula of Section 4(b) of the VRA exceeds Congress's enforcement authority under the Fourteenth and Fifteenth Amendments.
a. Congress's reliance, in reauthorizing the VRA III 2006, on voting practices, voter registration data, and presidential election data from 1964, 1968, and 1972 as the
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trigger for the preclearance obligation of Section 5 is not an "appropriate" means of enforcing the Fifteenth Amendment.
b. In reauthorizing the VRA in 2006, Congress failed to establish that Section 4(b)'s coverage fonnula remains constitutionally justified under its Fourteenth and Fifteenth Amendment enforcement authority. The so-called "second-generation barriers" to voting on which Congress relied to justify the retention of Section 4(b)'s coverage fonnula for another twenty-five years generally exist to an equal or greater degree in non-covered jurisdictions. Congress had insufficient evidence to render it "appropriate" to single out these select jurisdictions for the preclearance obligation of Section 5 of the VRA.
c. Triggering coverage under Section 4(b) of the VRA on voting practices and Presidential election data from 1964, 1968, and 1972 establishes neither "congruence and proportionality between" coverage and enforcement of the Fifteenth Amendment, Boerne, 521 U.S. at 520, nor establishes that Section 4(b)'s coverage fonnula is a "rational means to effectuate the constitutional prohibition" embodied in the Fifteenth Amendment, Katzenbach, 383 U.S. at 324.
43. Because Section 4(b)'s coverage exceeds Congress's enforcement authority under the Fourteenth and Fifteenth Amendments, it violates the Tenth Amendment and Article IV of the Constitution.
a. Section 4(b) "differentiates between the States, despite our historic tradition that all the States enjoy 'equal sovereignty. '" NAMUDNO, 129 S.Ct. at 2512 (quoting United States v. Louisiana, 363 U.S. 1, 16 (1960) (other citations omitted)).
b. "Distinctions can be justified in some cases. 'The doctrine of the equality of States ... does not bar ... remedies for local evils which have subsequently appeared.'
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Case 1:10-cv-00651-JDB Document 1 Filed 04/27/10 Page 20 of 21
Katzenbach, 383 U.S. at 328-29. But a departure from the fundamental principle of equal sovereignty requires a showing that a statute's disparate geographic coverage is sufficiently related to the problem that it targets." NAMUDNO, 129 S. Ct. at 2512.
c. Because Section 4(b)' s coverage formula is not "sufficiently related to the problem that it targets" it violates the principle of equal sovereignty embodied in the Tenth Amendment and Article IV of the Constitution.
PRAYER FOR RELIEF 44. WHEREFORE, Plaintiff prays that the Court:
(a) Declare Section 4(b) and Section 5 of the VRA unconstitutional; (b) Issue a permanent injunction against Defendant Attorney General Eric H. Holder, Jr. enjoining the enforcement of Section 4(b) and Section 5 of the VRA; (c) Award Plaintiff its reasonable attorneys' fees and costs for bringing this action; and (d) Order such other and further relief as the Court may deem just and proper.
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Case 1:10-cv-00651-JDB Document 1 Filed 04/27/10 Page 21 of 21

Dated: April 27. 2010
I ,:..~ ) /; j~(.r, ;;'"-(.;' t/ /~-" eftt VI ~~,----X_'--c;-(.,--,~-/--.
hank C. Ellis. Jr. '. _ WALLACE, ELLIS, FOWLER & I-lEAD 113 North Main Street Columbiana. AL 35051 Tel.: (205) 669-6783 Fax: (205) 669-4932

Respectfully submitted.
-~~'.~.~~ ...
Bert W. Rein'(D.C. Bar No. 067215) William S. CQl1S0Yoy* (D.C. Bar No. 493423) , Thomas R. McCarthy (D.C. Bar No. 489651) WILEY REIN LLP 1776 K Street, NW Washington, DC 20006 Tel.: (202) 719-7000 Fax: (202) 719-7049

* Counsel oj'Record

21

 
 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

SHELBY COUNTY, ALABAMA,
Plaintiff, v.
ERIC H. HOLDER, Jr., in his official capacity as Attorney General of the United States,
Defendant.

Civil Action No. 10-0651 (JDB)

MEMORANDUM OPINION Section 5 of the Voting Rights Act of 1965 ("the Act") prevents certain "covered" jurisdictions from implementing any change to voting practices or procedures unless and until the jurisdiction demonstrates to federal authorities that the change "neither has the purpose nor will have the effect of denying or abridging the right to vote on account of race or color." 42 U.S.C. § 1973c. Praised by some as the centerpiece of the most effective civil rights legislation ever enacted, Section 5 has been condemned by others as an impermissible federal encroachment on state sovereignty. In 2009, the Supreme Court addressed Congress's 2006 extension of Section 5 and, although avoiding the merits of a facial constitutional challenge to Section 5's "preclearance" obligation, nonetheless expressed concern about the provision's continued vitality, noting that "[t]he Act's preclearance requirements and its coverage formula raise serious constitutional questions." Nw. Austin Mun. Util. Dist. No. One v. Holder, 129 S. Ct. 2504, 2513 (2009) ("Nw. Austin II"). Today, those serious constitutional questions can no longer be avoided. Shelby County,
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Alabama ("Shelby County" or "plaintiff"), a jurisdiction covered by Section 4(b) of the Act, 42 U.S.C. § 1973b(b), has brought this suit against the Attorney General ("defendant") seeking a declaratory judgment that Section 5 and Section 4(b) are facially unconstitutional, and a permanent injunction prohibiting defendant from enforcing these provisions. Compl. ¶¶ 1, 44(a)(b). Specifically, Shelby County alleges that Section 4(b)'s coverage formula and Section 5's preclearance obligation for covered jurisdictions exceed Congress's enforcement authority under the Fourteenth and Fifteenth Amendments, and violate the principle of "equal sovereignty" embodied in the Tenth Amendment and Article IV of the U.S. Constitution. Id. ¶¶ 36-43.
This Court is mindful that "judging the constitutionality of an Act of Congress is 'the gravest and most delicate duty that [it] is called on to perform.'" Nw. Austin II, 129 S. Ct. at 2513 (quoting Blodgett v. Holden, 275 U.S. 142, 147-48 (1927) (Holmes, J., concurring)). That duty is all the more sensitive where, as here, the challenged statute seeks to enforce the core Fifteenth Amendment prohibition against denial of the franchise on the basis of race. The Fifteenth Amendment provides that "[t]he right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude." U.S. CONST. amend. XV, § 1. Yet 95 years after the Amendment's ratification, the struggle for the realization of this constitutional guarantee was far from complete. See H.R. Rep. No. 89-439, at 2439 (1965). In 1965, literacy tests, poll taxes, and other devices were still being "widely used" in certain regions of the country as part of "a calculated plan to deprive Negroes of their right to vote." Id. at 2443. When traditional litigation proved ineffective to counter "those determined to circumvent the guarantees of the 15th amendment," id. at 2441, Congress decided that "the wrong to our citizens is too serious -- the damage to our
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national conscience is too great not to adopt more effective measures than exist today," id. at 2442. Hence, almost a century after the Fifteenth Amendment was ratified, Congress passed the Voting Rights Act of 1965 -- with Section 5 at its core -- in order "to make the guarantees of the Fifteenth Amendment finally a reality for all citizens." Allen v. State Bd. of Elections, 393 U.S. 544, 556 (1969). Congress reauthorized the Act three times (in 1970, 1975 and 1982), and the Supreme Court upheld each reauthorization against constitutional challenges. See Nw. Austin II, 129 S. Ct. at 2510.
Certainly, today Section 5's continued constitutionality "must be judged with reference to the historical experience which it reflects." South Carolina v. Katzenbach, 383 U.S. 301, 308 (1966). But the Supreme Court has also made clear that history alone cannot provide a valid basis for upholding Section 5 indefinitely; rather, "the Act imposes current burdens and must be justified by current needs." Nw. Austin II, 129 S. Ct. at 2512. This Court has now carefully reviewed the extensive 15,000-page legislative record that Congress amassed in support of its 2006 reauthorization of Section 5 and Section 4(b). It is, of course, Congress that is charged in the first instance under the Fifteenth Amendment with formulating the legislation needed to enforce it. Id. at 2513. Bearing in mind both the historical context and the extensive evidence of recent voting discrimination reflected in that virtually unprecedented legislative record, the Court concludes that "current needs" -- the modern existence of intentional racial discrimination in voting -- do, in fact, justify Congress's 2006 reauthorization of the preclearance requirement imposed on covered jurisdictions by Section 5, as well as the preservation of the traditional coverage formula embodied in Section 4(b). Applying the standard of review articulated by the Supreme Court in City of Boerne v. Flores, 521 U.S. 507 (1997), this Court finds that Section 5
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remains a "congruent and proportional remedy" to the 21st century problem of voting discrimination in covered jurisdictions.
BACKGROUND I. The History of the Voting Rights Act of 1965
The Voting Rights Act of 1965 "was designed by Congress to banish the blight of racial discrimination in voting." Katzenbach, 383 U.S. at 308. Although the Fifteenth Amendment guaranteed African-American citizens the right to vote as early as 1870, southern states quickly responded by creating a series of voting qualifications and devices to perpetuate black disenfranchisement. See id. at 310-311; see also H.R. Rep. No. 89-439, at 2439-40. None of this new voting legislation mentioned race on its face, but it was nonetheless "motivated entirely and exclusively by a desire to exclude the Negro from voting." H.R. Rep. No. 89-439, at 2443, 2451. Southern states imposed poll taxes, which disproportionately burdened African-Americans as a result of their comparatively lower incomes. See id. at 2451-53. They enacted literacy requirements as a precondition to voting "based on the fact that as of 1890 . . . more than twothirds of the adult Negroes [in southern states] were illiterate while less than one-quarter of the adult whites were unable to read or write." Katzenbach, 383 U.S. at 311. And they adopted alternate tests, such as grandfather clauses and property qualifications, in order to "assure that white illiterates would not be deprived of the franchise." Id.
Not only were these tests intentionally discriminatory in their design, but southern voting officials were given unfettered discretion to administer them in a discriminatory fashion. Officials would refuse to accept poll taxes from blacks seeking to pay them, or would withhold poll tax exemption certificates from otherwise-qualified black applicants. See H.R. Rep. No. 89-
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439, at 2452. They would provide whites with "easy versions" of literacy tests or excuse them altogether, but demand that blacks pass "difficult versions . . . without the slightest error." Katzenbach, 383 U.S. at 312-13. Other voting qualifications -- including the infamous "goodmorals requirement" and "constitutional interpretation" tests -- were so inherently "vague and subjective" that they "constituted an open invitation to abuse at the hands of voting officials." Id.
In addition to these methods of direct disenfranchisement, southern officials before 1965 also enacted laws designed to dilute black voting strength, if and when blacks were able to register and cast ballots. Specifically, southern officials "gerrymandered election districts, instituted at-large elections, annexed or deannexed land as it fit their racial and partisan interests, and required huge bonds of officeholders." J. Morgan Kousser, The Strange, Ironic Career of Section 5 of the Voting Rights Act, 1965-2007, 86 TEX. L. REV. 667, 678-79 (2008); see also To Examine the Impact and Effectiveness of the Voting Rights Act, Hearing Before the Subcomm. on the Constitution of the H. Comm. on the Judiciary, 109th Cong. 1138 (Oct. 18, 2005) ("Impact and Effectiveness") (Chandler Davidson and Bernard Grofman, eds., Quiet Revolution in the South: The Impact of the Voting Rights Act 1965-1990 (Princeton University Press 1994)). These tactics aimed at reducing the ability of blacks to elect candidates of their choice -sometimes referred to as "[d]isenfranchisement by indirection" -- were widely employed throughout the South in the late nineteenth century, and they reemerged during the "Second Reconstruction" of the mid-twentieth century as well. See 1 Voting Rights Act: Evidence of Continued Need, Hearing Before the Subcomm. on the Constitution of the H. Comm. on the Judiciary, 109th Cong. 142 (Mar. 8, 2006) (hereinafter, "1 Evidence of Continued Need") (National Commission on the Voting Rights Act, Protecting Minority Voters: The Voting Rights
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Act at Work 1982-2005 (Feb. 2006) (hereinafter, "Nat'l Comm'n Report")); see also An Introduction to the Expiring Provisions of the Voting Rights Act and Legal Issues Relating to Reauthorization, Hearing Before the S. Comm. on the Judiciary, 109th Cong. 206 (May 9, 2006) ("Introduction to Expiring Provisions") (prepared statement of Chandler Davidson).
The Supreme Court eventually responded to these attempts to evade the requirements of the Reconstruction Amendments by striking down some of the most egregious practices used to impede blacks from effectively exercising their right to vote. See Katzenbach, 383 U.S. at 31112 (internal citations omitted). The Court invalidated grandfather clauses in 1915, see Guinn v. United States, 238 U.S. 347 (1915); Myers v. Anderson, 238 U.S. 368 (1915); outlawed the socalled "white primary" in 1944, see Smith v. Allwright, 321 U.S. 649 (1944); and condemned racial gerrymandering in 1960, when the city of Tuskegee, Alabama, attempted to transform its square-shape into "a strangely irregular twenty-eight-sided figure," which had the effect of removing "from the city all save four or five of its 400 Negro voters while not removing a single white voter or resident," Gomillion v. Lightfoot, 364 U.S. 339, 341 (1960).1
Congress also responded to southern states' sophisticated disenfranchisement strategies by enacting civil rights legislation in 1957, 1960, and 1964, which sought to "facilitat[e] case-bycase litigation against voting discrimination." Katzenbach, 383 U.S. at 313. But it soon became apparent that "case-by-case" litigation would not be sufficient to protect African-Americans' access to the ballot. See H.R. Rep. No. 89-439, at 2440-41. Not only was litigation expensive and slow, but even where it proved successful, southern officials would often ignore court orders,
1 Reversing the lower court's dismissal of the case, the Supreme Court emphasized that the Fifteenth Amendment "nullifies sophisticated as well as simple-minded modes of discrimination." Gomillion, 364 U.S. at 342 (internal quotation marks and citation omitted).
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"close[] their registration offices to freeze the voting rolls," or "merely switch[] to discriminatory devices not covered by the federal decrees." Katzenbach, 383 U.S. at 314. As Congress explained, "[b]arring one contrivance too often has caused no change in result, only in methods." H.R. Rep. No. 89-439, at 2441. Hence, in 1965 Congress decided that "sterner and more elaborate measures" were needed to combat the "insidious and pervasive evil which had been perpetrated in certain parts of our country through unremitting and ingenious defiance of the Constitution." Katzenbach, 383 U.S. at 309.
To craft these measures effectively, the Senate and House Committees on the Judiciary held hearings for nine days, during which they discussed 122 proposed voting rights bills and heard testimony from 67 witnesses. See id.; see also H.R. Rep. No. 89-439, at 2438. The House debated the legislation for three full days, while the Senate discussed the Act for almost a month. See Katzenbach, 383 U.S. at 308. Ultimately, when it came time to vote, "the verdict of both chambers was overwhelming": the Voting Rights Act of 1965 passed by a margin of 328-74 in the House, and 79-18 in the Senate. Id.; see also 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.).
The Act's basic prohibition against racial discrimination in voting is contained in Section 2, which provides that "[n]o voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color." 42 U.S.C. § 1973. Although Section 2 echoes the language of the Fifteenth Amendment, at least since 1982 it has been interpreted to prohibit a broader category of conduct than that which the Amendment itself proscribes, as it forbids all electoral practices with
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discriminatory "results," not just those enacted with a discriminatory purpose. Compare City of Mobile v. Bolden, 446 U.S. 55, 62 (1980) (holding that Section 2 merely restates "the prohibitions already contained in the Fifteenth Amendment" and that "racially discriminatory motivation is a necessary ingredient of a Fifteenth Amendment violation") with S. Rep. No. 97417, at 28 (1982) (explaining Congress's intent to amend Section 2 in response to City of Mobile to make clear that a plaintiff can establish a Section 2 violation "without proving any kind of discriminatory purpose"). Other provisions of the Voting Rights Act ban poll taxes, 42 U.S.C. § 1973h, prohibit voter intimidation and coercion, 42 U.S.C. § 1973i(b), and establish civil and criminal sanctions for the deprivation of rights secured by the Act, 42 U.S.C. § 1973j.
In addition to these permanent provisions -- which apply nationwide -- the Act sets forth "a complex scheme of stringent remedies aimed at areas where voting discrimination has been the most flagrant." Katzenbach, 383 U.S. at 315. These targeted provisions are temporary, and only apply to jurisdictions that are "covered" under Section 4(b). For example, Section 4(a) of the Act bans the use of voting tests in all covered jurisdictions, see 42 U.S.C. § 1973b(a), while Section 8 authorizes the Attorney General to send federal observers to enter polling places and monitor elections in covered jurisdictions when "necessary to enforce the guarantees of the 14th or 15th amendment," 42 U.S.C. § 1973f(a)(2); see also H.R. Rep. No. 109-478, at 91 (2006).2
Section 5, however, remains the most innovative -- and the most controversial -- of the Act's targeted, temporary provisions. Under Section 5, a covered jurisdiction cannot make any changes to its voting qualifications, standards, practices, or procedures unless those changes are
2 Under Section 3(a) of the Act, federal observers may also be assigned to non-covered jurisdictions where it is deemed "appropriate to enforce the voting guarantees of the fourteenth or fifteenth amendment." See 42 U.S.C. § 1973a(a); see also H.R. Rep. No. 109-478, at 91.
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first "submitted to and approved by a three-judge Federal District Court in Washington, D.C., or the Attorney General." See Nw. Austin II, 129 S. Ct. at 2509; 42 U.S.C. § 1973c. Preclearance under Section 5 will only be granted if a jurisdiction can show that its proposed voting change "neither 'has the purpose nor will have the effect of denying or abridging the right to vote on account of race or color.'" Nw. Austin II, 129 S. Ct. at 2509 (quoting 42 U.S.C. § 1973c(a)).
Section 5 constituted a direct response to the "common practice in some jurisdictions of staying one step ahead of the federal 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). Prior to 1965, such novel methods of minority disenfranchisement would continue to operate "until the Justice Department or private plaintiffs were able to sustain the burden of proving that the new law, too, was discriminatory." Id. But with the passage of Section 5, Congress "shift[ed] the advantage of time and inertia from the perpetrators of the evil to its victim," Katzenbach, 383 U.S. at 328. Rather than requiring minority voters to sue to challenge discriminatory voting practices after their implementation, Section 5 places the burden on covered jurisdictions to show their voting changes are nondiscriminatory before those changes can be put into effect. See id.
If a jurisdiction covered by Section 5 chooses to submit its proposed electoral change to the Attorney General for preclearance, and the Attorney General does not interpose an objection to the change within 60 days, the change may be implemented as proposed. See 42 U.S.C. § 1973c(a); see also City of Rome v. United States, 446 U.S. 156, 170 (1980). If the Attorney General does interpose an objection, the submitting jurisdiction "may at any time request the Attorney General to reconsider an objection," see 28 C.F.R. § 51.45(a), or it may institute a declaratory judgment action before a three-judge panel of this Court, seeking "de novo
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consideration of whether the method of election violates rights protected by the Voting Rights Act or the Constitution," Cnty. Council of Sumter Cnty. v. United States, 555 F. Supp. 694, 70607 (D.D.C. 1983) (three-judge court); see also City of Rome v. United States, 450 F. Supp. 378, 381-82 (D.D.C. 1978) (three-judge court), aff'd, 446 U.S. 156 (1980) (explaining that "even if . . . the Attorney General objects to certain proposed electoral changes, the applicant-jurisdiction can always seek . . . a declaratory judgment from a three-judge court in this District . . . "); 28 C.F.R. § 51.11 (noting that "[s]ubmission to the Attorney General does not affect the right of the submitting authority to bring an action in the U.S. District Court for the District of Columbia for a declaratory judgment"). However, if the jurisdiction does not receive federal preclearance from either the Attorney General or a three-judge panel of this Court, the change to its voting practice or procedure may not be implemented.
Section 4(b) establishes the formula that determines which jurisdictions are subject to Section 5's preclearance requirements (and the other temporary provisions of the Act). As originally enacted, a jurisdiction was "covered" under Section 4(b) if it maintained a voting test or device as of November 1, 1964, and had less than 50% voter registration or turnout in the 1964 presidential election. See 1965 Act § 4(b).3 Congress found that the combined presence of one of these "tests or devices" and low voter registration or turnout in a particular jurisdiction made it "a strong probability that low registration and voting are a result of racial discrimination in the use of such tests." H.R. Rep. No. 89-439, at 2444. The jurisdictions originally covered by
3 A voting "test or device" was defined by statute as a requirement that a person "(1) demonstrate the ability to read, write, understand, or interpret any matter, (2) demonstrate any educational achievement or his knowledge of any particular subject, (3) possess good moral character, or (4) prove his qualifications by the voucher of registered voters or members of any other class." Id. § 4(c).
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this formula were Alabama, Georgia, Louisiana, Mississippi, South Carolina, and Virginia. See 28 C.F.R. pt. 51 app. Thirty-nine counties in North Carolina and one county in Arizona also qualified for coverage as separately designated political subdivisions. Id.
It was no coincidence that the six states originally covered in their entirety by Section 4(b) -- and therefore subject to preclearance under Section 5 -- were those southern states with the worst historical records of racial discrimination in voting. The drafters of the Act purposefully designed its coverage formula "to pick up the core Southern states that had been bastions of Jim Crow." Introduction to the Expiring Provisions 221 (statement of Samuel Issacharoff). As one scholar has explained, "those who wrote the legislation knew the states they wanted to 'cover' and, by a process of trial and error, determined the participation level that would single them out." 1 Voting Rights Act: Section 5 of the Act – History, Scope, and Purpose, Hearing before the Subcomm. on the Constitution of the H. Comm. on the Judiciary, 109th Cong. 68 (Oct. 25, 2005) ("1 History, Scope, & Purpose") (Abigail Thernstrom, Whose Votes Count? Affirmative Action and Minority Rights (Harvard University Press 1987)). The reverse-engineered, percentage-based "trigger" for coverage under the Act was, in other words, "a formally neutral device for capturing a more historically based truth." The Continuing Need for Section 5 Pre-Clearance, Hearing before the S. Comm. on the Judiciary, 109th Cong. 99 (May 16, 2006) ("Continuing Need") (responses of Pamela S. Karlan to questions submitted by Senators Leahy, Kennedy, Kohl, Cornyn, and Coburn) ("Karlan Responses").
But Congress also recognized the potential that Section 4(b)'s coverage formula would be over- or under-inclusive, and hence created mechanisms whereby jurisdictions could "bail out" of or "bail-in" to Section 5's requirements. See 1965 Act § 4(a), § 3(c). In order to successfully
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"bail out" under the version of Section 4(a) now in effect, a jurisdiction must obtain a declaratory judgment from a three-judge court confirming that "for the previous ten years it has not used any forbidden voting test, has not been subject to any valid objection under § 5, and has not been found liable for other voting rights violations." Nw. Austin II, 129 S. Ct. at 2509. The jurisdiction must also show "that it has 'engaged in constructive efforts to eliminate intimidation and harassment of voters,' and similar measures." Id. (quoting 42 U.S.C. § 1973b(a)(1)(A)-(F)). By the same token, a court can require a jurisdiction to "bail-in" to the requirements of Section 5 if it finds that "violations of the fourteenth or fifteenth amendment justifying equitable relief have occurred within the territory of such State or political subdivision." 42 U.S.C. § 1973a(c). Specifically, a court presiding over a voting discrimination suit against a state or political subdivision may retain jurisdiction over the suit "for such a period as it may deem appropriate," and may, during that time, require that the defendant-jurisdiction be subject to preclearance. Id.
Shortly after Congress enacted the Voting Rights Act, South Carolina brought suit challenging the constitutionality of Section 5's preclearance requirement, Section 4(b)'s coverage formula, and several of the Act's other temporary provisions, on the grounds that they exceeded Congress's Fifteenth Amendment enforcement authority and violated "[t]he doctrine of the equality of the states." Katzenbach, 383 U.S. at 323, 328. Rejecting these arguments, the Supreme Court explained that "[a]s against the reserved powers of the States, Congress may use any rational means to effectuate the constitutional prohibition of racial discrimination in voting." Id. at 325. Although recognizing that Section 5 "may have been an uncommon exercise of congressional power," the Court noted that "exceptional conditions can justify legislative measures not otherwise appropriate." Id. at 334. With respect to the coverage formula in Section
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4(b), the Court found that Congress had considered "reliable evidence of actual voting discrimination in a great majority of the States . . . affected by the . . . Act," and had created a formula that was "relevant to the problem of voting discrimination." Id. at 329. "No more was required," the Court said, "to justify the application to these areas of Congress' express powers under the Fifteenth Amendment." Id. at 330.
Although Section 5 was originally intended to be in effect for only five years, Congress has reauthorized Section 5 on four occasions -- first in 1970 (for five years), then in 1975 (for seven years), again in 1982 (for 25 years), and most recently in 2006 (for 25 years). See Nw. Austin II, 129 S. Ct. at 2510. When Section 5 was reauthorized in 1970 and again in 1975, Section 4(b)'s coverage formula was amended each time, first to include (1) jurisdictions that maintained a voting test or device as of November 1, 1968, and had less than 50% voter registration or turnout in the 1968 presidential election; and then to add (2) jurisdictions that maintained a voting test or device as of November 1, 1972, and had less than 50% voter registration or turnout in the 1972 presidential election. See Pub. L. No. 91-285, 84 Stat. 314, 315 (1970) ("1970 Amendments"); Pub. L. No. 94-73, 89 Stat. 400, 401 (1975) ("1975 Amendments"). In the 1975 Amendments, Congress also added Section 4(f) to the Act, which bars voting discrimination against language minorities and expands the definition of "test or device" in Section 4 to include the provision of English-only voting materials in jurisdictions where more than 5% of the voting-age population are members of a single language minority. See 1975 Amendments § 203, 89 Stat. at 401-02 (codified as amended at 42 U.S.C. § 1973b(f)).
Five years after the enactment of the 1975 Amendments, the Supreme Court was again confronted with a challenge to the constitutionality of Section 5, and confirmed that the
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provision's reauthorization constituted a permissible exercise of Congress's Fifteenth Amendment enforcement authority. See City of Rome, 446 U.S. at 182. Just as Shelby County has argued here with respect to the 2006 reauthorization of Section 5, Rome, Georgia, argued there that "even if the Act and its preclearance requirement were appropriate means of enforcing the Fifteenth Amendment in 1965, they had outlived their usefulness by 1975, when Congress extended the Act for another seven years." 446 U.S. at 180. The Supreme Court, however, declined Rome's "invitation to overrule Congress' judgment that the 1975 extension was warranted." Id. Acknowledging the significant gains that had been made in minority political participation since 1965, the Court nonetheless expressed concern that "'[a]s registration and voting of minority citizens increases [sic], other measures may be resorted to which would dilute increasing minority voting strength.'" Id. at 181 (quoting H.R. Rep. No. 94-196, at 10-11 (1975)). The Court emphasized that the Voting Rights Act had been enacted to remedy nearly a century of racial discrimination in voting, and that the 1975 extension of the Act's temporary provisions occurred just ten years after the Act's passage. Id. at 182. Thus viewed, the Court found "Congress's considered determination that at least another 7 years of statutory remedies were necessary to counter the perpetuation of 95 years of pervasive voting discrimination" to be both "unsurprising and unassailable." Id.
Two years after City of Rome, Congress reauthorized Section 4(b) and Section 5 a third time, and in so doing liberalized the procedures for bailout in several significant ways. Prior to 1982, only covered states (such as Alabama) or separately-covered political subdivisions (such as individual North Carolina counties) were eligible to seek bailout -- even though all political subdivisions within covered states were required to seek preclearance for their proposed electoral
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changes. See Nw. Mun. Util. Dist. No. One v. Holder, 573 F. Supp. 2d 221, 227-28 (D.D.C. 2008) ("Nw. Austin I"), rev'd and remanded, Nw. Austin II, 129 S. Ct. 2504 (2009). After the 1982 Amendments, political subdivisions within covered states (such as, for example, Shelby County) could themselves petition for bailout. See Pub. L. No. 97-205 § 2(b)(2), 96 Stat. 131, 131 ("1982 Amendments") (codified as amended at 42 U.S.C. § 1973b(a)(1)). Moreover, the 1982 Amendments changed the substantive criteria for bailout so that jurisdictions with "clean" voting rights records over the previous ten years were bailout-eligible; under prior versions of the Act, there had been no such "bailout opportunity for jurisdictions that eliminated discriminatory voting tests and practices that [had been] used at the time of initial coverage." Nw. Austin I, 573 F. Supp. 2d at 228 (internal quotation marks and citation omitted) (brackets in original). In this manner, the 1982 Amendments created an incentive for "those jurisdictions with post-1965 histories of discrimination . . . to improve their voting rights records." Id.
The 1982 Amendments also extended the Act's temporary provisions for the longest period of time to date. Whereas the 1970 and 1975 Amendments had extended the Act's temporary provisions for only five and seven years, respectively, the 1982 Amendments extended Section 5 and Section 4(b) for a full 25 years. See Nw. Austin II, 129 S. Ct. at 2510. The 1982 Amendments did not, however, change the coverage formula in Section 4(b). See 1982 Amendments, 96 Stat. at 131-133. II. The 2006 Reauthorization of Section 5 and Section 4(b)
As a result of the 25 year extension imposed by the 1982 Amendments, Section 5 and the Act's other temporary provisions were set to expire in 2007. Hence, in the fall of 2005, the House Committee on the Judiciary began to examine "the effectiveness of the temporary
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provisions of the VRA over the last 25 years" in order to determine whether another renewal of the Act's temporary provisions was warranted. See H.R. Rep. No. 109-478, at 5. The result was "one of the most extensive legislative records in the Committee on the Judiciary's history." Id.
From October 2005 through May 2006, the House Judiciary Committee held ten oversight hearings and two legislative hearings before the Subcommittee on the Constitution, at which it heard from 46 witnesses and assessed over 12,000 pages of testimony, documentary evidence, and statistical analyses. Id. The Subcommittee on the Constitution received and incorporated into the legislative record lengthy reports from several civil rights organizations and voting rights scholars, including: (1) a report by the ACLU's Voting Rights Project, assessing 293 cases involving allegations of voting discrimination since 1982, see 1 Evidence of Continued Need 378-1270 (Laughlin McDonald and Daniel Levitas, The Case for Extending and Amending the Voting Rights Act: Voting Rights Act Litigation, 1982-2006 (Mar. 2006)) (hereinafter, "ACLU Report"); (2) a report by the National Commission on the Voting Rights Act, compiling evidence of voting discrimination since 1982 based on testimony gathered at ten field hearings across the country, as well as "governmental, legal, media and scholarly sources," see id. at 121 (Nat'l Comm'n Report); and (3) a study conducted by Professor Ellen Katz and the Voting Rights Initiative of the University of Michigan Law School, which analyzed 323 post-1982 lawsuits that raised claims under Section 2 of the Voting Rights Act, see Impact and Effectiveness 974 (Ellen Katz, Documenting Discrimination in Voting: Judicial Findings Under Section 2 of the Voting Rights Act Since 1982 (Nov. 2005)) (hereinafter, "Katz Study").
The Senate Judiciary Committee held nine of its own hearings to discuss the reauthorization of the Act's temporary provisions, at which it, too, received testimony from 46
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witnesses, including experienced civil rights litigators, law professors, and Department of Justice attorneys. See S. Rep. No. 109-295, at 2-4, 10 (2006). All told, the legislative record compiled by the two houses is over 15,000 pages in length, and includes "statistics, findings by courts and the Justice Department, and first-hand accounts of discrimination." See id. at 10. On the basis of this extensive record, Congress determined that "40 years has not been a sufficient amount of time to eliminate the vestiges of discrimination following nearly 100 years of disregard for the dictates of the 15th amendment." See Pub. L. No. 109-246, § 2(b)(7), 120 Stat. 577, 578 (2006) ("2006 Amendments"). Despite the effectiveness of Section 5 in deterring some attempts at voting discrimination, the House Judiciary Committee found that "instances of discrimination and efforts to discriminate against minority voters continue, thus justifying reauthorization of the VRA's temporary provisions." H.R. Rep. No. 109-478, at 24-25.
As evidence of continued discrimination in voting, Congress pointed to the "hundreds of objections" to voting changes that were interposed by the Attorney General since 1982; the number of voting changes withdrawn from consideration after so-called "more information requests" from the Attorney General; the number of "section 5 enforcement actions undertaken by the Department of Justice in covered jurisdictions since 1982," in which the Department has sought to compel jurisdictions to submit their voting changes for preclearance; the number of requests for preclearance that have been denied by three-judge panels of this Court; the "continued filing of section 2 cases" in covered jurisdictions; the existence of racially polarized voting "in each of the jurisdictions covered by the expiring provisions" of the Act; and "the tens of thousands of Federal observers dispatched to monitor polls" in covered jurisdictions. See 2006 Amendments § 2(b)(3)-(4), (8), 120 Stat. at 577-78. Such evidence, Congress found,
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"demonstrates that, without the continuation of the Voting Rights Act of 1965 protections, racial and language minority citizens will be deprived of the opportunity to exercise their right to vote, or will have their votes diluted, undermining the significant gains made by minorities in the last 40 years." 2006 Amendments § 2(b)(9), 120 Stat. at 578.
Hence, Congress passed H.R. 9 -- entitled the Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting Rights Act Reauthorization and Amendments Act of 2006 -- which reauthorized Section 5 (and the coverage formula in Section 4(b)) for another 25 years. See 2006 Amendments § 4; 42 U.S.C. § 1973b(a)(8). The congressional support for the Act's 2006 reauthorization was even more "overwhelming" than it had been for the Act's passage in 1965. Whereas the 1965 Act passed by a vote of 328 to 74 in the House and 79 to 18 in the Senate, see Katzenbach, 383 U.S. at 309, the 2006 Amendments passed by a vote of 390 to 33 in the House and 98 to 0 in the Senate, see 152 Cong. Rec. H5207 (daily ed. July 13, 2006); 152 Cong. Rec. S8012 (daily ed. July 20, 2006). President George W. Bush then signed the bill into law on July 27, 2006. See 120 Stat. at 581.
In addition to extending the operation of Section 5, the 2006 Amendments made two substantive changes to the Act's preclearance standard. First, Congress clarified its intent with respect to the meaning of the word "purpose" in Section 5 in response to the Supreme Court's decision in Reno v. Bossier Parish Sch. Bd., 528 U.S. 320 (2000) ("Bossier II"). Section 5, by its terms, only allows a voting change to be precleared if the change "neither has the purpose nor will have the effect of denying or abridging the right to vote on account of race or color." See 42 U.S.C. § 1973c(a). Prior to Bossier II, this provision was interpreted to bar preclearance of voting changes that either (1) were enacted with a discriminatory purpose; or (2) had a
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discriminatory, retrogressive effect -- i.e., changes that worsened the position of minority voters relative to the status quo. See Bossier II, 528 U.S. at 324 (explaining that a redistricting plan only has a prohibited discriminatory "effect" under Section 5 if it is retrogressive); Beer, 425 U.S. at 141 (noting that "the purpose of s[ection] 5 has always been to insure that no voting-procedure changes would be made that would lead to a retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise"). In Bossier II, however, the Supreme Court -- for the first time -- held that the "purpose" prong of Section 5 only prohibits electoral changes that are enacted with a discriminatory and retrogressive purpose. See 528 U.S. at 341. In other words, after Bossier II, a redistricting plan that was passed for purely discriminatory reasons (such as to purposefully avoid the creation of a new majority-minority district), but that was not intended to make minority voters any worse off than they had been under the preexisting plan (which, say, had no majority-minority districts), would not run afoul of Section 5's "purpose" prong. See id. (holding that Section 5 "does not prohibit preclearance of a redistricting plan with a discriminatory but nonretrogressive purpose").
Bossier II thus had the effect of reading the "purpose" prong "almost entirely out of Section 5." See Voting Rights Act: Section 5 – Preclearance Standards, Hearing before the Subcomm. on the Constitution of the House Comm. on the Judiciary, 109th Cong. 12 (Nov. 1, 2005) (hereinafter, "Preclearance Standards") (prepared statement of Mark A. Posner) (hereinafter, "Posner Prepared Statement"). As was the case prior to Bossier II, if a jurisdiction enacted an electoral change that reduced the ability of minority voters to elect candidates of their choice, the change would be denied preclearance under Section 5's "effects" prong (because it would have a retrogressive effect). Under Bossier II, then, the "purpose" prong would only serve
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as an independent bar to discriminatory voting changes where a jurisdiction "intend[ed] to cause retrogression, but then, somehow, messe[d] up and enact[ed] a voting change that [did] not actually cause retrogression to occur (the so-called 'incompetent retrogressor')." Id.
In 2006, the House Judiciary Committee explained that Bossier II's limitation of the "purpose" prong had been inconsistent with Congress's intent that Section 5 prevent not only purposefully retrogressive discriminatory voting changes, but also those "[v]oting changes that 'purposefully' keep minority groups 'in their place.'" See H.R. Rep. No. 109-478, at 68. Accordingly, as part of the 2006 Amendments, Congress restored the pre-Bossier II "purpose" standard by adding a provision to the statute that defined "purpose" in Section 5 to mean "any discriminatory purpose." See 2006 Amendments § 5(c), 120 Stat. at 581; 42 U.S.C. § 1973c(c) (emphasis added).
In a similar vein, Congress also responded to the Supreme Court's decision in Georgia v. Ashcroft, 539 U.S. 461 (2003), which had altered the preexisting standard for determining whether a voting change had a prohibited retrogressive effect under Section 5's "effects" prong. Prior to Georgia v. Ashcroft, the standard for assessing whether an electoral change violated the Section 5 "effects" test was "whether the ability of minority groups to participate in the political process and to elect their choices to office is . . . diminished . . . by the change affecting voting." Beer, 425 U.S. at 141 (quoting H.R. Rep. No. 94-196, at 10). In Georgia v. Ashcroft, however, the Court endorsed a less rigid, "totality of the circumstances" analysis for examining retrogressive effects, explaining that "any assessment of the retrogression of a minority group's effective exercise of the electoral franchise depends on an examination of all the relevant circumstances, such as the ability of minority voters to elect their candidate of choice, the extent
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of the minority group's opportunity to participate in the political process, and the feasibility of creating a nonretrogressive plan." 539 U.S. at 479. In reauthorizing the Act in 2006, Congress expressed concern that the Georgia v. Ashcroft framework had introduced "substantial uncertainty" into the administration of a statute that was "specifically intended to block persistent and shifting efforts to limit the effectiveness of minority political participation." See H.R. Rep. No. 109-478, at 70 (internal quotation marks and citation omitted). Hence, in an attempt to restore the simpler, "ability to elect" analysis articulated in Beer, see id. at 71, Congress added new language to the Act, stating that all voting changes that diminish the ability of minorities "to elect their preferred candidates of choice" should be denied preclearance under Section 5. See 2006 Amendments § 5(b), 120 Stat. at 581; 42 U.S.C. § 1973c(b).
For present purposes, even more significant than the substantive changes that Congress made in 2006 to Section 5's preclearance standard were the proposed changes that Congress considered -- but ultimately, did not make -- to Section 4(b)'s coverage formula. During the 2006 reauthorization hearings, there was extensive discussion of the potential need to revise the Act's coverage formula to take account of changed circumstances since 1975, when the formula had last been updated. Several Senators asked members of the academic community whether they believed Section 4(b)'s "trigger" should be based on voter registration and turnout data from the 2000 and 2004 presidential elections, rather than data from the 1964, 1968, and 1972 elections. See, e.g., Continuing Need 48-49 (responses of Anita S. Earls to questions submitted by Senators Coburn, Cornyn, Leahy, and Kohl) ("Earls Responses"); id. at 76, 85-86 (responses of Ronald Keith Gaddie to questions submitted by Senators Kohl, Cornyn, and Coburn) ("Gaddie Responses"); id. at 99-100, 103-04 (Karlan Responses); id. at 110-12 (responses of Richard H.
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Pildes to questions submitted by Senators Specter, Cornyn, Coburn, and Kohl) ("Pildes Responses"); Introduction to Expiring Provisions 36, 38 (responses of Richard L. Hasen to questions submitted by Senators Specter, Cornyn, and Sessions) ("Hasen Responses"); id. at 76 (responses of Samuel Issacharoff to questions submitted by Senators Specter, Sessions, and Cornyn) ("Issacharoff Responses").
Many voting rights scholars expressed the view that some sort of "updated trigger is called for." See, e.g., Continuing Need 85 (Gaddie Responses); Introduction to Expiring Provisions 36 (Hasen Responses) (explaining that "Congress should update the coverage formula based on data indicating where intentional state discrimination in voting on the basis of race is now a problem or likely to be one in the near future"); Introduction to Expiring Provisions 13 (statement of Samuel Issacharoff) (noting that a trigger based on "voter turnout figures from 1964 . . . risks appearing constitutionally antiquated by the proposed next expiration date of 2032"). But almost all agreed that updating the formula on the basis of voter turnout and registration data from the 2000 and 2004 presidential elections would be ill-advised. As one law professor explained, such a proposal "rest[s] on a fundamental misperception of the triggers," since Congress "did not pick the 1964, 1968, or 1972 elections as triggers because it thought something distinctive happened in any of those elections." See Continuing Need 99 (Karlan Responses). Rather, the use of election data from those years -- in conjunction with the presence of a prohibited voting test or device -- had served only as a proxy for identifying those "jurisdictions that had a long, open, and notorious history of disenfranchising minority citizens and diluting their voting strength whenever they did manage to register and cast ballots." Id.; see also Continuing Need 110 (Pildes Responses). For this reason, most scholars who testified
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before Congress were skeptical as to whether "tinkering with the coverage dates is necessarily the best way to make the Act more current." Introduction to Expiring Provisions 76 (Issacharoff Responses); see also Continuing Need 110 (Pildes Responses) (stating that "[m]echanically updating the coverage formula in this way would . . . not tie coverage appropriately to where problems are occurring today").
Nevertheless, the only amendment that was ultimately offered as a possible means of making Section 4(b)'s coverage formula more "current" proposed to do just that. Specifically, Representative Charlie Norwood of Georgia introduced an amendment that would have created a "rolling test" for coverage based on voter turnout in the three most recent presidential elections. See H. R. Rep. No. 109-554, at 2 (2006). Under the Norwood Amendment, a jurisdiction would only be subject to preclearance if it had "a discriminatory test in place or voter turnout of less than 50% in any of the three most recent presidential elections." See id.
The House's reaction to the Norwood Amendment was overwhelmingly negative. Representative James Sensenbrenner, Chairman of the House Judiciary Committee, decried the Amendment, claiming that it "not only guts the bill, but turns the Voting Rights Act into a farce." See 152 Cong. Rec. H5181 (daily ed. July 13, 2006). Although over 1,000 counties still would have been subject to preclearance under the Norwood Amendment's proposed formula, Hawaii would have been the only state covered in its entirety -- even though Hawaii has no discernible history of voting discrimination. See 152 Cong. Rec. H5179-81. Opponents of the Amendment condemned such results as evidence of the Amendment's "absurdity," and expressed concern that by severing Section 4(b)'s "connection to jurisdictions with proven discriminatory histories," the Amendment would place Section 5 in constitutional jeopardy. See 152 Cong. Rec. H5181.
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Ultimately, the Norwood Amendment was defeated, and the existing coverage formula in Section 4(b) remained intact. See 152 Cong. Rec. H5204; see also James Thomas Tucker, The Politics of Persuasion: Passage of the Voting Rights Act Reauthorization Act of 2006, 33 J. LEGIS. 205, 254-55 (2007) (describing the debate over the Norwood Amendment). Under that formula, which remains in existence today, a jurisdiction is subject to preclearance if it maintained a voting test or device in 1964, 1968, or 1972, and had voter turnout or registration below 50% in that year's presidential election. See 42 U.S.C. § 1973b(b). Currently, there are 16 states covered in whole or in part by Section 4(b), and therefore subject to preclearance under Section 5. See 28 C.F.R. pt. 51, app. Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas, and Virginia are covered in their entirety, while portions of California, Florida, Michigan, New Hampshire, New York, North Carolina, and South Dakota are also covered. Id. III. Northwest Austin
Shortly after the 2006 Amendments became effective, a Texas municipal utility district brought suit, seeking to bail out of the Act's requirements or, in the alternative, to challenge Section 5 on its face as "an unconstitutional overextension of Congress's enforcement power to remedy past violations of the Fifteenth Amendment." See Nw. Austin I, 573 F. Supp. 2d at 230 (internal quotation marks and citation omitted). Because the plaintiff-district sought a declaratory judgment that it was eligible for bailout, a three-judge panel of this Court was convened to hear the case. See id. (citing 42 U.S.C. § 1973b(a)(5)). The court first concluded that the district was not a "political subdivision" under Section 14(c)(2) of the Act, and thus could not petition for bailout pursuant to Section 4(a), which only authorizes states and "political
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subdivisions" to seek bailout. See id. at 230-35; see also § 1973b(a)(1). The court then proceeded to address the merits of the plaintiff's facial constitutional
challenge to the 2006 reauthorization of Section 5. Nw. Austin I, 573 F. Supp. 2d at 235-79. The court began by identifying the types of evidence of voting discrimination upon which Congress had relied in deciding to reauthorize Section 5 in 2006, which included evidence of (1) racial disparities in voter registration and turnout; (2) the number of minority elected officials; (3) objections to proposed voting changes under Section 5; (4) "more information requests" by the Attorney General in response to Section 5 preclearance submissions; (5) judicial preclearance suits brought by covered jurisdictions; (6) Section 5 enforcement actions brought by the Attorney General; (7) Section 2 litigation; (8) the dispatch of federal election observers; (9) racially polarized voting; and (10) Section 5's deterrent effect. Id. at 247. In a lengthy opinion replete with citations to the legislative record, the court analyzed each of these categories of evidence to determine whether there was sufficient proof of "contemporary discrimination in voting to justify Congress's decision to subject covered jurisdictions to section 5 preclearance for another twentyfive years." Id. at 265. Concluding that the legislative record did, in fact, contain "extensive contemporary evidence of intentional discrimination," id. at 266, the court decided there was "no basis for overturning Congress's judgment that preclearance - 'a vital prophylactic tool[]' remains necessary," id. at 279 (quoting H.R. Rep. No. 109-478, at 21).
On appeal, however, the Supreme Court reversed and remanded. In a decision that has since been criticized by some as "a questionable application of the doctrine of 'constitutional avoidance,'" see Richard L. Hasen, Constitutional Avoidance and Anti-Avoidance by the Roberts Court, 2009 SUP. CT. REV. 181 (2009); see also Ellen Katz, From Bush v. Gore to NAMUDNO:
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A Response to Professor Amar, 61 FLA. L. REV. 991, 992-93 (2009) (describing the Court's "statutory construction" of the bailout provision in Nw. Austin II as "contrived"), Justice Roberts, writing for an eight-justice majority, sidestepped the "big question" of Section 5's constitutionality by instead resolving the case on narrower, statutory grounds, see Nw. Austin II, 129 S. Ct. at 2508. Specifically, the Court found that the plaintiff-district qualified as a "political subdivision" eligible to petition for bailout -- even though it did not register voters and was therefore not a political subdivision as that term is defined in Section 14(c)(2) of the Act. See 42 U.S.C. § 1973l(c)(2) (defining "political subdivision" to include "any county or parish" or "any other subdivision of a State which conducts registration for voting").
According to the Court, "the statutory definition of 'political subdivision' in § 14(c)(2) does not apply to every use of the term 'political subdivision' in the Act." Nw. Austin II, 129 S. Ct. at 2515. Rather, the Court explained, the phrase "political subdivision" in Section 4(a) has a "broader" meaning than that set forth in Section 14(c)(2), and hence "all political subdivisions not only those described in § 14(c)(2) - are eligible to file a bailout suit" under Section 4(a). Id. at 2515-17 (emphasis added). As a political subdivision of Texas "in the ordinary sense of the term," the plaintiff-district was thus eligible to seek bailout. Id. at 2513. And because the district had framed its constitutional challenge to the 2006 reauthorization of Section 5 "as being 'in the alternative' to its statutory argument" for bailout, the majority saw no need to resolve the merits of the district's constitutional challenge. Id.
But the majority did take the opportunity to voice some concerns about the constitutionality of Section 5 and Section 4(b), and thereby presaged future challenges to Section 5 like that raised here by Shelby County. The Court in Nw. Austin II emphasized the substantial
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"federalism costs" imposed by Section 5, as well as the "dramatic improvements" in minority voter turnout and registration since the Act's passage. Id. at 2511. "Things have changed in the South," the Court wrote, explaining that minorities now register and vote at rates that "approach parity" with those of non-minorities, and that minority candidates "hold office at unprecedented levels." Id. The Court conceded that these "improvements are no doubt due in significant part to the Voting Rights Act itself, and stand as a monument to its success," but made clear that "[p]ast success alone . . . is not adequate justification to retain the preclearance requirements." Id.
The Court also raised concern about the continued constitutionality of the Act's coverage formula, noting that it is "based on data that is now more than 35 years old, and there is considerable evidence that it fails to account for current political conditions." Id. at 2512. The Court cited the fact that the "racial gap in voter registration and turnout is lower in the States originally covered by § 5 than it is nationwide." Id. Although the Court did not specify the precise nature of the differences between covered and non-covered jurisdictions that would be constitutionally necessary to justify Section 5's continued selective application, it did state that "a departure from the fundamental principle of equal sovereignty requires a showing that a statute's disparate geographic coverage is sufficiently related to the problem that it targets." Id. at 2512.
After identifying "serious constitutional questions" raised by the Act's coverage formula and preclearance requirement, however, the majority refrained from answering them. Id. at 2513. But Justice Thomas did not. Writing separately as the lone dissenter, he explained that he would have "decided the constitutional issue presented" and concluded "that the lack of current evidence of intentional discrimination with respect to voting renders § 5 unconstitutional." Id. at 2517, 2519 (Thomas, J., concurring in judgment in part, dissenting in part). According to Justice
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Thomas, "the constitutionality of § 5 has always depended on the proven existence of intentional discrimination so extensive that elimination of it through case-by-case enforcement would be impossible." Id. at 2524. He went on to explain that this kind of extensive intentional discrimination in voting -- which led the Court to uphold the constitutionality of Section 5 on prior occasions -- "no longer exists," citing the high minority voter registration rates in states such as Alabama, Louisiana, and Mississippi. Id. at 2525. Justice Thomas dismissed evidence of the so-called "second generation barriers" to voting upon which Congress had relied, noting that evidence of Section 5 enforcement actions, Section 2 suits, and federal observer coverage "bears no resemblance to the record initially supporting § 5, and is plainly insufficient to sustain such an extraordinary remedy." Id. at 2526. With respect to evidence of intentional voting discrimination contained in the 2006 legislative record and cited by the three-judge court, Justice Thomas found that these "discrete and isolated incidents" fell short of a "coordinated and unrelenting campaign to deny an entire race access to the ballot." Id. "Perfect compliance with the Fifteenth Amendment's substantive command is not now - nor has it ever been - the yardstick for determining whether Congress has the power to employ broad prophylactic legislation to enforce that Amendment," he explained. Id. IV. Shelby County, Alabama
Echoing the arguments of Justice Thomas, Shelby County brought this suit on April 27, 2010, asserting that "it is no longer constitutionally justifiable for Congress to arbitrarily impose on Shelby County and other covered jurisdictions disfavored treatment by forcing them to justify all voting changes to federal officials in Washington, D.C. for another twenty five years." See Compl. ¶ 35. Shelby County's history under the Voting Rights Act is extensive and forms a
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relevant backdrop to this case. As a political subdivision of Alabama, Shelby County has been subject to preclearance since 1965, based on the Attorney General's determination that Alabama used a prohibited voting test or device on November 1, 1964, and had voter turnout of less than 50% in the 1964 presidential election. See 28 C.F.R. pt. 51 app.; 30 Fed. Reg. 9897 (Aug. 7, 1965); see also 42 U.S.C. § 1973b, § 1973c, § 1973l(c)(2); Compl. ¶¶ 28-29. From 1965 to the filing of this suit, the Department of Justice has received at least 682 preclearance submissions from Shelby County and jurisdictions located wholly or partially within Shelby County. See Def.'s Mot. for Summ. J. ("Def.'s Mot.") [Docket Entry 54], Ex. 4, Decl. of Robert S. Berman ("Berman Decl.") ¶ 4. Shelby County itself has submitted at least 69 proposed voting changes to the Attorney General for preclearance. Id. ¶ 5.
Since 1965, the Department has lodged objections to five proposed voting changes submitted by jurisdictions located wholly or partially within Shelby County. Id. ¶ 8. Shelby County was also a defendant in the so-called Dillard litigation in the 1980s, in which black residents of Alabama challenged the at-large system used to elect Alabama county commissioners as a violation of Section 2 of the Voting Rights Act. See Dillard v. Crenshaw Cnty., 640 F. Supp. 1347, 1352-54 (M.D. Ala. 1986); see also Dillard v. Baldwin Cnty. Bd. of Educ., 686 F. Supp. 1459, 1461 (M.D. Ala. 1988) (reviewing history of Dillard litigation); Dillard v. Crenshaw Cnty., 748 F. Supp. 819, 821-23 (M.D. Ala. 1990) (describing Shelby County's involvement in Dillard). Although Shelby County was not one of the original nine defendants in Dillard, see Dillard, 640 F. Supp. at 1352, the plaintiffs in Dillard eventually raised claims against a total of 183 Alabama cities, counties, and school boards that employed at-large methods of election, including Shelby County, see Dillard, 686 F. Supp. at 1461.
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In the original Dillard lawsuit, the court concluded that the Alabama legislature had "engaged in a pattern and practice of using at-large election systems as an instrument for race discrimination." 640 F. Supp. at 1361. The court explained that the challenged at-large electoral systems had been created against the backdrop of Alabama's "unrelenting historical agenda, spanning from the late 1800's to the 1980's, to keep its black citizens economically, socially, and politically downtrodden, from the cradle to the grave." Id. at 1357. Moreover, the court noted, the Alabama legislature had "consistently enacted at-large systems for local governments during periods when there was a substantial threat of black participation in the political process." Id. at 1361. When viewed in light of the state's "undisputed history of racial discrimination," it became clear that the creation of at-large methods of election -- which did, in fact, have an "adverse racial impact" -- "was not adventitious but rather racially inspired." Id. Hence, the court found that preliminary injunctive relief with respect to the counties then defending their at-large election systems was warranted. Id. at 1373.
Despite the adverse judgment against the other Alabama counties with at-large electoral systems in place, Shelby County continued to deny that its at-large method for electing county commissioners violated Section 2, and the related case against it proceeded to trial. See Dillard, 748 F. Supp. at 822. While the case was under submission, however, Shelby County entered into a consent decree with the plaintiffs, under which it agreed to change its at-large electoral system to a "single-member district scheme" with one majority-black district. Id.
Most recently, on August 25, 2008, the Attorney General objected to a redistricting plan and 177 annexations submitted by the city of Calera, located within Shelby County. See Berman Decl. ¶¶ 9-10; id., Att. A. Calera's redistricting plan and annexations would have eliminated the
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city's sole majority-black district, which had been created pursuant to the consent decree in Dillard, and which had elected an African-American councilman for the past 20 years. See Berman Decl., Att. A. In its preclearance submission to the Attorney General, Calera conceded that it had, in fact, already adopted the 177 annexations without receiving advance preclearance for them. See id.; see also Berman Decl. ¶ 9. After the Attorney General lodged an objection to the annexations and the city's 2008 redistricting plan, Calera nonetheless proceeded to conduct elections based on these unprecleared voting changes. See Berman Decl. ¶ 11; id., Att. B ("Calera Compl.") ¶ 18.; id., Att. C ("Calera Consent Decree") at 3. The elections held under the objected-to plan and annexations resulted in the defeat of the African-American incumbent councilman. See id., Att. D.
The Attorney General responded by bringing a Section 5 enforcement action, seeking to prohibit Calera from certifying the results of its elections "based on the district boundaries and electorate to which the Attorney General ha[d] interposed a timely objection unless and until preclearance under Section 5 . . . is obtained." Calera Compl. at 7. The case was temporarily resolved through a consent decree, and the Attorney General subsequently withdrew his objection to the 177 annexations. See Calera Consent Decree; see also Berman Decl. ¶ 15; id., Att. F. The Attorney General did not, however, withdraw his objection to the 2008 redistricting plan. See Berman Decl. ¶ 15; id., Att. F.
Because of the Attorney General's objection to Calera's proposed voting changes, Shelby County argues that it is not eligible for bailout. Compl. ¶ 34(b) (citing 42 U.S.C. §
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1973b(a)(1)(E)).4 As a result of its alleged ineligibility for bailout and the 2006 reauthorization of Section 5, Shelby County claims that it now "will have to regularly seek preclearance in the near future" -- a process that, historically, has required the expenditure of "significant taxpayer dollars, time, and energy." See id. ¶¶ 32-33; Pl.'s Mot. for Summ. J. ("Pl.'s Mot.") [Docket Entry 5], Decl. of Frank C. Ellis, Jr. ("Ellis Decl.") ¶¶ 7-8.
Shelby County does not challenge any specific application of Section 5 to one of its proposed voting changes; rather, it seeks a declaration that Section 5 and Section 4(b) are facially unconstitutional, as well as a permanent injunction prohibiting the Attorney General from enforcing these provisions. See Compl. ¶¶ 1, 44(a)-(b). In Count I, Shelby County alleges that in reauthorizing Section 5 "for another twenty-five years in 2006, Congress lacked the evidence of intentional discrimination that warranted the enactment of the VRA in 1965 and its extensions in 1970, 1975, and 1982." Id. ¶ 38(c). Hence, Shelby County argues, because there is neither "'congruence and proportionality' . . . nor even a 'rational relationship' between the evidence compiled in support of the latest extension of Section 5 and the burdens imposed by that provision . . . Section 5 . . . exceeds Congress's authority under the Fourteenth and Fifteenth Amendments," id. ¶ 38(d) (internal citations omitted), "and, therefore, violates the Tenth Amendment and Article IV of the Constitution," id. ¶ 37. In Count II, Shelby County similarly
4 Shelby County also maintains that it is ineligible for bailout because it held several special elections under the authority of Act 65-816 (the "Planning Act" of 1965) between 1965 and 2003. See Compl. ¶ 34(a)(i)-(iii). During that time, the Planning Act had not been precleared by the Department of Justice. Id. ¶ 34(a)(ii)-(iii). Under Section 4(a), a covered jurisdiction is only eligible for bailout if it has complied "with the requirement that no change covered by . . . [Section 5] has been enforced without preclearance." See 42 U.S.C. § 1973b(a)(1)(D). Because Shelby County held special elections under the authority of the Planning Act (i.e., "enforced" the Act) without first receiving preclearance, Shelby County maintains that it is also ineligible for bailout pursuant to 42 U.S.C. § 1973b(a)(1)(D).
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challenges the constitutionality of the 2006 reauthorization of Section 4(b)'s coverage formula, arguing that "Congress's reliance . . . on voting practices, voter registration data, and presidential election data from 1964, 1968, and 1972 as the trigger for the preclearance obligation of Section 5 is not an 'appropriate' means of enforcing the Fifteenth Amendment." Id. ¶ 42(a). Because "Section 4(b)'s coverage formula is not 'sufficiently related to the problem that it targets,'" Shelby County maintains that Section 4(b), like Section 5, exceeds Congress's Fourteenth and Fifteenth Amendment enforcement authority, and violates the principle of equal sovereignty embodied in the Tenth Amendment and Article IV. Id. ¶ 43(c).
Shortly after filing its complaint, Shelby County filed a motion for summary judgment. Several civil rights groups and Shelby County residents responded by filing motions seeking to intervene as defendants, which the Court granted. See 8/25/10 Order [Docket Entry 29]. Defendant and defendant-intervenors then asked the Court to deny Shelby County's summary judgment motion as premature, or, in the alternative, to grant limited discovery pursuant to Fed. R. Civ. P. 56(f). Denying the request, this Court found that there was no need for discovery on any of the three issues upon which discovery was sought. With respect to the first issue -- Shelby County's standing to sue -- the Court explained that no discovery was warranted since defendant "was unable to articulate any reason why a covered jurisdiction subject to Section 5's preclearance requirement - such as Shelby County - would lack standing to bring this type of action." Shelby Cnty. v. Holder, 270 F.R.D. 16, 18 (D.D.C. 2010). The Court next rejected defendant's contention that discovery was needed to determine whether Shelby County was, in fact, eligible for bailout, since Shelby County did not seek bailout. Id. at 19. Finally, the Court held that there was no need for discovery on Shelby County's constitutional challenge because it
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was purely facial -- not "as applied" -- and it therefore must "rise or fall on the record that Congress created when it extended [the Voting Rights Act's temporary provisions] in 2006." Id. at 21. Accordingly, the Court set a schedule for the filing of dispositive motions, which generated over 1,000 pages of briefs and exhibits and culminated in a lengthy motions hearing on February 2, 2011.
* * * * * This Court does not write on a clean slate in assessing plaintiff's facial constitutional challenge to the 2006 reauthorization of Section 5 and Section 4(b). To date, one Supreme Court Justice has declared that he would strike down Section 5 as an unconstitutional exercise of Congress's Fifteenth Amendment enforcement power, see Nw. Austin II, 129 S. Ct. at 2517-27 (Thomas, J., concurring in judgment in part, dissenting in part), while several other Justices have voiced concerns about the continued vitality of the Act's coverage formula, see, e.g., Nw. Austin II Oral Arg. Tr. at 36 (Apr. 29, 2009) (Alito, J., asking, "[w]ouldn't you agree that there is [sic] some oddities in this coverage formula"); id. at 22 (Kennedy, J., inquiring whether there is "anything in the record" addressing whether "these States that are now covered . . . are markedly different from the noncovered jurisdictions"), and about the apparent never-ending nature of the preclearance obligation, which was originally intended to last only through 1970, but which is now scheduled to last through 2032, id. at 32 (Roberts, C.J., stating with respect to Section 5, "at some point it begins to look like the idea is that this is going to go on forever"). At the same time, a three-judge panel of this Court, after undertaking an exhaustive review of the legislative record, concluded that there was sufficient evidence of modern-day, intentional discrimination in voting to justify Congress's 2006 reauthorization of the preclearance obligation on covered
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jurisdictions for another 25 years. See Nw. Austin I, 571 F. Supp. 2d at 221-83. Keeping all these views in mind, the Court will undertake its own assessment of the legislative record in order to determine whether Congress exceeded its enforcement authority under the Fourteenth and Fifteenth Amendments when it reauthorized Section 5 and Section 4(b) in 2006.
DISCUSSION I. Threshold Issues
Three threshold issues are presented by this suit: (1) plaintiff's Article III standing; (2) plaintiff's eligibility for bailout; and (3) the facial rather than as-applied nature of plaintiff's claims. These three issues were, to some extent, already addressed in the prior Memorandum Opinion in this case. See Shelby Cnty., 270 F.R.D. at 18-21. Nevertheless, given the "'wellestablished principle . . . that normally the Court will not decide a constitutional question if there is some other ground upon which to dispose of the case,'" Nw. Austin II, 129 S. Ct. at 2513 (quoting Escambia Cnty. v. McMillan, 466 U.S. 48, 51 (1984)), the Court will briefly revisit each of these issues to explain why none provides a valid basis for avoiding the merits of the facial constitutional challenge raised here.
A. Standing To establish the "irreducible constitutional minimum of standing," a plaintiff must allege (1) an "injury in fact" that is "(a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical"; (2) "a causal connection between the injury and the conduct complained of"; and (3) a likelihood "that the injury will be redressed by a favorable decision." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) (internal quotation marks and citations omitted). As a jurisdiction covered by Section 4(b), Shelby County maintains that it
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must expend "significant taxpayer dollars, time, and energy to meet its obligations under Section 5 of the VRA." Ellis Decl. ¶ 7. Shelby County's expenditure of time and money to ensure compliance with Section 5 constitutes a "concrete and particularized" injury that is caused by the continued operation of the statute, and that would be redressed by a decision declaring Section 5 facially unconstitutional and permanently enjoining its enforcement.
The mere fact that Shelby County does not challenge any specific objection to one of its proposed electoral changes does not serve to render its claims "conjectural or hypothetical" for purposes of Article III. See LaRoque v. Holder, --- F.3d ----, 2011 WL 2652441, at *10 (D.C. Cir. 2011) (noting that a plaintiff need only demonstrate a "'substantial probability' of imminent injury" to establish Article III standing to bring a facial constitutional challenge to Section 5). Because Shelby County is a jurisdiction subject to Section 5, it will be forced to expend resources obtaining preclearance for all of its future electoral changes, absent a decision from this Court granting its requested relief.5 Shelby County therefore has alleged an injury that is both "credible and immediate, and not merely abstract or speculative." See Navegar, Inc. v. United States, 103 F.3d 994, 998 (D.C. Cir. 1997); see also Steffel v. Thompson, 415 U.S. 452, 459 (1974) (permitting plaintiff to challenge the legality of his potential arrest under a criminal trespass statute where the plaintiff alleged threats of prosecution that were neither imaginary nor speculative). Accordingly, Shelby County has standing to pursue its facial constitutional challenges to Section 5 and Section 4(b).
5 In fact, Shelby County represented to the Court in July 2011 that it was in the process of completing its decennial redistricting plan, and that it would need to expend time and resources preparing a preclearance submission for the plan as early as last month, in the event that the Court denied its motion for summary judgment. See Notice to the Court [Docket Entry 79].
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B. Bailout
Unlike the Texas municipal utility district in Nw. Austin, Shelby County has not framed
its constitutional challenge "as being 'in the alternative' to its statutory argument" for bailout.
Nw. Austin II, 129 S. Ct. at 2513. Indeed, Shelby County has expressly chosen not to petition for
bailout, based on its determination that such a petition would be futile. See Compl. ¶ 34.
Because Shelby County has not sought bailout under Section 4(a), a finding that Shelby County
was bailout-eligible would not obviate the need for this Court to assess the merits of Shelby
County's constitutional challenge, as was the case in Nw. Austin II. The Supreme Court's finding
in Nw. Austin II that the plaintiff-district was eligible for bailout served to "afford [the plaintiff-
district] all the relief it s[ought]," see 129 S. Ct. at 2513; here, however, a determination that
Shelby County was eligible for bailout would only relieve Shelby County of its preclearance
obligation if defendant or this Court could somehow "force Shelby County to accept bailout,"
which, as defendant correctly concedes, cannot be done. See Shelby Cnty., 270 F.R.D. at 19.6
6 Although the Court did not permit discovery into the question of Shelby County's bailout-eligibility, it is clear -- based on undisputed facts in the record -- that Shelby County is not eligible for bailout. Under Section 4(a)(1)(E), a jurisdiction is only eligible for bailout if, during the ten years preceding its bailout request, "the Attorney General has not interposed any objection . . . with respect to any submission by or on behalf of the plaintiff or any governmental unit within its territory." 42 U.S.C. § 1973b(a)(1)(E) (emphasis added). The Attorney General concedes that, in 2008, he interposed an objection to the proposed redistricting plan and annexations submitted by the city of Calera, a "governmental unit" within Shelby County. See Def.'s Mot. at 8; Berman Decl. ¶¶ 9-10. As a result of this objection, Shelby County would not be eligible for bailout under Section 4(a)(1)(E), even if -- like the Texas municipal utility district in Nw. Austin II -- it had chosen to pursue such a course as an "alternative" to its facial constitutional challenge. Similarly, Shelby County concedes that it held several special elections under the authority of Act 65-816 (the "Planning Act" of 1965) between 1965 and 2003. See Compl. ¶ 34(a)(i)-(iii). During that time, the Planning Act had not been precleared by the Department of Justice. Id. ¶ 34(a)(ii)-(iii). Under Section 4(a), a covered jurisdiction is only eligible for bailout if it has complied "with the requirement that no change covered by . . . [Section 5] has been enforced without preclearance." See 42 U.S.C. § 1973b(a)(1)(D). Because
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C. The Facial Nature of Plaintiff's Challenge Finally, it is important to remember that Shelby County's suit presents only a facial -- and not an as-applied -- challenge to the constitutionality of the 2006 reauthorization of Section 5 and Section 4(b). The "distinction between 'as-applied' and 'facial' challenges is that the former ask only that the reviewing court declare the challenged statute or regulation unconstitutional on the facts of the particular case," Sanjour v. E.P.A., 56 F.3d 85, 92 n.10 (D.C. Cir. 1995), whereas the latter ask the court to conclude that "'no set of circumstances exists under which [the statute] would be valid,' or that the statute lacks any 'plainly legitimate sweep,'" United States v. Stevens, 130 S. Ct. 1577, 1587 (2010) (internal citations omitted). When a plaintiff brings both a facial and an as-applied challenge to a statute, "the court must 'determine first whether the law is constitutional as applied to the challenging party's conduct, and then only if the as-applied challenge fails, . . . determine whether it is necessary to consider the facial challenge.'" Heller v. Dist. of Columbia, 698 F. Supp. 2d 179, 188 n.10 (D.D.C. 2010) (internal citations omitted); see also Bd. of Trs. of State Univ. of N.Y. v. Fox, 492 U.S. 469, 485 (1989) (explaining that "for reasons relating both to the proper functioning of courts and to their efficiency, the lawfulness of the particular application of the law should ordinarily be decided first"). Here, however, Shelby County has made clear that it is only seeking to challenge the constitutionality of Section 5 and Section 4(b) on their face, and not as they have been applied to Shelby County in any particular instance. See, e.g., Compl. ¶ 1 (seeking a declaratory judgment that Section 4(b) and Section 5 "are facially unconstitutional") (emphasis added); Pl.'s Mot. at 17
Shelby County held special elections under the authority of the Planning Act, Shelby County is also ineligible for bailout under 42 U.S.C. § 1973b(a)(1)(D).
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n.2 (describing plaintiff's challenge as facial); Shelby Cnty., 270 F.R.D. at 19 (finding that
discovery was "unwarranted" because "Shelby County brings only a facial challenge"). Because
Shelby County has chosen not to raise an as-applied challenge -- and indeed, has explicitly
waived its right to bring such a challenge, see Shelby Cnty., 270 F.R.D. at 19 -- the Court's
consideration of Shelby County's facial challenge is not premature. See Stevens, 130 S. Ct. at
1587 n.3 (rejecting contention that the Court's consideration of a facial constitutional challenge
was "premature" where "the constitutional argument [wa]s a general one" and there was no
"separate attack on a defined subset of the statute's applications").
II. Standard of Review
The Court must first determine the appropriate standard of review to use in evaluating
whether Congress exceeded its enforcement authority under the Fourteenth and Fifteenth Amendments when it reauthorized Section 5 and Section 4(b) in 2006.7 The Attorney General,
relying on cases in which the Supreme Court has previously assessed the constitutionality of
Section 5, argues that "when Congress is legislatively enforcing the Fifteenth Amendment's
prohibition on race discrimination with respect to voting, the Court reviews the appropriateness
of that legislation under a deferential rationality standard." See Def.'s Mot. at 12 (citing
7 In addition to challenging the 2006 reauthorization of Section 5 and Section 4(b) as exceeding Congress's Fourteenth and Fifteenth Amendment enforcement authority, Shelby County argues that Section 5 and Section 4(b) impermissibly intrude on state sovereignty in violation of the Tenth Amendment and Article IV of the Constitution. See Compl. ¶¶ 39, 41, 43. The Supreme Court, however, has repeatedly rejected such federalism-based challenges to Section 5, recognizing that the Reconstruction Amendments "were specifically designed as an expansion of federal power and an intrusion on state sovereignty." See City of Rome, 446 U.S. at 179; see also Lopez v. Monterey Cnty., 525 U.S. 266, 282 (1999) (noting that "the Reconstruction Amendments by their nature contemplate some intrusion into areas traditionally reserved to the States"). To the extent that Section 5 and Section 4(b) constitute "appropriate" remedial enforcement legislation, then, their encroachment on state sovereignty is permissible.
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Katzenbach, 383 U.S. at 324; City of Rome, 446 U.S. at 175-77; Georgia v. United States, 411 U.S. 526, 535 (1973); Lopez, 525 U.S. at 282-85). Shelby County, on the other hand, urges this Court to apply the "congruence and proportionality" framework first articulated by the Supreme Court in City of Boerne v. Flores, 521 U.S. at 520, to assess legislation enacted pursuant to § 5 of the Fourteenth Amendment, asserting that Boerne "applies just the same in Fifteenth Amendment cases" because "[t]he enforcement clauses of the Fourteenth and Fifteenth Amendments are coextensive." See Pl.'s Mot. at 19; see also Pl.'s Reply in Supp. of Pl.'s Mot. for Summ. J. ("Pl.'s Reply") at 2 (explaining that "[t]he Supreme Court has made clear that all enforcement legislation is subject to congruence and proportionality review, and it has specifically relied on the voting rights cases in adopting and applying this test").
The parties in Nw. Austin engaged in the same dispute regarding the proper standard of review to apply in assessing the constitutionality of Section 5. See Nw. Austin II, 129 S. Ct. at 2512. Although the Supreme Court ultimately declined to resolve the issue, see id.; but see id. at 2524-25 (Thomas, J., concurring in judgment in part, dissenting in part) (suggesting that Boerne provides the framework for reviewing the constitutionality of Section 5), the three-judge court below held that "Katzenbach's rationality standard governs this case," Nw. Austin I, 573 F. Supp. 2d at 241.
That court described Katzenbach's "rationality standard" and Boerne's "congruence and proportionality test" as "two distinct standards for evaluating the constitutionality of laws enforcing the Civil War Amendments." 573 F. Supp. 2d at 235-36. After summarizing what it characterized as "these two lines of cases," the court said that "the time has come to choose between them." 573 F. Supp. 2d at 241. The court ultimately "chose" Katzenbach for two
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reasons (although it went on to find that Section 5 passed muster under both Katzenbach and the congruence and proportionality framework outlined in Boerne). First, the court noted that City of Rome, which had "applied Katzenbach's rationality test," constituted controlling precedent directly on point. Id. Although City of Rome pre-dates Boerne, the Nw. Austin I panel reasoned that because neither Boerne nor any case since had questioned the standard of review utilized in City of Rome, that standard had not been overruled. See id. at 242. Hence, the court concluded that the type of review enunciated in Katzenbach and employed in City of Rome still governed the plaintiff's challenge to the 2006 extension of Section 5, even assuming that Boerne had "cast some doubt" on Katzenbach and City of Rome. Id. at 246. Second, the court pointed to the fact that Boerne involved a challenge to Congress's enforcement authority under § 5 of the Fourteenth Amendment, id. at 517, whereas Katzenbach and City of Rome involved challenges to Section 5, which, "at its core," constitutes legislation enacted under § 2 of the Fifteenth Amendment, id. at 243-44. "Even if the City of Boerne cases changed the test for all statutes enacted pursuant to the Fourteenth Amendment," the court explained, "those cases leave the Fifteenth Amendment standard untouched." Id. at 243.
This Court respectfully disagrees. A close analysis of the Voting Rights Act cases, Boerne, and cases following Boerne reveals that the Supreme Court has not left the standard of review for Fifteenth Amendment enforcement legislation "untouched"; moreover, it has not established a "distinct standard" for evaluating Fourteenth Amendment enforcement legislation different from that traditionally employed in the Fifteenth Amendment context. Rather, Boerne merely explicated and refined the one standard of review that has always been employed to assess legislation enacted pursuant to both the Fourteenth and Fifteenth Amendments. See
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Appellant's Br., Nw. Austin II, 2009 WL 453246, at *33 (Feb. 19, 2009) (explaining that "Boerne and the cases following it do no more than elaborate and clarify the standard for reviewing Congress's efforts to enforce the Reconstruction Amendments"). The question is not, then, whether this Court, as "a district court bound by Supreme Court precedent," should follow "Katzenbach and City of Rome even if . . . the City of Boerne cases cast some doubt on those cases," Nw. Austin I, 573 F. Supp. 2d at 246. If this Court viewed Boerne and its enunciation of the congruence and proportionality test as merely "casting doubt" on Katzenbach and City of Rome, it would, indeed, still be obligated to follow those earlier cases, and leave to the Supreme Court "the prerogative of overruling its own decisions," Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989). Rather, the question is whether, given the elaboration of the Katzenbach standard that was undertaken by the Supreme Court in Boerne, this Court should nonetheless adhere to the standard as first articulated in Katzenbach, simply because the Boerne elaboration occurred in the Fourteenth Amendment context, not the Fifteenth. Such a course would, in this Court's view, constitute a misunderstanding of Boerne. This Court will therefore review the Supreme Court's evolving descriptions of the nature of Congress's enforcement powers under the Reconstruction Amendments, as explicated in Katzenbach, Boerne and later cases, to show that Boerne's congruence and proportionality framework reflects a refined version of the same method of analysis utilized in Katzenbach, and hence provides the appropriate standard of review to assess Shelby County's facial constitutional challenge to Section 5 and Section 4(b).
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A. The "Virtually Identical" Enforcement Clauses of the Fourteenth and Fifteenth Amendments
Section 5 of the Fourteenth Amendment provides that "Congress shall have the power to enforce, by appropriate legislation, the provisions of this article," U.S. CONST. amend. XIV, § 5, while § 2 of the Fifteenth Amendment states that "Congress shall have power to enforce this article by appropriate legislation," U.S. CONST. amend. XV, § 2.8 Given the nearly identical language and similar origin of these two Reconstruction Amendments, there would seem to be "no reason to treat the enforcement provision of the Fifteenth Amendment differently than the identical provision of the Fourteenth Amendment, and the Supreme Court has not held to the contrary." Mixon v. State of Ohio, 193 F.3d 389, 399 (6th Cir. 1999); see also Hayden v. Pataki, 449 F.3d 305, 331 n.5 (2d Cir. 2006) (finding "no indication in Supreme Court precedent, or in logic, that the Congress and the legislatures that enacted and ratified the Fourteenth and Fifteenth Amendments intended that they be 'enforced' in different ways").
In fact, the Supreme Court has repeatedly emphasized -- both before, in, and after Boerne -- that the nature of the enforcement power conferred by § 5 of the Fourteenth Amendment is "virtually identical" to that conferred by § 2 of the Fifteenth Amendment. See Bd. of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356, 373 n.8 (2001); see also Boerne, 521 U.S. at 518 (comparing Congress's Fourteenth Amendment enforcement authority to its "parallel power to enforce the provisions of the Fifteenth Amendment"); Katzenbach v. Morgan, 384 U.S. 641, 651 (1966) (explaining that "Section 2 of the Fifteenth Amendment grants Congress a similar
8 In this Opinion, the Court uses "Section 5" to refer to Section 5 of the Voting Rights Act, and "§ 5" to refer to the enforcement clause of the Fourteenth Amendment. Similarly, the Court uses "Section 2" to refer to Section 2 of the Voting Rights Act, and § 2 to refer to the enforcement clause of the Fifteenth Amendment.
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power to [that of § 5 of the Fourteenth Amendment]," as both sections permit Congress to "enforce by 'appropriate legislation' the provisions of that amendment"); Dep't of Human Res. v. Hibbs, 538 U.S. 721, 742 n.1 (2003) (Scalia, J., dissenting) (noting that "Section 2 of the Fifteenth Amendment is practically identical to § 5 of the Fourteenth Amendment"); Lopez, 525 U.S. at 294 n.6 (Thomas, J., dissenting) (explaining that while "City of Boerne involved the Fourteenth Amendment enforcement power, we have always treated the nature of the enforcement powers conferred by the Fourteenth and Fifteenth Amendments as coextensive"); City of Rome, 446 U.S. at 208 n.1 (Rehnquist, J., dissenting) (stating that "the nature of the enforcement powers conferred by the Fourteenth and Fifteenth Amendments has always been treated as coextensive").
Hence, when the Supreme Court in Katzenbach first examined whether Congress's enactment of the Voting Rights Act exceeded its power to "enforce" the Fifteenth Amendment "by appropriate legislation," the Court looked for guidance to Ex Parte Virginia -- a case involving Congress's parallel enforcement power under § 5 of the Fourteenth Amendment. See Katzenbach, 383 U.S. at 326-27 (citing Ex Parte Virginia, 100 U.S. 339, 345-46 (1879)). In Ex Parte Virginia, the Supreme Court assessed the nature of Congress's power under the enforcement clauses of the Thirteenth and Fourteenth Amendments,9 and explained that "[w]hatever legislation is appropriate, that is, adapted to carry out the objects the amendments have in view, whatever tends to enforce submission to the prohibitions they contain, and to secure to all persons the enjoyment of perfect equality of civil rights and the equal protection of
9 Section 1 of the Thirteenth Amendment abolishes slavery, and § 2 provides, in terms identical to those in § 2 of the Fifteenth Amendment, that "Congress shall have power to enforce this article by appropriate legislation." See U.S. CONST. amend. XIII.
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the laws against State denial or invasion, if not prohibited, is brought within the domain of congressional power." Ex Parte Virginia, 100 U.S. at 346. Quoting this language, the Supreme Court in Katzenbach rejected the contention that § 2 of the Fifteenth Amendment permits Congress to "do no more than to forbid violations of the Fifteenth Amendment in general terms." 383 U.S. at 327. Rather, the Court explained, § 2 of the Fifteenth Amendment -- like § 5 of the Fourteenth Amendment -- provides Congress with "full remedial powers" to enforce the Amendment by "appropriate" legislation; that is, to pass legislation to make the Amendment's protections "'fully effective.'" See id. at 326 (quoting Ex Parte Virginia, 100 U.S. at 345).
According to the Court in Katzenbach, "[t]he basic test to be applied in a case involving s[ection] 2 of the Fifteenth Amendment" is the same as that to be applied "in all cases concerning the express powers of Congress with relation to the reserved powers of the States." Id. As Chief Justice Marshall said in McCulloch v. Maryland: "'Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.'" Id. (quoting McCulloch v. Maryland, 4 Wheat. 316, 421 (1819)).
After setting forth Congress's Fifteenth Amendment enforcement authority in these broad terms, the Supreme Court in Katzenbach proceeded to engage in a careful analysis of whether Section 5 and Section 4(b) constituted "appropriate" enforcement legislation, as that word is defined in McCulloch v. Maryland and Ex Parte Virginia. With respect to the coverage formula in Section 4(b), the Court acknowledged that Congress had confined the Act's most stringent remedies -- such as preclearance -- to "a small number of States and political subdivisions which in most instances were familiar to Congress by name." See Katzenbach, 383 U.S. at 328. The
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decision to target only certain sections of the country and not others was based on "evidence of actual voting discrimination" in these areas, and the Court found it "acceptable" for Congress to "limit its attention to the geographic areas where immediate action seemed necessary." Id. at 328-29. "Legislation need not deal with all phases of a problem in the same way," the Court explained, "so long as the distinctions drawn have some basis in practical experience." Id. at 331. Because the distinctions drawn by the coverage formula in Section 4(b) had such a basis, the Court found that the formula was "rational in both practice and theory." See id. at 330.
The Court also concluded that Section 5's preclearance requirement constituted a "permissibly decisive" response to the problem of states "contriving new rules of various kinds for the sole purpose of perpetuating voting discrimination in the face of adverse federal court decrees." Id. at 335. Given the "voluminous" legislative record amassed by Congress during its consideration of the Act, id. at 308, which contained ample evidence of "obstructionist tactics" in covered jurisdictions, id. at 328, the Court noted that "Congress had reason to suppose that these States might try similar maneuvers in the future in order to evade the remedies for voting discrimination contained in the Act itself," thereby justifying the need for a prophylactic measure like Section 5, see id. at 334-35. The Court determined, then, on the basis of the evidence of voting discrimination in the record, that Congress had "exercised its powers under the Fifteenth Amendment in an appropriate manner" when it enacted Section 5 and Section 4(b). Id. at 324.
The same year that it decided Katzenbach, the Supreme Court had occasion to re-examine the nature of Congress's enforcement authority under § 5 of the Fourteenth Amendment, and in so doing made clear that the test for reviewing exercises of Congress's Fourteenth and Fifteenth
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Amendment enforcement powers is the same. See Katzenbach v. Morgan, 384 U.S. at 651.10 In Katzenbach v. Morgan, the Supreme Court addressed a Fourteenth Amendment challenge to Section 4(e) of the Voting Rights Act, which guaranteed the right to vote to persons educated in Puerto Rico who satisfied certain educational criteria but who could not read or write English. Registered voters in New York challenged Section 4(e) insofar as it forbid New York from enforcing its state election laws, which made the ability to read and write English a precondition to voting. See id. at 643-45. Rejecting this challenge, the Supreme Court explained that § 5 of the Fourteenth Amendment is a "positive grant of legislative power," which permits Congress to "enforce" the Amendment by enacting legislation to prevent state action even if that state action would not otherwise be "prohibited by the provision of the Amendment that Congress sought to enforce." Id. at 648. Because there was a "basis" upon which Congress could have found that New York's application of its English literacy requirement to deny the right to vote to nonEnglish speakers educated in Puerto Rico "constituted invidious discrimination in violation of the Equal Protection Clause," id. at 656, Congress was entitled to respond to this state-sponsored discrimination by passing Section 4(e), even assuming that Section 4(e) would prevent some applications of New York's state election law that did not, in and of themselves, violate the substantive provisions of the Fourteenth Amendment, see id. at 648.
The Supreme Court in Katzenbach v. Morgan explained the nature of Congress's Fourteenth Amendment enforcement power with reference to South Carolina v. Katzenbach, noting that § 2 of the Fifteenth Amendment "grants Congress a similar power to enforce by
10 The Court uses the shorthand "Katzenbach" to refer to Katzenbach v. South Carolina, but employs the full case name for Katzenbach v. Morgan.
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'appropriate legislation' the provisions of that amendment; and we recently held . . . that '[t]he basic test to be applied in a case involving s[ection] 2 of the Fifteenth Amendment is the same as in all cases concerning the express powers of Congress with relation to the reserved powers of the States'": namely, the test identified in McCulloch v. Maryland. Id. at 651 (internal citations omitted). Hence, the Court confirmed, the meaning of "appropriate," as stated in McCulloch v. Maryland and Ex Parte Virginia, governs Congress's enforcement authority under both § 5 of the Fourteenth Amendment and § 2 of the Fifteenth Amendment. See id.
When the Supreme Court next addressed a facial challenge to the constitutionality of Section 5 in City of Rome, it again held that McCulloch v. Maryland and Ex Parte Virginia provide the basic framework for assessing whether legislation is "appropriate" under § 2 of the Fifteenth Amendment. See City of Rome, 446 U.S. at 174-75. The Court also elaborated on its discussion in Katzenbach v. Morgan by describing the precise nature of Congress's authority to "enforce" the Reconstruction Amendments. According to the Court, "even if § 1 of the [Fifteenth] Amendment prohibits only purposeful discrimination," id. at 173, Congress may, under the authority vested in it by § 2, "prohibit state action that, though in itself not violative of § 1, perpetuates the effects of past discrimination," id. at 176.
As one scholar has pointed out, this "reference to 'past discrimination' suggests that Congress is authorized to prohibit [discriminatory] effects only if the Court believes it is reasonable to infer discriminatory purposes in the past." Paul Winke, Why the Preclearance and Bailout Provisions of the Voting Rights Act Are Still a Constitutionally Proportional Remedy, 28 N.Y.U. REV. L. & SOC. CHANGE 69, 80 (2003). In other words, City of Rome implies that Congress may exercise its § 2 enforcement powers by prohibiting electoral practices that do not
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themselves violate § 1 of the Fifteenth Amendment only as a means of "attacking the perpetuation of earlier, purposeful racial discrimination." See City of Rome, 446 U.S. at 177 (describing the Supreme Court's holding in Oregon v. Mitchell, 400 U.S. 112 (1970)) (emphasis added). But City of Rome made clear that when Congress does legislate pursuant to § 2 of the Fifteenth Amendment in response to earlier, purposeful voting discrimination, such legislation need only be "'appropriate' as that term is defined in McCulloch v. Maryland and Ex Parte Virginia." Id. at 177. The Supreme Court in City of Rome thus framed the specific question before it as whether, in re-authorizing Section 5 in 1975, "Congress could rationally have concluded that, because electoral changes by jurisdictions with a demonstrable history of intentional racial discrimination in voting create the risk of purposeful discrimination, it was proper to prohibit changes that have a discriminatory impact." Id. (emphasis added).
To answer this question, the Court looked to the evidence upon which Congress had relied in deciding to reauthorize Section 5 in 1975. See id. at 180-82. The Court noted that Congress had given "careful consideration to the propriety of readopting § 5's preclearance requirement" and had considered evidence such as racial disparities in voter registration, the number of minority elected officials, and "the number and types of submissions made by covered jurisdictions and the number and nature of objections interposed by the Attorney General." Id. at 181. After considering such evidence, Congress "not only determined that § 5 should be extended for another seven years," but gave Section 5 a "ringing endorsement," explaining that Section 5 had been largely responsible for the increased minority political participation in the ten years since the Voting Rights Act's passage, and for ensuring that such progress was not "'destroyed through new procedures and techniques.'" Id. (quoting H.R. Rep. 94-196, at 10-11).
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Citing Congress's finding that Section 5 was "necessary to preserve the 'limited and fragile' achievements of the Act and to promote further amelioration of voting discrimination," the Court found that, based on the evidence in the congressional record, the 1975 extension of Section 5 "was plainly a constitutional method of enforcing the Fifteenth Amendment." Id. at 182.
B. Boerne's Refinement of Katzenbach and City of Rome Then came City of Boerne. There, the Supreme Court addressed a challenge to the Religious Freedom Restoration Act ("RFRA"), a statute that Congress had enacted pursuant to § 5 of the Fourteenth Amendment, and which prohibited states from imposing a "substantial burden" on the free exercise of religion unless they could show that the burden was (1) in furtherance of a "compelling" governmental interest; and (2) the "least restrictive means" of furthering that interest. 521 U.S. at 515-16. The Court in Boerne began its analysis of RFRA by quoting the familiar passage from Ex Parte Virginia on the meaning of "appropriate" § 5 enforcement legislation. See id. at 517-18. After noting that Ex Parte Virginia had only outlined "the scope of Congress' § 5 power in . . . broad terms," id. at 517, the Court proceeded to expand on these "broad terms" by confirming what Katzenbach v. Morgan and City of Rome had already made clear: namely, that "[l]egislation which deters or remedies constitutional violations can fall within the sweep of Congress's enforcement power even if in the process it prohibits conduct which is not itself unconstitutional." Id. at 518. But the Court in Boerne went on to explain that Congress's power under § 5 is not unlimited. "Legislation which alters the meaning of the Free Exercise Clause cannot be said to be enforcing the Clause," the Court said, since Congress "has been given the power 'to enforce,'" but "not the power to determine what constitutes a constitutional violation." Id. at 519. The
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Court acknowledged that there is a fine line "between measures that remedy or prevent unconstitutional actions and measures that make a substantive change in the governing law," and it explained that while Congress "must have wide latitude in determining where [the line] lies," ultimately it is for the Court to decide whether Congress has overstepped the bounds of its authority by attempting to "decree the substance of the Fourteenth Amendment's restrictions on the States." Id. at 519-20. Hence, the Court concluded, in order for legislation to be upheld as a valid exercise of Congress's § 5 power, "[t]here must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end." Id.
But in making this statement, the Supreme Court in Boerne did not purport to overrule Katzenbach, nor did it seek to distinguish between the standards of review to be applied in the Fourteenth and Fifteenth Amendment enforcement contexts. To the contrary, the Court cited Katzenbach as a paradigmatic example of a case that had "revolve[d] around the question whether § 5 legislation can be considered remedial," see Boerne, 521 U.S. at 525 (citing Katzenbach, 383 U.S. at 808) -- despite the fact that Katzenbach involved § 2 legislation, not § 5 legislation. The Boerne Court also discussed Katzenbach v. Morgan and City of Rome in great detail, see, e.g., Boerne 521 U.S. at 527-28, 533, without providing any indication that it was departing from the method of analysis it had used to assess Congress's exercise of its Fourteenth and Fifteenth Amendment enforcement authority in those cases. Instead, the Supreme Court in Boerne cited Katzenbach v. Morgan and City of Rome as illustrative of the principle that Congress may, consistent with § 5, enact "strong remedial and preventative measures to respond to the widespread and persisting deprivation of constitutional rights resulting from this country's history of racial discrimination." See Boerne, 521 U.S. at 526. Because it had previously upheld
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challenged provisions of the Voting Rights Act only on the basis of actual evidence of unconstitutional voting discrimination by states, see id. at 526-28, the Court found no reason to view its Voting Rights Act jurisprudence under § 2 of the Fifteenth Amendment as inconsistent with the pronouncement that "[t]he appropriateness of remedial measures must be considered in light of the evil presented," id. at 530 (citing Katzenbach, 383 U.S. at 308).
Applying this standard to RFRA, however, the Court decided that RFRA was "so out of proportion to a supposed remedial or preventative object that it cannot be understood as responsive to, or designed to prevent, unconstitutional behavior." Boerne, 521 U.S. at 532. In reaching this conclusion, the Court found a comparison between RFRA and the Voting Rights Act to be "instructive." Id. at 530. Whereas the Voting Rights Act had been passed on the basis of an extensive legislative record replete with instances of state-sponsored voting discrimination in violation of the Fifteenth Amendment, RFRA's legislative record lacked "examples of modern instances of generally applicable laws passed because of religious bigotry." Id. Indeed, the record contained no documented episodes of religious persecution that had occurred in the past 40 years. Id. And unlike the Voting Rights Act -- which was limited both in terms of the "discrete class of laws" that it affected (voting laws) and in the states that it covered (those where "constitutional violations were most likely") -- RFRA's "[s]weeping coverage" displaced laws in every state, "of almost every description and regardless of subject matter." Id. at 532. Finally, while Section 5 of the Voting Rights Act was enacted as a temporary provision, with a procedure by which jurisdictions could bail out of its requirements, RFRA had "no termination date or termination mechanism." Id. at 532-33.
The Supreme Court in Boerne made clear that a statute need not contain these kinds of
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limiting features in order to be sustained as congruent and proportional § 5 legislation. Id. at 533. But it explained that where "a congressional enactment pervasively prohibits constitutional state action in an effort to remedy or to prevent unconstitutional state action, limitations of this kind tend to ensure Congress' means are proportionate to ends legitimate under § 5." Id. (emphasis added). Given the lack of any such limitations in RFRA, together with the absence of any recent documented instances of religious persecution in the legislative record, the Court in Boerne held that "RFRA cannot be considered remedial, preventative legislation." Id. at 532. "Simply put, RFRA is not designed to identify and counteract state laws likely to be unconstitutional because of their treatment of religion." Id. at 534-35.
After Boerne, the Supreme Court continued to refine the congruence and proportionality framework in a series of cases addressing whether Congress had validly abrogated state sovereign immunity pursuant to § 5 of the Fourteenth Amendment. See Nw. Austin I, 573 F. Supp. 2d at 240-41. In the first of these cases, the Court struck down the Patent and Plant Variety Protection Remedy Clarification Act, which subjected states to patent infringement suits, on the ground that Congress had failed to identify any "pattern of patent infringement by the States, let alone a pattern of constitutional violations" that could justify the Act as an appropriate remedial measure under § 5. See Fla. Prepaid Postsecondary Educ. Expense Bd. v. Coll. Sav. Bank, 527 U.S. 627, 640 (1999). Instead, Congress appeared to have enacted the legislation only in "response to a handful of instances of state patent infringement that do not necessarily violate the Constitution." Id. at 645-46. The Act also did not contain any of the "various limits that Congress [had] imposed in its voting rights measures," which the Court deemed "particularly incongruous in light of the scant support for the predicate unconstitutional conduct that Congress
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intended to remedy." Id. at 647. Accordingly, given both the insufficient historical record of constitutional violations and the broad scope of the Act's coverage, the Court found "it clear that the Patent Remedy Act cannot be sustained under § 5 of the Fourteenth Amendment." Id.
The following year in Kimel v. Fla. Bd. of Regents, 528 U.S. 62 (2000), the Court similarly held that Congress's abrogation of state sovereign immunity in the Age Discrimination in Employment Act, which permitted suits for money damages against state employers alleged to have discriminated on the basis of age, exceeded Congress's authority under § 5. While reaffirming that "Congress' power 'to enforce' the [Fourteenth] Amendment includes the authority both to remedy and deter violations of rights guaranteed thereunder by prohibiting a somewhat broader swath of conduct" than that which the Amendment itself proscribes, 528 U.S. at 81, the Court nonetheless found that Congress had exceeded this enforcement power by failing to identify "any pattern of age discrimination by the States, much less any discrimination whatsoever that rose to the level of constitutional violation," id. at 88.
Then, in Bd. of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356 (2001), the Court again applied congruence and proportionality review to strike down § 5 enforcement legislation, finding that the provision of Title I of the Americans with Disabilities Act ("ADA") that permitted individuals to sue states for money damages exceeded Congress's Fourteenth Amendment enforcement authority. See 531 U.S. at 374. As in Boerne, the Supreme Court in Garrett compared the legislative record amassed by Congress in support of the ADA with that considered by Congress in enacting the Voting Rights Act. Whereas Congress in passing the Voting Rights Act had documented "a marked pattern of unconstitutional action by the States," id., Congress in enacting the ADA had cited only "half a dozen examples" of state-sponsored
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discrimination against the disabled, id. at 369. These incidents fell "far short of even suggesting the pattern of unconstitutional discrimination on which § 5 legislation must be based." Id. at 370. The Court also contrasted the ADA's sweeping nation-wide mandate "for the elimination of discrimination against individuals with disabilities" with the Voting Rights Act's more "limited remedial scheme designed to guarantee meaningful enforcement of the Fifteenth Amendment in those areas of the Nation where abundant evidence of States' systematic denial of those rights was identified." Id. at 373 (internal quotation marks and citation omitted). This comparison of the ADA to the Voting Rights Act made clear "[t]he ADA's constitutional shortcomings." Id.
But after using congruence and proportionality review to strike down four separate pieces of § 5 enforcement legislation, the Court most recently held that two statutes enacted pursuant to Congress's Fourteenth Amendment enforcement authority were, in fact, congruent and proportional. See Hibbs, 538 U.S. at 724; Tennessee v. Lane, 541 U.S. 509, 533-34 (2004). In Hibbs, the Court upheld the constitutionality of the family-care provision of the Family and Medical Leave Act ("FMLA"), and in Lane the Court found that Title II of the ADA -- as applied to claims by the disabled alleging that they had been denied access to the courts because of their disability -- constituted a valid exercise of Congress's § 5 enforcement power. See Hibbs, 538 U.S. at 724; Lane, 541 U.S. at 533-34. Significantly, both statutes sought to protect a class or right that receives heightened judicial scrutiny: namely, "suspect gender classifications (the FMLA) and the fundamental right of access to the courts (ADA Title II)." See Nw. Austin I, 573 F. Supp. 2d at 241. As a result, "'it was easier for Congress to show a pattern of state constitutional violations' than in Garrett or Kimel, both of which concerned legislation that targeted classifications subject to rational-basis review." Lane, 541 U.S. at 529 (quoting Hibbs,
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538 U.S. at 736). Given the nature of the classification at issue, the Court in Hibbs compared the showing needed to uphold the FMLA to that necessary to sustain the Voting Rights Act. Congress was "similarly successful" in demonstrating a pattern of unconstitutional conduct in the voting rights context, the Hibbs Court explained, because racial classifications, like gender classifications, "are presumptively invalid," so "most of the States' acts of race discrimination violated the Fourteenth Amendment." Hibbs, 538 U.S. at 736.
After Hibbs, Lane, and the other cases that have applied and clarified Boerne, it is now clear that the standard for reviewing Congress's enactment of remedial, prophylactic legislation under § 5 of the Fourteenth Amendment involves three steps. See Nw. Austin I, 573 F. Supp. 2d at 268-69. First, the court must "identify the constitutional right or rights that Congress sought to enforce" when it enacted the challenged legislation. Lane, 541 U.S. at 522; see also Garrett, 531 U.S. at 365 (explaining that the court must "identify with some precision the scope of the constitutional right at issue"); Fla. Prepaid, 527 U.S. at 652 (noting that "the first step of the inquiry . . . is to determine what injury Congress sought to prevent or remedy with the relevant legislation"). Second, it must "examine whether Congress identified a history and pattern of unconstitutional [conduct] by the States" that justified the enactment of the remedial measure. Garrett, 531 U.S. at 368. Finally, the court must decide whether the challenged legislation constitutes "an appropriate response" to the identified "history and pattern" of unconstitutional conduct, Lane, 541 U.S. at 530 -- in other words, whether is it "congruent and proportional to the targeted violation," Garrett, 531 U.S. at 374; Hibbs, 538 U.S. at 737.
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C. Boerne Governs Challenges to Congress's Enforcement Power Under Both § 2 of the Fifteenth Amendment and § 5 of the Fourteenth Amendment
The only remaining question, then, is whether, notwithstanding the Court's articulation and refinement of the congruence and proportionality framework in the context of challenges to Congress's enforcement power under § 5 of the Fourteenth Amendment, a different standard of review nonetheless governs Congress's exercise of its "parallel power" to enforce § 2 of the Fifteenth Amendment. Although Boerne and "the cases that define the limits of Congress's enforcement power have focused primarily on that power as granted by Section 5 of the Fourteenth Amendment," this Court agrees with the Second Circuit's determination that there is "no significant reason to conclude that the scope of the enforcement power under the two amendments is different." See Hayden, 449 F.3d at 331 n.5.
To begin with, the language of the enforcement clauses of the Fourteenth and Fifteenth Amendments is almost identical, as they both reference Congress's ability to enforce the Amendment through the enactment of "appropriate" legislation. See id.; compare U.S. CONST. amend. XIV, § 5 ("Congress shall have the power to enforce, by appropriate legislation, the provisions of this article") with U.S. CONST. amend. XV, § 2 ("Congress shall have power to enforce this article by appropriate legislation"). Moreover, the two amendments have similar origins and histories. See, e.g., Pamela S. Karlan, Two Section Twos and Two Section Fives: Voting Rights and Remedies After Flores, 39 WM. & MARY L. REV. 725, 725 n.5 (1998) (explaining that "because the two amendments are rough contemporaries and their enforcement power provisions are articulated in similar terms, the [Boerne] analysis surely carries over" to the Fifteenth Amendment context). And perhaps most importantly, the Supreme Court has expressly
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"equated Congress's enforcement power under the two amendments" on a number of occasions, both before and after Boerne. See Hayden, 449 F.3d at 331 n.5 (citing Garrett, 531 U.S. at 373 n.8; Boerne, 521 U.S. at 517-18; Katzenbach v. Morgan, 384 U.S. at 650-51).
Far from implying that the Fourteenth and Fifteenth Amendments were intended to be "'enforced' in different ways," Hayden, 449 F.3d at 331 n.5, Boerne itself is also best read to mean that the nature of Congress's enforcement powers under the two amendments is the same. In Boerne, the Supreme Court relied on the Voting Rights Act as upheld in Katzenbach and City of Rome as a paradigmatic example of legislation that satisfies the congruence and proportionality test, contrasting the Voting Rights Act with RFRA in order to illustrate RFRA's constitutional deficiencies. See, e.g., 521 U.S. at 518, 525-26, 530-33. Shelby County is correct to point out that Boerne's repeated reliance on Katzenbach and City of Rome -- both of which were decided under § 2 of the Fifteenth Amendment -- would be "misplaced," see Pl.'s Mot. at 19, to say the least, if § 5 enforcement legislation "were to be judged against an entirely different constitutional metric" than that applicable to § 2 enforcement legislation, see Pl.'s Reply at 12; see also Evan Caminker, "Appropriate" Means-Ends Constraints on Section 5 Powers, 53 STAN. L. REV. 1127, 1191 (2001) (stating that Boerne "strongly suggests that Section 2 measures designed to enforce the Fifteenth Amendment are subject to stringent congruence and proportionality analysis as well"); Mark A. Posner, Time is Still On its Side: Why Congressional Reauthorization of Section 5 of the Voting Rights Act Represents a Congruent and Proportional Response to Our Nation's History of Discrimination in Voting, 10 N.Y.U. J. LEGIS. & PUB. POL'Y 51, 89 (2006) (noting that Boerne "strongly intimated that the same analysis applies when assessing Congress's authority under the two amendments to enact prophylactic legislation").
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Boerne's characterization of Katzenbach as a case that "revolve[d] around the question whether § 5 legislation can be considered remedial," see Boerne, 521 U.S. at 525 (emphasis added), also cannot be reconciled with the contention that different modes of analysis govern judicial review of § 5 and § 2 enforcement legislation. Again, this is because the Court in Katzenbach upheld the challenged provisions of the Voting Rights Act not as a valid exercise of Congress's power under § 5 of the Fourteenth Amendment, but as "a valid means of carrying out the commands of the Fifteenth Amendment." Katzenbach, 383 U.S. at 337. Indeed, the Supreme Court in Katzenbach never even mentioned § 5 of the Fourteenth Amendment. To the extent that Katzenbach "revolve[d] around" the issue of what constitutes appropriate § 5 legislation, then, it could only be because the test for determining the validity of § 5 legislation is the same as that for determining the validity of § 2 legislation.
It is also significant that the Supreme Court in Boerne did not purport to overrule Katzenbach v. Morgan, or the half-century of precedent that has treated the nature of the enforcement power conferred by the Fourteenth and Fifteenth Amendments as coextensive. See Katzenbach v. Morgan, 384 U.S. at 651 (explaining that McCulloch v. Maryland and Ex Parte Virginia provide the definition of what constitutes "appropriate" enforcement legislation in both the Fifteenth and Fourteenth Amendment contexts). The Supreme Court in Boerne began its analysis by quoting Katzenbach v. Morgan's acknowledgment that "§ 5 is 'a positive grant of legislative power.'" Boerne, 521 U.S. at 517 (quoting Katzenbach v. Morgan, 384 U.S. at 651). And it then recited the traditional articulation of "the scope of Congress' § 5 power" as laid out in Ex Parte Virginia, thereby suggesting that the congruence and proportionality framework was a mere elaboration of those "broad terms." See Boerne, 521 U.S. at 517-18.
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Under Katzenbach and City of Rome, Ex Parte Virginia's definition of "appropriate" legislation under the Thirteenth and Fourteenth Amendments also governs what constitutes "appropriate" legislation under the Fifteenth Amendment. See Katzenbach, 383 U.S. at 326; City of Rome, 446 U.S. at 174-75. Hence, the Supreme Court's elaboration of Ex Parte Virginia in Boerne would seem to apply just the same in the Fifteenth Amendment context, at least in the absence of any indication that Katzenbach and City of Rome were incorrect to rely on a § 5 case in delineating the scope of Congress's § 2 power. But the Supreme Court in Boerne gave no such indication. In fact, it suggested just the opposite, by itself relying almost exclusively on § 2 cases in delineating the scope of Congress's § 5 power. See Karlan, 39 WM. & MARY L. REV. at 725 n.5 (noting that "most of the cases Justice Kennedy cited relied on Congress's use of its enforcement power under Section 2 of the Fifteenth Amendment").
The Supreme Court's failure in Boerne to announce any departure from Katzenbach and City of Rome can be explained by the fact that the congruence and proportionality test does not constitute a novel alternative to the standard of review employed in those earlier cases; rather, it reflects a more detailed articulation of the same standard that the Court has always applied to assess Congress's exercise of its Fifteenth Amendment enforcement power. In Katzenbach, the Court began with the first step of the Boerne framework, determining "what injury Congress sought to prevent or remedy" when it enacted the challenged provisions of the Voting Rights Act. Fla. Prepaid, 527 U.S. at 652; see Katzenbach, 383 U.S. at 308 (explaining that the Act was designed "to banish the blight of racial discrimination in voting"). The Court then proceeded to the second step of Boerne, looking to whether Congress had "identified a history and pattern of unconstitutional [conduct] by the States," Garrett, 531 U.S. at 368. In so doing, the Supreme
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Court made clear that the "constitutional propriety" of the Act "must be judged with reference to the historical experience it reflects," Katzenbach, 383 U.S. at 308, and it pointed to historical evidence of state-sponsored voting discrimination in the legislative record to justify the need for the Act, id. at 310 (describing states' use of tests and devices that were "specifically designed to prevent Negroes from voting"). Although the Court in Katzenbach did not use the words "congruent" and "proportional" when assessing the challenged provisions of the Act, it did closely analyze whether Section 5 and Section 4(b) constituted "an appropriate response" to the "history and pattern" of unconstitutional voting discrimination that Congress had identified, see Lane, 541 U.S. at 530. So, too, did the Court in City of Rome engage in a Boerne-like analysis, upholding the 1975 reauthorization of Section 5 only after describing the evidence of voting discrimination upon which Congress had relied in reauthorizing the Act's temporary provisions. See City of Rome, 446 U.S. at 182 (finding that "at least another 7 years of statutory remedies" was "necessary to counter the perpetuation of 95 years of pervasive voting discrimination").
To the extent that the analysis undertaken in Katzenbach and City of Rome was somewhat less rigorous than that applied in cases since Boerne, that may only be a reflection of the fact that where a remedial statute is designed to protect a fundamental right or to prevent discrimination based on a suspect classification, it is "easier for Congress to show a pattern of state constitutional violations," as required at the second step of Boerne. See Hibbs, 538 U.S. at 736; Lane, 541 U.S. at 529. Because Section 5 seeks to protect the right to vote -- a "fundamental political right," Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886) -- and to prohibit discrimination based on race -- an "immediately suspect" classification, see Johnson v. California, 543 U.S. 499, 509 (2005) -- the showing needed to substantiate Section 5 was easier
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to make in Katzenbach and City of Rome than in Kimel or Garrett, which involved classifications subject to less stringent levels of constitutional scrutiny. See Nw. Austin I, 573 F. Supp. 2d at 241.
The Attorney General relies heavily on Lopez, a Section 5 case decided shortly after Boerne, in arguing that congruence and proportionality review does not govern Shelby County's challenge to the constitutionality of Section 5. See Def.'s Reply in Supp. of Def.'s Mot. for Summ. J. [Docket Entry 67] at 6. But such reliance is unwarranted. In Lopez, the Supreme Court examined an as-applied challenge to Section 5 brought by Monterey County, California, a political subdivision covered by Section 4(b). See Lopez, 525 U.S. at 282. Monterey County alleged that Section 5 did not apply to its implementation of a voting change required by state law, since enactment of the change was non-discretionary and California -- the source of the change -- was not itself a covered jurisdiction subject to Section 5. Id. Rejecting this argument, the Court held that "the Act's preclearance requirements apply to measures mandated by a noncovered State to the extent that these measures will effect a voting change in a covered county." Id. at 269. The Court then briefly addressed the plaintiff's contention that Section 5 was unconstitutional to the extent that it was interpreted to apply "to voting measures enacted by States that have not been designated as historical wrongdoers in the voting rights sphere." Id. at 283. Citing Katzenbach and City of Rome, the Court explained that it had previously upheld Section 5 as a valid exercise of Congress's Fifteenth Amendment enforcement authority -- despite its "intrusion into areas traditionally reserved to the States" -- and that no different result was required just because Section 5 "is held to cover acts initiated by non-covered States." Id. The Court then referenced Boerne as having held that Congress may, under the Fourteenth
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Amendment, "'intrude[] into legislative spheres of autonomy previously reserved to the States.'" Id. (quoting Boerne, 521 U.S. at 518). Nowhere in Lopez did the Supreme Court mention either "congruence and proportionality" or "rational basis" review, or purport to apply either standard to Section 5. To the extent that Lopez cuts in either direction, then, the Court regards it as reaffirming that Katzenbach, City of Rome, and Boerne are consistent in their evolving descriptions of Congress's enforcement power under the Fourteenth and Fifteenth Amendments.
Because the Court finds no basis upon which to differentiate between the standards of review to be applied in the Fourteenth and Fifteenth Amendment enforcement contexts, it need not decide whether the 2006 reauthorization of Section 5 and Section 4(b) constituted an exercise of Congress's Fourteenth or Fifteenth Amendment enforcement authority, or a kind of hybrid legislation enacted pursuant to both amendments. Shelby County correctly points out that to date "[t]he Fifteenth Amendment has been the exclusive basis for upholding Section 5." See Pl.'s Reply at 47, 49 n.15; see also City of Rome, 446 U.S. at 173; Katzenbach, 383 U.S. at 327; Allen, 393 U.S. at 588 (Harlan, J., concurring in part, dissenting in part) (explaining that "Congress consciously refused to base s[ection] 5 of the Voting Rights Act on its powers under the Fourteenth Amendment"). But in adopting the Act's protections for language minorities in 1975 and then extending them in 2006, Congress expressly relied on its Fourteenth Amendment enforcement power as well, since the Fifteenth Amendment speaks only of discrimination on the basis of "race." See Nw. Austin I, 573 F. Supp. 2d at 243-44; see also S. Rep. No. 94-295, at 814-15 (1975) (explaining that "[t]he Fourteenth Amendment is added as a constitutional basis for these voting rights amendments" in order to "doubly insure the constitutional basis for the Act," even though the Department of Justice has taken the position that "'language minorities' are
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members of a 'race or color' group protected under the Fifteenth Amendment"); 42 U.S.C. § 1973aa-1a (finding that, because "citizens of language minorities have been effectively excluded from participation in the electoral process," it is necessary to prescribe remedial measures "to enforce the guarantees of the fourteenth and fifteenth amendments").
Some have argued that this reliance on the Fourteenth Amendment was unnecessary, and that Congress "could have relied solely on its Fifteenth Amendment authority" in extending the Act's protections to language minorities, since the Supreme Court has "strongly suggested" that language minorities "qualify as racial groups" within the meaning of the Fifteenth Amendment. See, e.g., Nw. Austin I, 573 F. Supp. 2d at 243-44. Regardless, there are additional reasons to question whether Section 5 can still be viewed as pure Fifteenth Amendment enforcement legislation. Section 5 is designed to combat not only outright denials of the right to vote, but also vote dilution -- "defined as a regime that denies to minority voters the same opportunity to participate in the political process and to elect representatives of their choice that majority voters enjoy." Bossier II, 528 U.S. at 359 (Souter, J., concurring in part, dissenting in part). Although there is an argument that measures that dilute minorities' voting strength violate the Fifteenth Amendment's guarantee against "abridgment" of the right to vote, see id., the Supreme Court thus far has "dealt with vote dilution only under the Fourteenth Amendment," id., and has "never held that vote dilution violates the Fifteenth Amendment," Bossier II, 528 U.S. at 334 n.3. To the extent that the Attorney General seeks to rely on evidence of vote dilution to justify the 2006 reauthorization of Section 5, then, it might be necessary to find that Section 5 constitutes valid Fourteenth Amendment -- as opposed to Fifteenth Amendment -- enforcement legislation. But again, this issue need not be decided, in light of the Court's conclusion that Boerne provides the
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proper mode of analysis to assess challenges to Congress's enforcement power under both § 5 of the Fourteenth Amendment and § 2 of the Fifteenth Amendment. Hence, irrespective of whether Section 5 is considered § 2 enforcement legislation, § 5 enforcement legislation,11 or a kind of hybrid legislation enacted pursuant to both amendments, it can only be upheld if it is "congruent and proportional" to the problem of unconstitutional racial discrimination in voting. III. Application of Boerne to the 2006 Extension of Section 5
A. The Scope of the Constitutional Right At Issue The first step in determining whether the 2006 extension of Section 5 passes muster under Boerne is "to identify with some precision the scope of the constitutional right at issue." See Garrett, 531 U.S. at 365; see also Lane, 541 U.S. at 522. Where a statute is designed to protect a fundamental right or to prevent discrimination based on a suspect classification, it is "easier for Congress to show a pattern of state constitutional violations," as required at the second step of the Boerne analysis. See Hibbs, 538 U.S. at 736. In other words, Congress is more likely to be able to identify unconstitutional state action justifying remedial, prophylactic enforcement legislation when it seeks to protect against discrimination based on a classification like gender, "which triggers heightened scrutiny," see Hibbs, 538 U.S. at 736, than when it seeks to protect against discrimination based on a trait such as disability, which "incurs only the minimum 'rational-basis' review," see Garrett, 531 U.S. at 366. This is because "the heightened
11 In Hibbs, the Supreme Court noted that it had previously upheld "certain prophylactic provisions of the Voting Rights Act as valid exercises of Congress' § 5 power, including the literacy test ban and preclearance requirements for changes in States' voting procedures." Hibbs, 538 U.S. at 737-38. In support of this proposition, however, the Supreme Court cited only one case that dealt with preclearance requirements, and that case -- Katzenbach -- upheld Section 5 as a valid exercise of Congress's § 2 power, not its § 5 power. See id. (citing Katzenbach v. Morgan, 384 U.S. 641; Oregon v. Mitchell, 400 U.S. 112; Katzenbach, 383 U.S. 301).
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level of constitutional scrutiny" that accompanies a suspect classification or a fundamental right means that "the historical problems" identified by Congress with respect to that class or right are more likely to amount to constitutional violations, and a history of constitutional violations is a necessary predicate for the enactment of remedial enforcement legislation under the Reconstruction Amendments. See Posner, 10 N.Y.U. J. LEGIS. & PUB. POL'Y at 87. It is for this reason that "the Court gives Congress significant leeway to craft broad remedial prohibitions when fundamental rights or protected classes are at stake." Nw. Austin I, 573 F. Supp. 2d at 270.
Significantly, Section 5 not only seeks to protect the right to vote -- a "fundamental political right, because [it is] preservative of all rights," Yick Wo, 118 U.S. at 370 -- but also seeks to protect against discrimination based on race, "the classification of which we have been the most suspect," see M.L.B. v. S.L.J., 519 U.S. 102, 135 (1996) (Thomas, J., dissenting). Because Section 5 is designed to protect "both the quintessential suspect classification (race) and the quintessential civil right (the franchise)," defendant-intervenors are correct that Congress acted at the "zenith of its constitutional enforcement authority" when it reauthorized Section 5 in 2006. See Harris Def.-Ints.' Mot. for Summ. J. ("Harris Mot.") [Docket Entry 55] at 22; see also Nathaniel Persily, The Promise and Pitfalls of the New Voting Rights Act, 117 YALE L.J. 174, 176 (2007) (explaining that Congress "acted at the apex of its power to enforce the guarantees of the post-Civil War Amendments" when it enacted the Voting Rights Act). Just as in Hibbs and Lane, then, it is "easier for Congress to show a pattern of state constitutional violations" justifying the need for Section 5 than when Congress seeks to enforce rights subject to lesser levels of constitutional review, since "racial classifications and restrictions on the right to vote like gender discrimination (Hibbs) and access to the courts (Lane) - are 'presumptively invalid.'"
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Nw. Austin I, 573 F. Supp. 2d at 270 (quoting Hibbs, 538 U.S. at 736). B. Evidence of Unconstitutional Voting Discrimination in the Legislative Record Having determined "the metes and bounds of the constitutional right[s] in question," the
core issue is whether Congress succeeded in identifying "a history and pattern" of unconstitutional, state-sponsored voting discrimination to justify the 2006 reauthorization of Section 5. See Garrett, 531 U.S. at 368. Shelby County argues that the evidence of so-called "second generation barriers" to voting upon which Congress relied in 2006 when it re-authorized Section 5 -- including evidence of racially polarized voting, preclearance statistics, the continued filing of Section 2 cases, and the dispatch of federal observers -- cannot justify the extension of Section 5, since "none of this evidence comes close to proving the existence of pervasive, intentional discrimination." See Pl.'s Mot. at 32. Instead, Shelby County contends, there are only two types of evidence that can be used to establish the constitutional necessity of Section 5: "(1) direct evidence of widespread, intentional voting discrimination and gamesmanship; and (2) registration data, turnout statistics, and the election of minorities to public office." Pl.'s Reply at 37 (emphasis added). This argument is flawed in several respects.
To begin with, "[i]n identifying past evils, Congress obviously may avail itself of information from any probative source." Katzenbach, 383 U.S. at 330. To be sure, there must be an established "pattern of constitutional violations" in order to justify remedial, prophylactic legislation like Section 5, see Fla. Prepaid, 527 U.S. at 640, and discriminatory intent is a necessary element of a Fourteenth or Fifteenth Amendment violation, see, e.g., City of Mobile, 446 U.S. at 62, 67. Shelby County is therefore correct that some evidence of purposeful statesponsored voting discrimination is needed to sustain Section 5. But Shelby County is incorrect
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to suggest that such evidence must be "direct." See Pl.'s Reply at 37. To the contrary, the Supreme Court has repeatedly recognized that unconstitutional "discriminatory intent need not be proved by direct evidence." See Rogers v. Lodge, 458 U.S. 613, 618 (1982) (emphasis added) (citing Arlington Heights v. Metro. Housing Dev. Corp., 429 U.S. 252, 265 (1977); Washington v. Davis, 426 U.S. 229, 242 (1976)). Rather, "an invidious discriminatory purpose may often be inferred from the totality of the relevant facts, including the fact, if it is true, that the law bears more heavily on one race than another." Washington v. Davis, 426 U.S. at 242. Moreover, as the Supreme Court in Katzenbach made clear, Congress is not bound by the standards of proof applicable in judicial proceedings "when it prescribes civil remedies against other organs of government under s[ection] 2 of the Fifteenth Amendment." See Katzenbach, 383 U.S. at 330. Because the discriminatory effects of a challenged practice can constitute "powerful evidence of the intent with which it was adopted or maintained," Continuing Need 186 (prepared statement of Pamela S. Karlan), this Court would be remiss if it were to limit its examination of the legislative record to judicially proven instances of discriminatory intent.
Shelby County's suggestion that circumstantial evidence of voting discrimination cannot justify the 2006 reauthorization of Section 5 is also belied by City of Rome. There, in upholding the 1975 extension of Section 5, the Supreme Court pointed to no recent "direct" evidence of intentional voting discrimination by covered jurisdictions. Instead, it found that Section 5's reauthorization was justified based on the country's history of intentional discrimination in voting, together with more recent circumstantial evidence of continued voting discrimination, which included evidence of racial disparities in voter registration and turnout, the number of minority elected officials, and the nature and number of Section 5 objections. See City of Rome,
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446 U.S. at 181. Clearly, then, such evidence is -- at the very least -- relevant in assessing whether Section 5 remains "justified by current needs." Nw. Austin II, 129 S. Ct. at 2512.
Not only is Shelby County incorrect to suggest that Section 5 can only be sustained on the basis of recent "direct" evidence of intentional voting discrimination, but it is also wrong to suggest that Congress lacked such evidence when it reauthorized Section 5 in 2006. Having examined the 2006 legislative record, this Court -- like the three-judge court in Nw. Austin I -has found ample evidence of purposeful voting discrimination by covered jurisdictions. The record describes one instance in which Mississippi state legislators opposed a redistricting plan that would have given African-Americans an increased opportunity to elect representatives of their choice, referring to the plan "on the House floor as the 'black plan' and privately as 'the nplan.'" S. Rep. No. 109-295, at 14. On another occasion, Georgia's Chair of its House Reapportionment Committee told his colleagues in the Georgia legislature that he was uncertain as to the outcome of the state's redistricting process, "because the Justice Department is trying to make us draw nigger districts and I don't want to draw nigger districts." See Busbee v. Smith, 549 F. Supp. 494, 501 (D.D.C. 1982); see also H.R. Rep. No. 109-478, at 67; Voting Rights Act: The Judicial Evolution of the Retrogression Standard, Hearing Before the Subcomm. on the Constitution of the H. Comm. on the Judiciary, 109th Cong. 54 (Nov. 9, 2005) (prepared statement of Laughlin McDonald). In Shelby County's home state of Alabama, there were reports of voting officials "closing the doors on African-American voters before the . . . voting hours were over," see 1 Evidence of Continued Need 182 (Nat'l Comm'n Report), and of white voting officials using racial epithets to describe African-American voters in the presence of federal observers, see S. Rep. No. 109-295, at 130, 132. In both Texas and South Carolina,
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witnesses described various kinds of intimidation and harassment being directed at blacks at the polls, see 1 Evidence of Continued Need 138 (Nat'l Comm'n Report); S. Rep. No. 109-295, at 307, 311, while one witness from Virginia testified that "hate literature" had been distributed in his neighborhood, threatening to "lynch" African-Americans who voted in particular ways, see S. Rep. No. 109-295, at 355. All these examples of intentional voting discrimination took place not in the 1950s or 1960s, but in the 1980s, 1990s, and 2000s.
Yet Shelby County argues that even this kind of evidence carries little weight, as it is merely "anecdotal" and such "anecdotal examples of intentional discrimination" cannot justify the continued operation of Section 5. See Pl.'s Reply 39. Again, this Court disagrees. As Professor Theodore Arrington explained in his 2006 testimony before the Senate Judiciary Committee, "[t]he examination of specific cases cannot be dismissed as mere anecdotes," because "anecdote is the singular of data." Continuing Need 26 (responses of Theodore S. Arrington to questions submitted by Senators Cornyn, Coburn, Leahy, Kennedy, and Kohl) ("Arrington Responses"); see also Understanding the Benefits and Costs of Section 5 PreClearance, Hearing Before the S. Comm. on the Judiciary, 109th Cong. 19 (May 17, 2006) ("Benefits and Costs") (testimony of Drew S. Days III) (explaining that to characterize "examples that are quite concrete . . . violations of the Voting Rights Act . . . as anecdotes, I think, is really to miss the point" since these "so-called anecdotes go right to the very heart of the matter"). Taken together, the large collection of anecdotes in the legislative record constitutes a valid form of data that must be assessed and weighed -- not dismissed as "isolated examples" of voting discrimination, see Pl.'s Reply at 39.
Anecdotes are by no means the only form of data in the legislative record that shows the
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continued existence of unconstitutional voting discrimination by covered jurisdictions. One study relied on by Congress found that 89% of the 209 objections to redistricting plans in the 1990s were based, at least in part, on discriminatory intent. See Preclearance Standards 181 (Peyton McCrary et al., "The End of Preclearance As We Knew It: How the Supreme Court Transformed Section 5 of the Voting Rights Act") (hereinafter, "McCrary Study"). In other words, the Justice Department determined that discriminatory purpose was a motivating factor in no less than 186 of the redistricting plans proposed by covered jurisdictions during the 1990s. Id. at 177, 181. Another study in the legislative record identified 24 lawsuits involving more than one hundred instances of intentionally discriminatory conduct in voting since 1982. See Impact and Effectiveness 986 (Katz Study). Such evidence can hardly be dismissed as "anecdotal."
Ultimately, an assessment of all the evidence in the legislative record confirms that Congress was, in fact, responding to what it reasonably perceived to be a continuing history and pattern of unconstitutional conduct by covered jurisdictions when it reauthorized Section 5 in 2006. Although some scholars voiced concern during the 2006 reauthorization hearings that "the Act has been so effective it will be hard to produce enough evidence of intentional discrimination by the states so as to justify the extraordinary preclearance remedy for another 25 years," see, e.g., Introduction to Expiring Provisions 216 (prepared statement of Richard L. Hasen) ("Hasen Prepared Statement"); id. at 221 (prepared statement of Samuel Issacharoff) ("Issacharoff Prepared Statement"), Congress succeeded in doing just that. Despite the marked improvements in minority political participation over the last several decades -- due, in large part, to the effectiveness of the Voting Rights Act -- the 2006 legislative record reveals that, just as in 1975, "'a bleaker side of the picture yet exists.'" City of Rome, 446 U.S. at 180 (internal
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citations omitted). This Court will begin, as did the three-judge court in Nw. Austin I, by examining the
three types of evidence relied on by the Supreme Court in City of Rome when it upheld the 1975 reauthorization of Section 5 -- evidence of (1) racial disparities in voter registration (and turnout); (2) the number of minority elected officials; and (3) the nature and number of Section 5 objections. The Court will then assess the other types of evidence cited by Congress when it reauthorized Section 5 in 2006, including evidence of (4) more information requests; (5) Section 5 preclearance suits; (6) Section 5 enforcement actions; (7) Section 2 litigation; (8) the dispatch of federal observers; (9) racially polarized voting; and (10) Section 5's deterrent effect. In the course of its review, the Court will call particular attention to the evidence of intentional, statesponsored voting discrimination contained in the legislative record, keeping in mind that there must be "a history and pattern of unconstitutional [conduct] by the States" to justify a remedial, prophylactic measure like Section 5. See Garrett, 531 U.S. at 368.
1. Minority Voter Registration and Turnout Shelby County points to the "dramatic rise in African-American voter registration and turnout rates" since 1965 as evidence that Section 5's protections are no longer constitutionally justified. See Pl.'s Reply at 44; see also Pl.'s Mot. at 25-26. It is true that there has been a substantial increase in black voter registration and turnout in the South since the Voting Rights Act was first enacted. See 1 Evidence of Continued Need 156-57 (Nat'l Comm'n Report). In 1964, the year before the Act's passage, the black voter registration rate was only 32% in Louisiana, 23% in Alabama, and a meager 6.7% in Mississippi. Id. In each of these states, the white voter registration rate was at least 50 percentage points higher than the corresponding rate
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for blacks. See Katzenbach, 383 U.S. at 313. Only ten years later, however, black voter registration rates in the South had already increased substantially -- no doubt as a result of the Act's prohibition of those tests and devices that had previously been employed to deny blacks access to the ballot. See S. Rep. No. 94-295, at 779. In Mississippi, for example, the percentage of blacks who were registered to vote multiplied almost tenfold in the seven years following the Act's passage, jumping from 6.7% in 1964 to 63.2% in 1971-1972. Id.
But in spite of these significant improvements, the Supreme Court in City of Rome remained troubled by the "[s]ignificant disparity" that "persisted between the percentages of whites and Negroes registered in at least several of the covered jurisdictions." 446 U.S. at 180. In 1975, black voter registration rates in Alabama, Louisiana, and North Carolina continued to lag behind those of whites by as much as 23.6, 16, and 17.8 percentage points, respectively. See S. Rep. No. 94-295, at 779. Hence, while "the City of Rome Court acknowledged the dramatic progress the South had made since 1965," it still "found the evidence of continued discrimination sufficient to justify the 1975 extension" of the Act's temporary provisions. See Nw. Austin I, 573 F. Supp. 2d at 247. After City of Rome, then, the question is not whether there has been substantial improvement in minority voter registration and turnout since the Act's passage in 1965 (or even since the Act's reauthorization in 1975 or 1982), but whether, in spite of this substantial improvement, there remained significant racial disparities in voter registration and turnout when Congress reauthorized Section 5 in 2006. See id.
Just as in 1975, Congress in 2006 did find that significant disparities persisted between minority and non-minority voter registration and turnout in several jurisdictions subject to preclearance under Section 5. In Virginia, for example, Congress reported that the black voter
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registration rate in 2004 was almost 11 percentage points behind the corresponding rate for whites, while the racial disparity in voter turnout was even greater, with only 49% of blacks turning out to vote, as compared to 63% of whites. See H.R. Rep. No. 109-478, at 25. Similarly, in Texas, Congress found a 20 percentage point gap in voter registration between whites and Hispanics, id. at 29, with an even greater gap in voter turnout, see S. Rep. No. 109-295, at 11. Nationwide, the 2004 voter registration and turnout rates for Hispanics were approximately half the corresponding rates for whites, with only 34.3% of Hispanics registering and 28% turning out to vote, as compared to 67.9% and 60.3% for whites. Id. Although the difference between black and white voter registration and turnout rates was less significant, blacks nationwide still registered and turned out to vote at rates below those of whites in 2004, with only 64.3% of blacks registering, and 56.1% of blacks turning out to vote. Id.
Moreover, as the three-judge court in Nw. Austin I pointed out, these statistics understate the true disparities between minority and non-minority voter registration and turnout. That is because in computing the voter registration and turnout rates for whites, Congress included Hispanics. See Nw. Austin I, 573 F. Supp. 2d at 248. Given the low registration and turnout rates of Hispanic voters, the inclusion of these voters in the "white" category served to lower the overall white voter registration and turnout rates reported by Congress, thereby reducing the true disparity between black and white voter registration and turnout (as well as the disparity between Hispanic and white voter registration and turnout). See id.; see also Persily, 117 YALE L.J. at 197 (explaining that "once Hispanics are taken out of the white category the picture changes considerably"). For instance, Congress reported that in five of the 16 states covered in whole or in part by Section 4(b) (California, Georgia, Mississippi, North Carolina, and Texas), voter
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registration and turnout in 2004 was higher among blacks than whites. See S. Rep. No. 109-295, at 11. But when black voter registration and turnout rates are compared to the rates for nonHispanic whites, only one of these states (Mississippi) had higher black than white voter registration and turnout in 2004. See Nw. Austin I, 573 F. Supp. 2d at 248. In each of the other states covered in whole or in part by Section 4(b) for which comparative data was available, voter registration was lower for blacks than for non-Hispanic whites. See U.S. Census Bureau, Voting and Registration in the Election of November 2004 tbl. 4a., Reported Voting and Registration of the Total Voting-Age Population, by Sex, Race and Hispanic Origin, for States, available at http://www.census.gov/population/www/socdemo/voting/cps2004.html (hereinafter, "2004 U.S. Census Bureau Report") (last visited September 19, 2011); see also S. Rep. No. 109295, at 11 (relying on 2004 U.S. Census Bureau Report).12
In many covered states, the disparities between black and non-Hispanic white voter registration and turnout were stark: in both Arizona and Florida, for example, voter turnout rates among non-Hispanic whites were more than 20 percentage points higher than voter turnout rates among blacks, while in Louisiana and Texas, voter registration rates among non-Hispanic whites were more than five percentage points higher than voter registration rates among blacks. See 2004 U.S. Census Bureau Report. When the data for non-Hispanic whites are used, the disparities between black and white voter registration and turnout rates in Virginia become even
12 In North Carolina and Alabama, for which the 2004 voter registration rate for blacks was lower than the rate for non-Hispanic whites, the voter turnout rate for blacks was higher than the rate for non-Hispanic whites. See 2004 U.S. Census Bureau Report. Aside from North Carolina, Alabama and Mississippi, all of the remaining 14 states covered in whole or in part by Section 4(b) had lower voter registration and turnout rates for blacks than for non-Hispanic whites. See id.
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more pronounced than those reported by Congress. Whereas Congress found that Virginia had a 10.8 percentage point racial disparity in voter registration and a 14 percentage point racial disparity in voter turnout, see H.R. Rep. No. 109-478, at 25, the racial disparities become 14.2 and 16.6 percentage points, respectively, when black voter registration and turnout rates are compared to the rates for non-Hispanic whites. See 2004 U.S. Census Report.
The 2004 disparities between Hispanic and white voter registration also become more severe when Hispanics are taken out of the "white" category. Although Congress reported a 20 percentage point gap in voter registration between Hispanics and whites in Texas in 2004, see H.R. Rep. 109-478, at 29, the gap increases to 32.1 percentage points when the rate for Hispanics is compared to the rate for non-Hispanic whites, see 2004 U.S. Census Report. Even greater gaps between Hispanics and non-Hispanic whites existed in other covered jurisdictions, with Hispanics in Arizona, California and Virginia registering in 2004 at rates more than 40 percentage points lower than the corresponding rates for non-Hispanic whites. See id. In Georgia and North Carolina, the racial disparities in registration rates between Hispanics and non-Hispanic whites were the highest of any covered jurisdictions, with only 9.6% of Hispanics registering to vote in Georgia and 13.4% of Hispanics registering to vote in North Carolina, as compared to 68% and 73.2% of non-Hispanic whites, respectively -- in other words, there was almost a 60 percentage point gap in voter registration between Hispanics and non-Hispanic whites in both Georgia and North Carolina. See id.
As the three-judge court in Nw. Austin I explained, these disparities in voter registration and turnout are "comparable to the disparity the City of Rome Court called 'significant.'" 573 F. Supp. 2d at 248 (quoting City of Rome, 446 U.S. at 180). In City of Rome, the Court deemed as
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"significant" the 16, 17.8, and 23.6 percentage point disparities in voter registration rates thenexisting between blacks and whites in Louisiana, North Carolina, and Alabama. See S. Rep. No. 94-295, at 779; City of Rome, 446 U.S. at 180. In 2004, there were 14.2, 17.8, and 19.2 percentage point disparities between black and white voter registration rates in Virginia, Arizona, and Florida, respectively (using the data for non-Hispanic whites). See 2004 U.S. Census Report. Moreover, there were far greater gaps between Hispanic and non-Hispanic white voter registration rates than even those held "significant" in City of Rome, with disparities nearing 60 percentage points in two covered jurisdictions. See id.
2. Minority Elected Officials Shelby County next points to the dramatic increase in the number of African-American elected officials since 1965 as proof that Section 5 has outlived its usefulness. See Pl.'s Mot. at 27-28; Pl.'s Reply at 46-47. Again, however, the number of African-American elected officials had already risen substantially by the time that Section 5 was reauthorized in 1975. Whereas there were only 72 black elected officials in the 11 southern states when the Voting Rights Act was first passed in 1965, there were 963 black elected officials in the seven southern states subject to preclearance by 1974, including 68 black state legislators. See S. Rep. No. 94-295, at 780. Yet the Supreme Court in City of Rome did not regard this progress as fatal to the 1975 reauthorization of the Act's temporary provisions. Although the Court recognized that "the number of Negro elected officials had increased since 1965," see City of Rome, 446 U.S. at 180, the Court nonetheless heeded Congress's advice "not to be misled by sheer numbers." See S. Rep. No. 94-295, at 780. Instead, it examined the nature of the positions to which AfricanAmericans had been elected, and found that "most held only minor positions, none held statewide
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office, and their number in the state legislatures fell far short of being representative of the number of Negroes residing in the covered jurisdictions." See City of Rome, 446 U.S. at 181.
As of 2000, 35 African-Americans held statewide office -- certainly an improvement from 1975 -- but the percentage of statewide elected officials who were African-American (5%) was still significantly below the African-American proportion of the voting-age population (11.9%). See 1 Evidence of Continued Need 156-58 (Nat'l Comm'n Report); H.R. Rep. No. 109478, at 33. The House Committee on the Judiciary found that in Mississippi, Louisiana, and South Carolina -- all of which have been subject to preclearance since 1965 -- no AfricanAmerican had ever been elected to statewide office. See H.R. Rep. No. 109-478, at 33. And in Alabama, only two African-Americans had ever been elected to statewide office as of 2006. See S. Rep. No. 109-295, at 133 (citing Benefits and Costs 97 (responses of Fred D. Gray to questions submitted by Senators Cornyn, Leahy, Coburn, and Kennedy) ("Gray Responses")).
Congress also heard evidence in 2006 that blacks were under-represented in state legislatures in the South based on their percentage of the population. Specifically, the House Committee on the Judiciary reported that in Alabama, Georgia, Louisiana, Mississippi, South Carolina, and North Carolina, blacks comprised 35% of the population, but only 20.7% of the state legislators. See H.R. Rep. 109-478, at 33. The House Committee on the Judiciary similarly found that the number of Latino elected officials had "failed to keep pace with [their] population growth." See id. at 33-34. Shelby County objects to the Court's reliance on such evidence in assessing the continued need for Section 5, arguing that "proportional representation is not a constitutional aim." See Pl.'s Reply at 46. That may be true. But in upholding the constitutionality of the 1975 reauthorization of Section 5 in City of Rome, the Supreme Court
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noted that the percentage of black elected officials in covered jurisdictions still fell short of their total percentage of the population. See City of Rome, 446 U.S. at 181. Following City of Rome, then, it is at least relevant that the percentage of minority elected officials continued to lag behind the minority percentage of the population when Congress reauthorized Section 5 in 2006.
3. Section 5 Objections The Supreme Court in City of Rome cited "'[t]he recent objections entered by the Attorney General . . . to Section 5 submissions'" as a clear indication of the "'continuing need for this preclearance mechanism.'" 446 U.S. at 181 (quoting H.R. Rep. No. 94-196, at 10-11). So, too, did Congress in 2006 point to the "hundreds of objections interposed" by the Attorney General in recent years as "[e]vidence of continued discrimination in voting" that warranted the reauthorization of Section 5. See 2006 Amendments § 2(b)(4)(A), 120 Stat. at 577. Shelby County, however, argues that objection-related data cannot sustain the constitutionality of Section 5 for two reasons. First, Shelby County points to the fact that the number of Section 5 objections "has become exceedingly small" over the past several decades, as the Attorney General objected to less than 1% of all preclearance submissions between 1982 and 2004. See Pl.'s Reply at 56 (internal citations omitted). Second, Shelby County contends that objections are not "legitimate proxies for the type of purposeful discrimination needed to reauthorize Section 5." Pl.'s Mot. at 32. Both of these contentions are somewhat misleading. With respect to Shelby County's first argument, it is undeniable that the percentage of preclearance submissions resulting in an objection -- which has always been low -- has continued to decline steadily over time. See 1 Evidence of Continued Need 197 (Nat'l Comm'n Report). Whereas the Justice Department objected to 4.06% of all preclearance submissions from 1968 to
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1972, the objection rate dropped in each successive five-year interval between 1972 and 2002, reaching a low of .05% during the 1998 to 2002 time-frame. See Introduction to Expiring Provisions 219 (attachment to Hasen Prepared Statement). Since 2002, the objection rate has remained below 1%, with the Justice Department issuing only eight objection letters in response to 4,628 preclearance submissions in 2003, three objection letters in response to 5,211 preclearance submissions in 2004, and one objection letter in response to 4,734 preclearance submissions in 2005. See S. Rep. No. 109-295, at 13-14.
The decline in objection rates does not tell the full story, however. Notwithstanding the low rates of objections in recent years, the Justice Department still objected to more than 700 proposed voting changes between 1982 and 2006. See H.R. Rep. No. 109-478, at 21; S. Rep. No. 109-295, at 13. Moreover, the National Commission on the Voting Rights Act reported that more objections were interposed by the Attorney General between 1982 and 2004 than between 1965 and 1982, with nine of the 16 states covered by Section 4(b) receiving more objections after 1982 than before. See 1 Evidence of Continued Need 172-73 (Nat'l Comm'n Report); see also H.R. Rep. No. 109-478, at 21. To be sure, the two time-periods (1965 to 1982 and 1982 to 2004) are not equal in length, but it remains true that a substantial number of objections have been lodged since the 1982 reauthorization of Section 5. According to the National Commission on the Voting Rights Act, the Justice Department objected to an average of more than four preclearance submissions per month from August 1982 through December 2004. Id. at 172.
It is also significant to recall that a single objection can often affect thousands of voters, as objections are lodged not only in response to small-scale electoral changes such as the moving of a polling place, but also in response to large-scale changes such as state-wide redistricting
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plans. See Continuing Need 58 (Earls Responses). For example, in Alabama, the Justice Department objected to 39 preclearance submissions from 1982 through 2004, see 1 Evidence of Continued Need (Nat'l Comm'n Report) 259 (Map 5C), but these 39 objections included an objection to a congressional redistricting plan and several objections to county-wide redistricting plans, see 1 History, Scope, & Purpose 109-17 (appendix to statement of Bradley J. Schlozman, Complete Listing of Objections Pursuant to Sections 3(c) and 5 of the Voting Rights Act of 1965). In Louisiana, the Justice Department objected to 88 voting changes between 1982 and 2004, see 1 Evidence of Continued Need (Nat'l Comm'n Report) 264 (Map 5F), including every Louisiana House of Representatives redistricting plan that was submitted for preclearance. Indeed, from the passage of the Voting Rights Act in 1965 through its reauthorization in 2006, "[n]o Louisiana House of Representatives redistricting plan . . . has been precleared as initially submitted." Introduction to Expiring Provisions 152 (responses of Theodore M. Shaw to questions submitted by Senators Specter, Cornyn, Leahy, Kennedy, and Schumer) ("Shaw Responses").
Alabama and Louisiana are by no means unique among covered jurisdictions with respect to the receipt of objections in response to their redistricting plans. Even though redistricting plans accounted for only 2.4% of the preclearance submissions from 1982 through 2004, they accounted for 16.4% of the Section 5 objections during that time-frame. See U.S. Commission on Civil Rights, Voting Rights Enforcement & Reauthorization: The Department of Justice's Record of Enforcing the Temporary Voting Rights Act Provisions 33 (May 2006), available at http://www.usccr.gov/pubs/051006VRAStatReport.pdf (last visited September 19, 2011). Given that many of these redistricting plans were state- or county-wide, it is perhaps unsurprising that
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Section 5 objections from 2000 through May 2006 have aided an estimated 663,503 minority voters. Continuing Need 58 (Earls Responses). According to data compiled by one expert, a mere nine objections to South Carolina preclearance submissions during this time-frame served to protect 96,143 African-American voters, while six objections to Texas preclearance submissions served to protect 359,978 African-American and Hispanic voters. Id. Irrespective of the decline in objection rates, then, there is strong evidence that Section 5 has remained a "vital prophylactic" tool in "protecting minority voters from devices and schemes that continue to be employed by covered States and jurisdictions." H.R. Rep. No. 109-478, at 21.
There are many plausible explanations for the recent decline in objection rates, aside from the optimistic one urged by Shelby County -- i.e., that "the discriminatory agenda of the covered jurisdictions that existed in 1965 . . . no longer exists," Pl.'s Mot. at 29. To begin with, Section 5 submissions (and associated objections) are always greatest in the years immediately following redistricting cycles, which occur at the beginning of the decade. See, e.g., Continuing Need 54 (Earls Responses); Introduction to Expiring Provisions 165-66 (Shaw Responses). It is therefore to be expected that the number of preclearance submissions -- and hence, objections -- would be low in a mid-decade year like 2005. See Continuing Need 54 (Earls Responses).
In addition, many have speculated that the Supreme Court's 2000 decision in Bossier II is at least partially responsible for the post-2000 decline in objection rates. See, e.g., id. at 54, 6970; Preclearance Standards 14 (Posner Prepared Statement); 1 Evidence of Continued Need 19899 (Nat'l Comm'n Report). As previously explained, the Supreme Court in Bossier II "held that discriminatory purpose under Section 5 no longer is co-extensive with the ordinary meaning of discriminatory purpose or with the meaning of discriminatory purpose under the Fourteenth and
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Fifteenth Amendments." See Preclearance Standards 12 (Posner Prepared Statement). Instead, in Bossier II the Supreme Court found that discriminatory purpose under Section 5 encompasses only "the intent to cause retrogression." Id. Therefore, in order to object to a voting change under the "purpose" prong of Section 5 after Bossier II, the Justice Department needed to find "not simply that the jurisdiction officials' purpose was to discriminate, but that it was to make the situation for minorities worse than before – i.e., that the officials intended to 'retrogress.'" 1 Evidence of Continued Need (Nat'l Comm'n Report) 198. The difficulty of proving that state officials intended to retrogress could explain the decline in purpose-based objections (and hence, total objections) in the wake of Bossier II. As one voting rights lawyer has pointed out, if the Bossier II interpretation of "discriminatory purpose" had applied prior to 2000, it would have required the Justice Department to preclear even the redistricting plan proposed by the notorious Georgia "state legislator who openly declared his opposition to drawing a 'nigger district,'" because the plan -- though motivated by an unabashed intent to discriminate -- was not retrogressive. Id. at 199.
Other potential explanations for the recent decline in objection rates include underenforcement of Section 5 by the Justice Department, which some former attorneys in the Voting Section believe to be the case, see 1 Evidence of Continued Need 197-98 (Nat'l Comm'n Report); Continuing Need 54 (Earls Responses) (suggesting that there have been "circumstances where the Department should have objected, but failed to"), or the possibility that the Justice Department has increasingly relied on "more information requests" and other types of informal communications with covered jurisdictions -- rather than objection letters -- as the primary means of preventing discriminatory voting changes, Continuing Need 57 (Earls Responses). Finally,
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even if the decline in objection rates does reflect increased compliance with the Voting Rights Act on the part of covered jurisdictions, as some have suggested, see, e.g., 1 History, Scope, & Purpose 12 (prepared statement of Bradley J. Schlozman) (stating that the "tiny objection rate reflects the overwhelming – indeed, near universal – compliance with the Voting Rights Act by covered jurisdictions"), that is not necessarily indicative of a widespread change in racial attitudes. Rather, it could just as easily mean that "covered jurisdictions have accepted Section 5 as a principle they must comply with whenever they make a voting change, like it or not, and they have developed procedures for substantially increasing the likelihood of preclearance." 1 Evidence of Continued Need 200 (Nat'l Comm'n Report).
But whatever the explanation for the declining objection rate in recent years, the fact remains that the Justice Department issued 754 objection letters between 1982 and 2006, see S. Rep. 109-295, at 13, many of which were based on findings of discriminatory intent, see Nw. Austin I, 573 F. Supp. 2d at 221. Shelby County is correct that not all objection letters "involve actual intentional discrimination," see Pl.'s Reply at 58, given that Section 5 prohibits a "somewhat broader swath of conduct," see Kimel, 528 U.S. at 81, than the Fifteenth Amendment itself proscribes. But the Attorney General only denies preclearance to a voting change under Section 5 if he cannot conclude that the change "neither has the purpose nor will have the effect of denying or abridging the right to vote on account of race or color." See 42 U.S.C. § 1973c(a). In its attempt to minimize the significance of the objection-related data in the legislative record, Shelby County ignores the substantial number of objections that the Attorney General has made under Section 5's "purpose" prong in recent years -- even though, as the Nw. Austin I three-judge court recognized, these intent-based objections "provide particularly salient evidence of
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potentially unconstitutional state action." 573 F. Supp. 2d at 252. According to one study in the legislative record, as many as 43% of all Section 5
objections in the 1990s were based solely on discriminatory intent, while another 31% of objections were based at least in part on discriminatory intent. See Preclearance Standards 136, 180 tbl. 2 (McCrary Study). In other words, "the intent prong was involved in a remarkable 74 percent of all objections in that decade." Id. Congress also heard testimony that until Bossier II was decided, "the clear trend line, from the 1970s to the 1980s to the 1990s, was that discriminatory purpose increasingly was the basis on which Section 5 objections were being interposed." Id. at 13 (Posner Prepared Statement). From 1980 to 2000, the Attorney General lodged as many as 421 objections that were at least partially based on discriminatory intent, with 234 of those objections based solely on discriminatory intent. Id. at 180 tbl. 2 (McCrary Study). Purpose-based objections were particularly prevalent in the redistricting context, as approximately 80% of the Justice Department's objections to post-1990 redistricting plans were based on discriminatory intent. Id. at 13 (Posner Prepared Statement). In light of this data, the House Committee on the Judiciary had ample support for its conclusion in 2006 that the voting changes being sought by covered jurisdictions "were calculated decisions to keep minority voters from fully participating in the political process." H.R. Rep. No. 109-478, at 21.
The legislative record contains countless examples of objection letters since 1982 in which the Justice Department has denied preclearance to a jurisdiction's proposed voting change because the jurisdiction failed to establish the absence of a discriminatory purpose for its change. For instance, in 2001, the all-white Board of Aldermen in Kilmichael, Mississippi, cancelled a general election three weeks before it was scheduled to occur -- with no notice to the community
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-- after Census data showed that the town had recently become majority African-American, and after a significant number of African-Americans had been qualified as candidates in the aldermen and mayoral races. See H.R. Rep. No. 109-478, at 36-37; Continuing Need 60, 67 (Earls Responses); S. Rep. No. 109-295, at 225, 230-32; 1 History, Scope, & Purpose 1617 (appendix to statement of Bradley J. Schlozman, Copies of Objection Letters, by State, from 1980 to October 17, 2006) (hereinafter, "Schlozman Appendix"). The Justice Department objected to the town's decision to cancel the election, noting the suspicious "context in which the town [had] reached its decision" -- that is, "only after black persons had become a majority of the registered voters" and "only after the qualification period for the election had closed, and it [had] bec[o]me evident that there were several black candidates for office." 1 History, Scope, & Purpose 1617 (Schlozman Appendix). Because "[t]he town's purported non-racial rationales for the decision d[id] not withstand scrutiny," id., the Justice Department forced Kilmichael to reschedule the election, whereupon the town elected its first African-American mayor, as well as three AfricanAmerican aldermen, see H.R. Rep. No. 109-478, at 37.
The year after it objected to Kilmichael's cancelled election, the Justice Department objected to a redistricting plan proposed by the city of Albany, Georgia, based on its determination that Albany, too, had not "carried its burden of showing that its proposed plan was not designed with the intent to limit and retrogress the increased black voting strength." See 1 History, Scope, & Purpose 846 (Schlozman Appendix). The Justice Department examined Albany's history of redistricting with respect to Ward 4, which, it found, revealed an "intent to maintain Ward 4 as a district that remains at the . . . level of 70 percent white, thus eliminating any ability of black voters to elect a candidate of choice in this district." Id. After the black
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population in Ward 4 doubled from 20% to 40% during the 1980s, Albany adopted a redistricting plan that reduced the Ward's population to 30% black. Then, after the black population in Ward 4 increased from 30% to almost 51% during the 1990s, the city sought preclearance for another redistricting plan that would have reduced the population in Ward 4 to 30% black. Id. at 846-47. The Justice Department objected to the proposed plan, noting that "implicit" in the plan was "an intent to limit black political strength in the city to no more than four districts." Id. at 847.
Another intent-based objection was lodged against the 2001 redistricting plan proposed by Milden, Louisiana, in which the city "explicitly decided to eliminate one of the three existing majority minority districts," even though "it was not compelled to redraw the district," and had been "presented with an alternative that met all of its legitimate criteria while maintaining the minority community's electoral ability." Id. at 1150-52. The Justice Department interposed yet another intent-based objection to a redistricting plan submitted by Sumter County, South Carolina, that same year, after the county council "explicitly decided to . . . eliminate one of the four existing majority minority districts" despite the fact that the district's elimination had been "easily avoidable." See 2 Voting Rights Act: Section 5 of the Act – History, Scope, and Purpose, Hearing before the Subcomm. on the Constitution of the H. Comm. on the Judiciary, 109th Cong. 2082-84 (Oct. 25, 2005) (hereinafter, "2 History, Scope, & Purpose") (Schlozman Appendix). In explaining the basis of its objection, the Justice Department noted that the county had not been forced to redraw the district and that it had rejected an alternative, non-retrogressive plan. Id. at 2083-84. Under the circumstances, the Justice Department was unable to conclude "that the action in question was not motivated by a discriminatory intent to retrogress." Id. at 2084.
These are just a few examples of the post-1982 objections to redistricting plans that have
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been lodged -- at least in part -- on the basis of discriminatory intent. There are many others. See, e.g., 1 History, Scope, & Purpose 433 (Schlozman Appendix) (objecting to 1998 redistricting plan by Tallapoosa County, Alabama, because "the history of the instant redistricting process and its results raise serious concerns that the county . . . purposely impaired the ability of black voters to elect a candidate of choice"); id. at 412 (objecting to Greensboro, Alabama's 1993 redistricting plan on the ground that "the opportunity for black voters to elect a representative of their choice . . . appears to have been constrained deliberately"); id. at 1410 (objecting to Mississippi's 1991 statewide legislative redistricting plan where it appeared "that the proposed plan is calculated not to provide black voters in the Delta with the equal opportunity for representation required by the Voting Rights Act"); id. at 830 (objecting to 2000 redistricting plan for Webster County, Georgia's board of education, where the plan was created shortly after the county had elected its first majority-black board, and the county's proffered reasons for the plan appeared to be "merely pretexts for intentionally decreasing the opportunity of minority voters to participate in the electoral process"); id. at 1611 (objecting to 1997 redistricting plan by Grenada, Mississippi, based on "substantial direct and circumstantial evidence of discriminatory purpose"); id. at 1516 (refusing to withdraw objection to Greenville, Mississippi's 1991 redistricting plan, which "appeared to have been motivated by a desire on the part of white city councilmembers to retain white control of the city's governing body," and explaining that since the plan's proposal, "white city officials [have] continue[d] to engage in race-based decisionmaking and to design schemes the purpose of which is to avoid black control of city government").
The Justice Department's intent-based objections over the last few decades have not been
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limited to redistricting plans. On several occasions, the Justice Department has suspected that discriminatory purpose was a motivating factor in a covered jurisdiction's change of a polling location. In 1992, for example, the Justice Department objected to Johnson County, Georgia's decision to move a polling place from the county courthouse to the American Legion. In its objection letter, the Justice Department noted that the American Legion had "a wide-spread reputation as an all-white club with a history of refusing membership to black applicants" and that "the American Legion hall, itself, is used for functions to which only whites are welcome to attend." Id. at 727. Given its reputation and history, the American Legion created an obviously "hostile and intimidating" atmosphere for black voters, and had "the effect of discouraging black voters from turning out to vote." Id. Because Johnson County failed to meet its burden of proving that its relocation of the polling place had neither a discriminatory purpose nor effect, the Justice Department denied preclearance to the proposed change. See id.; see also 2 History, Scope, & Purpose 2428 (Schlozman Appendix) (objecting to 1994 polling place change by Marion County, Texas, where the change "appear[ed] to be designed, in part, to thwart recent black political participation"); id. at 2579 (objecting to 1999 polling place change by Dinwiddie County, Virginia, in part because "the sequence of events leading up to the decision to change the polling place . . . tends to show a discriminatory purpose"); id. at 2302 (objecting to 1991 polling place change proposed by district in Lubbock County, Texas, where polling "site selections . . . would seem calculated to discourage turnout among minority voters").
So, too, has the Justice Department denied preclearance to jurisdictions' proposed changes to their methods of election where there has been reason to believe that the changes were racially inspired. For instance, the Justice Department objected to Bladen County, North
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Carolina's 1987 attempt to change its method of election for its board of county commissioners from at-large elections to three double-member and one at-large district. Although the Justice Department found that the change would not have a retrogressive effect, it nonetheless denied preclearance to the change based on its inability to conclude "that the proposed election system is free from discriminatory purpose." Id. at 1761. According to the Justice Department, the evidence presented by the county demonstrated that "the responsible public officials [had] desired to adopt a plan which would maintain white political control to the maximum extent possible and thereby minimize the opportunity for effective political participation by black citizens." Id. at 1762. Indeed, the Justice Department explained, "it appears that the board undertook extraordinary measures to adopt an election plan which minimizes minority voting strength." Id. A similar intent-based objection was interposed in response to Wilson County, North Carolina's 1986 change to its system for electing county commissioners, in light of the Justice Department's determination that the county's method of election had been purposefully "designed and intended to limit the number of commissioners black voters would be able to elect." Id. at 1731.
The legislative record also contains examples of objection letters issued in response to jurisdictions' proposed annexations, in which the Justice Department has denied preclearance based on its inability to conclude that the annexation was free from discriminatory animus. In 1990, for example, the Justice Department objected to the decision by Monroe, Louisiana, to annex certain wards for the Monroe City Court, explaining that the annexations would have reduced the black percentage of the City Court's jurisdiction from 48.4% to 39.2%. 1 History, Scope, & Purpose 927 (Schlozman Appendix). The Justice Department also expressed concern
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regarding the timing of the annexations, noting that one of the annexed wards "had been eligible to be added to the City Court jurisdiction since at least 1970," but that there had been "little or no interest in implementing this change until immediately prior to the 1984 City Court primary election, which we understand was marked by the presence of the first black candidate for the City Court." See 1 History, Scope, & Purpose 927-28 (Schlozman Appendix); see also H.R. Rep. No. 109-478, at 23. Similarly, the Justice Department in 1997 objected to the annexations proposed by the city of Webster, Texas, where "the city's annexation choices appear[ed] to have been tainted, if only in part, by an invidious racial purpose." 2 History, Scope, & Purpose 2492 (Schlozman Appendix).
Given these and the many other intent-based objections in the 15,000-page legislative record, the House Committee on the Judiciary had good reason to conclude in 2006 that Section 5 was still fulfilling its intended function of preventing covered jurisdictions from implementing voting changes "intentionally developed to keep minority voters and candidates from succeeding in the political process." H.R. Rep. No. 109-478, at 36.
4. More Information Requests In reauthorizing Section 5 in 2006, Congress did not rely only on objection letters to evaluate the continued existence of voting discrimination by covered jurisdictions; it relied as well on so-called "more information requests" ("MIRs") by the Attorney General. See H.R. Rep. No. 109-478, at 40; 2006 Amendments § 2(b)(4)(A), 120 Stat. at 577. An MIR is a formal letter issued in response to a preclearance submission when the submission contains insufficient information for the Attorney General to determine whether the proposed voting change violates Section 5. See H.R. Rep. No. 109-478, at 40. When a covered jurisdiction receives an MIR, it
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can either (1) supply the requested information; (2) withdraw the proposed voting change; (3) submit a new proposed change that supersedes the prior change; or (4) choose not to respond. Id.; see also 2 Voting Rights Act: Evidence of Continued Need, Hearing Before the Subcomm. on the Constitution of the H. Comm. on the Judiciary, 109th Cong. 2545 (Mar. 8, 2006) (hereinafter, "2 Evidence of Continued Need") (Luis Ricardo Fraga & Maria Lizet Ocampo, The Deterrent Effect of Section 5 of the Voting Rights Act: The Role of More Information Requests) (hereinafter, "Fraga & Ocampo Study"). In its 2006 examination of MIRs, the House Committee on the Judiciary found that "[t]he actions taken by a jurisdiction [in response to an MIR] are often illustrative of a jurisdiction's motives." H.R. Rep. No. 109-478, at 40. In particular, a covered jurisdiction's decision to withdraw its proposed change, submit a superseding change, or not respond to an MIR frequently constitutes a "tacit admission" that its originally-proposed change was, in fact, discriminatory. See 1 Evidence of Continued Need 178 (Nat'l Comm'n Report).
It is significant, then, that between 1982 and 2003, at least 205 proposed voting changes were withdrawn by covered jurisdictions after receipt of an MIR. Id.; see also H.R. Rep. No. 109-478, at 41. According to one study in the legislative record, MIRs resulted in a total of 855 withdrawals, superseding changes, and "no responses" by covered jurisdictions from 1990 through 2005. See 2 Evidence of Continued Need 2553 (Fraga & Ocampo Study). To be sure, not all of these withdrawals, superseding changes, or "no responses" represent concessions on the part of the covered jurisdiction that its initially-proposed voting change had an impermissible discriminatory purpose or effect. It is plausible that covered jurisdictions choose to withdraw their proposed electoral changes or not respond to MIRs for other reasons -- for example, because "responding is more costly than not implementing the change." See, e.g., Continuing Need 113
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(Pildes Responses). But Shelby County is wrong to characterize voluntary withdrawals or "no responses" to MIRs as showing only that "bureaucratic hurdles to preclearance erected by DOJ have deterred covered jurisdictions from making nondiscriminatory voting changes." See Pl.'s Mot. at 46. Although it is unlikely that all withdrawals, superseding changes, and "no responses" represent successfully-thwarted attempts by covered jurisdictions to implement purposefully discriminatory voting changes, Congress found that, together "[t]he increased number of objections, revised submissions, and withdrawals over the last 25 years are strong indices of continued efforts to discriminate." H.R. Rep. No. 109-478, at 36; see also Continuing Need 11213 (Pildes Responses) (explaining the need for "more qualitative information on the reasons jurisdictions respond as they do [to MIRs] to know what percentage of these responses in fact do signal changes that would have violated the VRA," but recognizing the likelihood that at least "some of these non-responses reflect the fact that the jurisdiction's proposed change would have violated the VRA").
5. Judicial Preclearance Suits Even more probative of the continued existence of voting discrimination than withdrawals or "no responses" to MIRs, however, are the lawsuits in which a three-judge court has denied preclearance to a covered jurisdiction's proposed voting change. As previously explained, a covered jurisdiction may seek a declaratory judgment from a three-judge panel of this Court that its proposed voting change has neither a discriminatory purpose nor effect instead of submitting its change to the Attorney General for preclearance. See, e.g., Nw. Austin II, 129 S. Ct. at 2509; 42 U.S.C. § 1973c. Although most jurisdictions choose the latter route, some have filed declaratory judgment actions seeking approval of their proposed voting changes since
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the passage of the Voting Rights Act in 1965. See Nw. Austin I, 573 F. Supp. 2d at 255. Fortytwo of these declaratory judgment actions have been unsuccessful -- meaning that the three-judge court either denied preclearance to the proposed change, the jurisdiction withdrew the change, the case was dismissed, or a consent decree that cured the problem was reached. See 1 Evidence of Continued Need 177, 235 (Nat'l Comm'n Report). Of these 42 unsuccessful declaratory judgment actions, 25 occurred after 1982. Id. at 178, 270.
Most importantly, as the three-judge court in Nw. Austin I pointed out, "the legislative record contains several examples of judicial decisions denying preclearance that reveal evidence of intentional discrimination." 573 F. Supp. 2d at 255. In one particularly egregious example, which occurred shortly before the 1982 reauthorization of Section 5, a three-judge panel of this Court denied preclearance to Georgia's proposed 1981 congressional redistricting plan based on its finding that the plan had a discriminatory purpose under Section 5. See 1 Evidence of Continued Need 503-508 (ACLU Report); Busbee, 549 F. Supp. at 517. Georgia began its congressional redistricting process after the 1980 census showed that the state's ten existing districts -- all of which were majority-white with the exception of the Fifth District -- had become severely malapportioned. Under the leadership of Joe Mack Wilson, Chair of the state's House Reapportionment Committee, Georgia created a redistricting plan that maintained its nine majority-white districts, and split the large, contiguous black population of the Atlanta metropolitan area between the Fourth and Fifth Districts, thereby ensuring that blacks would still comprise a majority of the Fifth District, but would only constitute 46% of the registered voters there. See Busbee, 549 F. Supp. at 498-99. Because Georgia's plan increased the percentage of blacks in the Fifth District, however, it was not retrogressive, and therefore "technically . . . [did]
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not have a discriminatory effect, as that term has been construed under the Voting Rights Act." Id. at 516-17.
The three-judge court nonetheless denied preclearance to the plan based on its conclusion that the plan had been "the product of purposeful racial discrimination." See id. at 517-18. In reaching this determination, the court made an express finding that "Representative Joe Mack Wilson is a racist." Id. at 500. The court cited Wilson's now-infamous statement that he did not want to draw "nigger districts," id. at 501, as well as testimony from other Georgia legislators, who conceded that they, too, had intentionally sought to "keep the Fifth District 'as white as possible . . . but just within the limits . . . to satisfy the Voting Rights Act . . . .'" Id. (internal citation omitted). As one state legislator explained, "'the motivation of the House leadership' in creating the Fifth District . . . was to 'increase [the percentage of the black population] just enough to say they had increased it [and] so that it would look like they had increased it, but they knew they had not increased it enough to elect a black." Id. (internal citation omitted). Another state senator admitted that he had felt obliged to vote for the plan because he "'[didn't] want to have to go home and explain why I . . . was the leader in getting a black elected to the United States Congress.'" Id. at 514 (internal citation omitted). These "[o]vert racial statements," together with Georgia's history of racial discrimination in voting, and the absence of any legitimate non-racial reasons for the redistricting plan, convinced the three-judge court that the plan had been enacted with a discriminatory purpose, and hence had "'no legitimacy at all under our Constitution or under (Section 5).'" Id. at 517 (alteration in original) (quoting City of Richmond v. United States, 422 U.S. 358, 378-79 (1975)).
In another, more recent declaratory judgment action, the Louisiana House of
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Representatives sought preclearance for its 2001 statewide redistricting plan, which eliminated a majority-black district in Orleans Parish, and failed to create a comparable district anywhere else in the state. See Def.'s Mot. at 37; Nw. Austin I, 573 F. Supp. 2d at 256; Continuing Need 28 (Arrington Responses); Introduction to Expiring Provisions 152 (Shaw Responses); Reauthorization of the Act's Temporary Provisions: Policy Perspectives and Views from the Field, Hearing Before the Subcomm. on the Constitution, Civil Rights and Property Rights of the S. Comm. on the Judiciary, 109th Cong. 42-44 (June 21, 2006) (hereinafter, "Policy Perspectives") (responses of Debo Adegbile to questions submitted by Senators Kennedy, Leahy, Cornyn, and Coburn) (hereinafter, "Adegbile Responses"). In the course of defending their plan, Louisiana officials admitted that they had intentionally "'obliterated'" the majority-black district in order to achieve what they characterized as "proportional" representation for white voters in Orleans Parish. See Def.'s Br. in Supp. of Mot. for Summ. J., La. House of Reps. v. Ashcroft, Civ. A. No. 02-62 (D.D.C. Jan. 17, 2003); see also Policy Perspectives 43 (Adegbile Responses). But in selectively applying the theory of "proportional representation" to advantage only white voters in a particular area of the state, Louisiana officials ignored the fact that it was the black population in Orleans Parish, not the white population, that had increased during the preceding decade. See Continuing Need 28 (Arrington Responses). Moreover, the state made no attempt to remedy blacks' statewide under-representation in proportion to their percentage of the population, despite its avowed desire to achieve proportional representation for white voters in a particular area of the state. See Def.'s Br. in Supp. of Mot. for Summ. J., La. House of Reps. v. Ashcroft, Civ. A. No. 02-62 (D.D.C. Jan. 17, 2003); Policy Perspectives 43 (Adegbile Responses); Nw. Austin I, 573 F. Supp. 2d at 256. Although the suit ultimately settled on the
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eve of trial when Louisiana agreed to restore the majority-black district, it nonetheless constitutes a recent example of a covered jurisdiction's thwarted attempt to enact a voting change with the express purpose of diminishing black electoral opportunity. See Policy Perspectives 43 (Adegbile Responses); Introduction to Expiring Provisions 152 (Shaw Responses). The case also illustrates the need to look beyond preclearance-related data in assessing the continued prevalence of intentional voting discrimination by covered jurisdictions, as the suit's eventual resolution through a settlement agreement means that "there is no firm objection statistic or declaratory judgment ruling that resulted from the litigation." Introduction to Expiring Provisions 152 (Shaw Responses).
6. Section 5 Enforcement Suits Yet another type of evidence that Congress relied on as illustrative of the continued existence of voting discrimination by covered jurisdictions was section 5 enforcement actions undertaken by the Justice Department in covered jurisdictions since 1982. See 2006 Amendments § 2(b)(4)(A), 120 Stat. at 577. The Voting Rights Act authorizes the Justice Department -- as well as private citizens -- to bring suit under Section 5 to compel a covered jurisdiction to submit its proposed voting change for preclearance. See Nw. Austin I, 573 F. Supp. 2d at 256. Since 1982, there have been at least 105 successful Section 5 enforcement actions in which a covered jurisdiction has either been ordered to submit its proposed voting change for preclearance, or has voluntarily agreed to do so after a Section 5 enforcement suit was filed. See 1 Evidence of Continued Need 186 (Nat'l Comm'n Report). Based on its review of these cases, the House Committee on the Judiciary found that the failure by covered jurisdictions to submit voting changes for preclearance under Section 5 often reflects more than a mere
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oversight. "[C]overed jurisdictions continue to resist submitting voting changes for preclearance," the Committee noted in its 2006 report, explaining that "many defiant covered jurisdictions and State and local officials continue to enact and enforce changes without the Federal Government's knowledge." See H.R. Rep. No. 109-478, at 41.
Historically, the most "defiant" of all the covered jurisdictions has been South Dakota, where former South Dakota Attorney General William Janklow notoriously described the preclearance requirement as "a facial absurdity" and advised against compliance, remarking, "I see no need to proceed with undue speed to subject our State laws to a 'one-man' veto by the United States Attorney General." Id. at 42. In accordance with Janklow's advice, South Dakota sought preclearance for less than five of the more than 600 voting changes that it enacted between 1976 and 2002. Id. Many of these voting changes "negatively impacted" the state's Native American population, some of whom eventually filed an enforcement action to compel the state to submit its voting changes for preclearance. Id. The suit resulted in a consent decree, under which South Dakota finally agreed to fulfill its obligations under Section 5. Id.
The legislative record contains many examples of Section 5 enforcement suits initiated in response to covered jurisdictions' implementation of voting changes without preclearance, including several examples of suits in which the unprecleared voting changes appeared to have been motivated by discriminatory animus. For instance, a Section 5 enforcement action was filed in response to Prairie View, Texas's attempt to reduce the availability of early voting during its racially-charged 2004 elections in Waller County. After two black students from historically black Prairie View A&M University announced their intent to run for local office (one for the Waller County Commissioners' Court, the county's governing body), the white district attorney
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threatened to prosecute all Prairie View A&M students who voted in the elections, claiming that the students were not legal residents of the county. See 1 Evidence of Continued Need 185 (Nat'l Comm'n Report); id. at 300 (Highlights of Hearings of the Nat'l Comm'n on the Voting Rights Act) (hereinafter, "Nat'l Comm'n Hearing Highlights"). Shortly thereafter, the county sought to reduce the availability of early voting at the polling places that were located closest to the Prairie View A&M campus. This reduction in early voting opportunities would have made it much more difficult for students to vote in the election's primary, because it was scheduled to take place during the university's spring break, and students therefore had to vote in advance if they planned to be out of town during their vacation. 1 Evidence of Continued Need 186 (Nat'l Comm'n Report). The university chapter of the NAACP filed suit under Section 5, seeking to enjoin Waller County from making this change to its voting practices without first receiving preclearance, which prompted the county to agree to restore the early voting opportunities that had previously been in place. Id. As a result, five times as many Prairie View A&M students were able to vote in the primary, in which the African-American student seeking election to the County Commissioners' Court won a narrow victory. Id.
Another Section 5 enforcement suit was brought in 1995 when Mississippi sought to revive its dual voter registration system, which had originally been enacted "as part of the 'Mississippi Plan' to deny blacks the right to vote following the Constitutional Convention of 1890." Operation Push v. Allain, 674 F. Supp. 1245, 1251 (N.D. Miss. 1987), aff'd sub nom., Operation Push v. Mabus, 932 F.2d 400 (5th Cir. 1991); see also S. Rep. No. 109-295, at 223; 1 Evidence of Continued Need 176 (Nat'l Comm'n Report); H.R. Rep. No. 109-478, at 39. In 1987, a federal district court invalidated a revised version of Mississippi's dual registration
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system that the state had adopted in 1984, based on evidence that the revised system, like the original one, "result[ed] in a denial or abridgment of the right of black citizens in Mississippi to vote and participate in the electoral process." Operation Push, 674 F. Supp. at 1253. Nevertheless, Mississippi proceeded to implement yet another dual registration system in 1995, purportedly in an attempt to comply with the requirements of the National Voter Registration Act ("NVRA") of 1993. See H.R. Rep. No. 109-478, at 39. State officials "refused to submit the change for preclearance" despite the fact that Mississippi's "maintenance of two registration systems had previously been struck down as discriminatory." Id.
Private plaintiffs responded with a Section 5 enforcement action, as did the United States, and the two cases were consolidated before a three-judge court. See Young v. Fordice, 520 U.S. 273, 280 (1997). The case eventually reached the Supreme Court, which unanimously held that Mississippi was required to submit its dual registration system for preclearance. Id. at 291. Once compelled to seek preclearance, Mississippi received an objection, based on the Attorney General's inability to find that "the State's submitted NVRA procedures are not tainted by improper racial considerations." Preclearance Standards 83 (appendix to statement of Brenda Wright). As the Attorney General explained, the state's decision "to implement the requirements of the NVRA in a manner that would cause the State to revert to a form of dual registration" was "particularly noteworthy," given that "it occurred only a few years after a federal court had found that a similar requirement had led to pronounced discriminatory effects on black voters." Id.
Of course, the reasons behind a failure to seek preclearance under Section 5 are not always easy to discern. And there is no data in the legislative record revealing the percentage of successful Section 5 enforcement actions that have ultimately resulted in a denial of preclearance
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on the basis of discriminatory intent. But as demonstrated by Mississippi's 1995 attempt to revive its dual registration system, at least some of the 105 successful Section 5 enforcement suits since 1982 have been initiated in response to covered jurisdictions' voting changes that were subsequently found to be purposefully discriminatory.
7. Section 2 Litigation Section 2 of the Voting Rights Act prohibits the imposition of any voting practice or procedure "in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color." 42 U.S.C. § 1973. Although a violation of Section 2 does not require a showing of unconstitutional discriminatory intent, "Section 2 cases have documented evidence that reveals a wide range of unconstitutional conduct by state and local officials." See Impact and Effectiveness 971 (Katz Study). Based on its review of several studies of Section 2 cases in the legislative record, the Senate Judiciary Committee identified six reported Section 2 cases that resulted in either a judicial decision or a consent decree reflecting that a covered jurisdiction had unconstitutionally discriminated against minority voters. See S. Rep. No. 109-295, at 13, 65. A study conducted by Professor Ellen Katz and the Voting Rights Initiative of the University of Michigan Law School identified an additional eight published Section 2 cases since 1982 in which a court determined that a covered jurisdiction had engaged in intentional discrimination against minority voters. See Impact and Effectiveness 986-91 (Katz Study); see also Nw. Austin I, 573 F. Supp. 2d at 258. Hence, as the three-judge court in Nw. Austin I explained, Congress "knew of a combined total of fourteen judicial findings of intentionally discriminatory or unconstitutional state action" by covered jurisdictions since 1982 when it chose to reauthorize Section 5 in 2006. 573 F. Supp. 2d at 258.
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The Nw. Austin I court recognized that 14 "is not a great number of cases," especially when compared to the 421 intent-based objection letters lodged by the Attorney General during this time-frame. See id. But the court offered two explanations for the "relative scarcity" of judicial findings of intentionally discriminatory or unconstitutional conduct by covered jurisdictions. First, given Section 5's effectiveness in deterring covered jurisdictions from enacting discriminatory voting changes in the first place, it is understandable that there would not be many Section 2 cases challenging such practices. In other words, because most intentionally discriminatory voting practices are blocked by Section 5 prior to their implementation, they are unlikely to be the subject of a subsequent Section 2 challenge. See id. (citing Introduction to Expiring Provisions (Shaw Responses 160)); see also Continuing Need 143 n.18 (Earls Responses). Second, both the Senate Judiciary Committee and Professor Katz's study examined only reported Section 2 cases. Yet as Professor Katz acknowledged, "[t]hese lawsuits, of course, represent only a portion of the Section 2 claims filed or decided since 1982," given the high number of Section 2 cases that settle or are resolved without a published opinion. See Impact and Effectiveness 974 (Katz Study); see also Continuing Need 143 (Earls Responses). Indeed, according to one witness who testified before the Senate Judiciary Committee, there have been 66 reported cases of Section 2 violations since 1982 in the nine states that are "substantially covered" by Section 5, but there have been 587 unreported cases documenting such violations -i.e., more than eight times as many unreported cases than reported cases revealing Section 2 violations by covered jurisdictions. See Continuing Need 143 (Earls Responses). It is to be expected, then, that an analysis of intentional or unconstitutional discrimination based solely on reported Section 2 cases would "seriously understate[] the findings." Id.
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Finally, it is significant to recall that courts will avoid deciding constitutional questions if a case can be resolved on narrower, statutory grounds. See, e.g., Nw. Austin II, 129 S. Ct. at 2508. Courts therefore tend to refrain from finding that a jurisdiction engaged in unconstitutional voting discrimination if there is another basis upon which to invalidate the jurisdiction's challenged voting practice -- e.g., if the voting practice is found to violate the Section 2 "results" test. See Continuing Need 143-44, 144 n.19 (Earls Responses); see also Escambia Cnty. v. McMillan, 466 U.S. 48, 51 (1984) (declining to decide whether evidence of discriminatory intent was adequate to support finding that at-large system of elections violated the Fourteenth Amendment, given the lower court's conclusion that the system also violated Section 2); White v. Alabama, 74 F.3d 1058, 1071 n.42 (11th Cir. 1996) (explaining that "[b]ecause we dispose of the district court's judgment on the ground that it violates the Voting Rights Act, we need not, and indeed, should not, discuss whether the judgment violates the Equal Protection Clause"); United States v. Charleston Cnty., 316 F. Supp. 2d 268, 306-07 (D.S.C. 2003), aff'd, 365 F.3d 341 (4th Cir. 2004) (acknowledging that "the General Assembly's adoption of the at-large system raises suspicions," but refusing to "disparage" those who enacted the system by finding a constitutional violation absent more "compelling evidence" of discriminatory intent, and instead, enjoining the at-large system as a violation of Section 2). As Professor Pamela Karlan explained during her 2006 testimony before the Senate Judiciary Committee, "when courts decide cases on [Section 2] effects test reasons, they don't reach the question whether there is also a discriminatory purpose. But let me tell you from my own experience that if we had to show discriminatory purpose in lots of these cases, we could do it." Continuing Need 6 (statement of Pamela S. Karlan). As a result, many instances of unconstitutional voting
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discrimination likely escape formal judicial condemnation. Still, there have been at least 14 reported Section 2 cases involving judicial findings of
intentional or unconstitutional voting discrimination by covered jurisdictions since 1982. See Nw. Austin I, 573 F. Supp. 2d at 258. Because the three-judge court in Nw. Austin I described most of these Section 2 decisions in great detail, see 573 F. Supp. 2d at 259-62, this Court will not endeavor to repeat the facts of all those cases here. But since Section 2 cases do offer very "powerful evidence of continuing intentional discrimination," id. at 259, a few such cases warrant mention, one of which was not addressed by Nw. Austin I.
In 2003, a federal district court assessing a Section 2 challenge to Charleston County, South Carolina's at-large method of elections for its County Council declined to find that the system had been adopted with an unconstitutional discriminatory purpose, but nonetheless enjoined the system as a violation of Section 2. See Charleston Cnty., 316 F. Supp. 2d at 306. In so doing, the court noted that county officials had engaged in many other forms of purposeful voting discrimination in recent years. See id. at 290 n.23; see also Impact and Effectiveness 98788 (Katz Study). The court described the persistent problem of white poll officials "intimidating and harassing" black voters in need of assistance at the polls, and quoted one member of the Charleston County Election Commission, who said that she had "received complaints from African-American voters concerning rude or inappropriate behavior by white poll officials in every election between 1992 and 2002." See id. at 287 n.23. At one point, the official harassment of elderly black voters at the polls became so egregious that it "prompted a Charleston County Circuit Court to issue a restraining order against the Election Commission requiring its agents to cease interfering with the voting process." Id. at 288 n.23.
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The court in Charleston Cnty. also noted two "recent episodes" of racial discrimination in voting that it found particularly troubling. In the first, which occurred in 1991, the Charleston County Council decided to "reduce[] the salary for the Charleston County Probate Judge . . . following the election of the first and only African-American person elected to that position." Id. at 289 n.23. That same judge had been forced to sue to have his election upheld by the South Carolina Supreme Court, and even after the court affirmed the validity of the election, the judge had to seek Justice Department intervention in order to be sworn into office. Id. at 289-90 n.23. The second episode occurred after the 2000 Charleston County School Board elections, in which African-Americans won a majority of the seats on the board for the first time in the county's history. The county immediately responded by sponsoring "several pieces of legislation to alter the method of election for the school board." Id. at 290 n.23. None of the five African-American members of the board were consulted regarding their views on the change to the board's method of election, id., and every African-American member of the legislative delegation voted against the proposed change, S. Rep. No. 109-295, at 309. It later became apparent that the change would have the effect of making the school board's method of election "an exact replica of the old County Council structure" that the court in Charleston Cnty. had struck down as a violation of Section 2. See Continuing Need 27-28 (Arrington Responses); see also S. Rep. No. 109-295, at 309. This method of election was subsequently denied preclearance by the Attorney General. Continuing Need 28 (Arrington Responses).
In a Section 2 case not discussed by the three-judge court in Nw. Austin I, Native American residents of South Dakota challenged the state's 2001 legislative redistricting plan as diluting Native American voting strength in violation of Section 2. See Bone Shirt v. Hazeltine,
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336 F. Supp. 2d 976 (D.S.D. 2004); see also Impact and Effectiveness 988-89 (Katz Study). In assessing the plaintiffs' Section 2 challenge, the court described several recent instances of intentional state-sponsored voting discrimination against Native Americans in South Dakota. See Bone Shirt, 336 F. Supp. 2d at 1023-26. For example, in 2002 the state passed a law requiring photo identification as a prerequisite to voting. When concerns were raised about the effect of the law on the state's Native American population, one state legislator responded: "I'm not sure we want that sort of person in the polling place." Id. at 1026 (internal quotation marks and citation omitted). Another legislator conceded that the measure had been passed as a means of "retaliating" against the recent rise in registration among Native American voters, after the Native American vote had proven particularly significant in a close senate race. Id. The court also described a 2003 challenge to a redistricting plan by Buffalo County, South Dakota, which had "confined virtually all of the county's Indian population to a single district containing approximately 1500 people." Id. at 1024. When members of the Crow Creek Sioux Tribe brought suit, alleging that the plan had been "drawn and maintained for a discriminatory purpose," the parties reached a settlement agreement, "with the county admitting that the plan was discriminatory." Id. The court in Bone Shirt went on to list many other reports of intentional voting discrimination against Native Americans in South Dakota, including cases in which local poll officials "refused to register Indians," or "refused to provide them with enough voter registration cards to conduct a voter registration drive." Id.
The legislative record describes several other Section 2 cases since 1982 that contain judicial findings of purposeful voting discrimination by covered jurisdictions. See Impact and Effectiveness 975-76, 987-94 (Katz Study). Two such cases from Shelby County's home state of
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Alabama warrant specific mention. Following the Dillard litigation, see supra pp. 29-30, in which Alabama residents challenged the at-large electoral systems used by many cities, counties, and school boards throughout the state (including in Shelby County), the town of North Johns admitted that its at-large system for electing commissioners violated Section 2 and entered into a consent decree, under which it agreed to implement a new electoral system with five singlemember districts. See Dillard v. Town of North Johns, 717 F. Supp. 1471, 1473 (M.D. Ala. 1989). When two African-American candidates for office sought "to take advantage of the new court-ordered single-member districting plan," id. at 1476, the mayor refused to provide them with the necessary financial disclosure forms that he had provided to all of the other candidates, and that all candidates were required to complete in order to run for office under state law. Id. at 1474-76; Impact and Effectiveness 990 (Katz Study). The two African-American candidates nonetheless remained on the ballot without completing the forms, and proceeded to win their respective elections, whereupon the mayor refused to swear them into office. North Johns, 717 F. Supp. at 1475. The candidates then filed suit under Section 2, alleging purposeful discrimination and seeking a court order certifying them as duly-elected members of the town council. Id. at 1476. Granting this request, the federal district court found "that North Johns, through its mayor, intentionally discriminated against [the candidates] because of their race." Id. The court explained that the election of the two candidates would have resulted in a majorityblack town council, and that the mayor had "acted as he did in order to prevent this result, or at least not to aid in achieving it." Id. The court was "convinced that, but for [the candidates'] race, [the mayor] would have acted toward them as he acted toward other candidates; he would have provided to them, in a timely manner, the [necessary] information and forms." Id.
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Similarly, a federal district court in Harris v. Siegelman, 695 F. Supp. 517 (M.D. Ala.
1988), found that intentional discrimination persisted in Alabama as late as the 1980s. In
assessing a Section 2 class action filed by black residents of the state, who alleged that the
manner in which poll officials had been appointed violated Section 2, the court described how
Alabama's "history of racial inhumanity continues into today." 695 F. Supp. at 525. Specifically,
the court found that "white poll officials continue to harass and intimidate black voters," and it
went on to cite "numerous instances" in which "white poll officials refused to help illiterate black
voters or refused to allow them to vote, where they refused to allow black voters to cast
challenged ballots, and where they were simply rude and even intimidating toward black voters."
Id. Although acknowledging that these occurrences are "much less frequent today than in the
past," the court found that "their impact is still dramatic and widespread in the black community
in light of this state's not-so-distant history of open and violent discrimination." Id.
8. Dispatch of Federal Observers
Additional evidence of intentional state-sponsored discrimination against minority voters
is revealed by the continued dispatch of federal observers to covered jurisdictions. Under
Section 8, the Attorney General may send federal observers to monitor any state or local elections when "necessary to enforce the guarantees of the 14th or 15th amendment."13 See 42 U.S.C. §
13 Under the original version of the Act, federal observers could only be sent to monitor elections in jurisdictions for which "federal examiners" had been appointed. See 1965 Act § 8. Federal examiners "in the early days of the Act were empowered to help register minority voters," 1 Evidence of Continued Need 179, and could be dispatched either to jurisdictions that were covered by Section 4(b), or to non-covered jurisdictions that were subject to coverage by federal court order, see 1965 Act §§ 3(a), 6. When Congress reauthorized the Act's temporary provisions in 2006, it repealed the sections of the Act pertaining to federal examiners, and amended Section 3(a) of the Act to authorize the direct assignment of federal observers to noncovered jurisdictions where "appropriate to enforce the voting guarantees of the fourteenth or
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1973f(a)(2). Between 1982 and 2006, 300 to 600 federal observers were assigned annually to observe elections in covered jurisdictions. See H.R. Rep. No. 109-478, at 44; S. Rep. No. 109295, at 96. Five of the six states originally covered by Section 5 -- Louisiana, Georgia, Alabama, South Carolina, and Mississippi -- accounted for 66% of the 622 total federal observer coverages14 during this time-frame, 1 Evidence of Continued Need 181 (Nat'l Comm'n Report), with Mississippi alone accounting for 40% of all such coverages, H.R. Rep. No. 109-475, at 44. In reauthorizing Section 5 in 2006, Congress cited the "tens of thousands of Federal observers that have been dispatched to observe elections in covered jurisdictions" during the past 25 years as evidence of "the continued need for [the] Federal oversight" provided by the temporary provisions of the Voting Rights Act. See 2006 Amendments § 2(b)(5), 120 Stat. at 578.
Shelby County attempts to minimize the significance of this evidence, however, by arguing that the dispatch of federal observers "indicates only that it was predicted that there might be conduct with the effect of disenfranchising minority citizens, which might or might not be purposeful discrimination." Pl.'s Mot. at 35. As a technical matter, Shelby County is correct. But observers are not assigned to a particular polling location based on sheer speculation; they are only dispatched if "there is a reasonable belief that minority citizens are at risk of being disenfranchised." H.R. Rep. No. 109-478, at 44 (emphasis added); see also 1 Evidence of Continued Need 180 (Nat'l Comm'n Report) (explaining that "observers are sent because there are reasonable grounds in the opinion of the Department of Justice to expect discrimination on
fifteenth amendment." 42 U.S.C. § 1973a(a); see also H.R. Rep. No. 109-478, at 91. 14 For purposes of this Opinion, each occasion when federal observers are dispatched to a
jurisdiction is referred to as one "observer coverage," although several individual observers may have been present.
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Election Day") (emphasis added). It may be that some of the 622 observer coverages since 1982 have ultimately proven unnecessary, but the legislative record reveals many instances of intentional voter discrimination at the polls, where the presence of federal observers has been needed to protect access to the ballot for racial and language minorities.
Congress heard testimony from Alabama state senator Bobby Singleton as to the importance of federal observers in preventing the intimidation of black voters at the polls in Alabama. See 1 Evidence of Continued Need 182 (Nat'l Comm'n Report). Singleton described one incident in 1992 in which he was taken to jail after attempting to prevent white poll officials from "closing the doors on African-American voters . . . whom they did not want to come in, [because] [they] . . . would have made a difference in the . . . votes on that particular day." Id. at 298 (Nat'l Comm'n Hearing Highlights). Barry Weinberg, former Deputy Chief of the Voting Section of the Civil Rights Division of the Justice Department, similarly described the harassment of black voters by white poll officials in Alabama, including one instance in which a local poll official remarked in the presence of a federal observer that "niggers don't have principle enough to vote and they shouldn't be allowed." See Voting Rights Act: Sections 6 and 8 – The Federal Examiner and Observer Program, Hearing Before the Subcomm. on the Constitution of the H. Comm. on the Judiciary, 109th Cong. 30 (Nov. 15, 2005) (prepared statement of Barry H. Weinberg). Weinberg also described various forms of discrimination faced by language minority voters at the polls, who have sometimes "been denied the ballot because they identified their street name according to common Spanish usage rather than the formal English name." Id. at 34. On other occasions, prospective Hispanic voters have been "admonished not to use Spanish when talking in the polling places," or have been asked to
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provide "on-the-spot evidence of their citizenship before being given a ballot," even though such evidence is not required from Caucasian voters. Id. The legislative record describes one such example of discrimination against Latinos in Arizona, in which men wearing "military or tool belts" and black T-shirts reading "U.S. Constitutional Enforcement" approached Latinos waiting in line to vote, demanding proof of citizenship. See 3 Voting Rights Act: Evidence of Continued Need, Hearing Before the Subcomm. on the Constitution of the H. Comm. on the Judiciary, 109th Cong. 3976 (Mar. 8, 2006) (hereinafter, "3 Evidence of Continued Need") (Arizona Report for the Nat'l Comm'n on the Voting Rights Act).
Congress heard evidence that in 1990, on the eve of an election marked by the presence of an African-American candidate for one of North Carolina's Senate seats, 125,000 AfricanAmerican voters in North Carolina received postcards falsely informing them that if they had moved within thirty days they could not vote. See 2 Evidence of Continued Need 1755 (appendix to statement of Wade Henderson). As recently as 2004, a sheriff in Alamance County, North Carolina, "took a list of registered voters in his county that had Spanish surnames, and said publicly that he would send deputies to the homes of each of those voters to verify that they were citizens." Continuing Need 18 (testimony of Anita S. Earls). That same year, there were reports of police being stationed outside polling sites in an "overwhelmingly Latino" area of Texas -- a more subtle, yet "familiar form of voter intimidation." See S. Rep. No. 109-295, at 344.
The record contains several other examples of state-sponsored discrimination against minority voters in Texas, including the 2004 closing of a polling place in a predominantly-black precinct, despite the fact that "voters remained in line" and the closing was "contrary to state law." Id. at 343. There were additional reports of minority voters "being turned away from their
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polling locations and asked to return at a later time" for no apparent reason. Id. And during the Southern Regional Hearing of the National Commission of the Voting Rights Act, Professor Vernon Burton testified that there had been "various kinds of intimidation and misinformation" directed at black voters in Texas during the 2000 and 2002 elections, as well as "late change[s] of polling places; dropping individuals from poll lists without cause; [and] not allowing individuals to file challenge ballots." See 1 Evidence of Continued Need 298 (Nat'l Comm'n Hearing Highlights). Professor Burton went on to describe a particularly disturbing incident in Wharton County, Texas, in which the home of a campaign staff treasurer for an African-American candidate for sheriff was burned. Id. As Professor Burton explained, the incident occurred shortly after the treasurer had received "'threatening calls saying what would happen to her if she did not get [the candidate's] – and we won't use the N word – sign out of her yard.'" Id.
9. Racially Polarized Voting and Vote Dilution Congress also relied on evidence of racially polarized voting in reauthorizing Section 5 in 2006, noting that the persistence of racially polarized voting "in each of the jurisdictions covered by the expiring provisions of the Voting Rights Act of 1965 demonstrates that racial and language minorities remain politically vulnerable, warranting the continued protections of the [Act]." See 2006 Amendments § 2(b)(3), 120 Stat. at 577. Racially polarized voting "occurs when voting blocs within the minority and white communities cast ballots along racial lines." H.R. Rep. No. 109-478, at 34. The House Committee on the Judiciary in 2006 found that the continued existence of racially polarized voting presented a "serious concern," id., for two reasons. First, racially polarized voting effectively creates an "election ceiling" for minority voters, as it renders them "powerless" to elect candidates of their choice in non-majority-minority
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districts. Id. Second, "[t]he potential for discrimination in environments characterized by racially polarized voting is great." Id. at 35. That is because, as the three-judge court in Nw. Austin I explained, racially polarized voting is "a necessary precondition for vote dilution to occur," since it is racially polarized voting that "enables the use of devices such as multi-member districts and at-large elections that dilute the voting strength of minority communities." See 573 F. Supp. 2d at 263 (internal quotation marks and citations omitted). In other words, where minorities and non-minorities tend to prefer different candidates, the ability of minorities to elect their candidates of choice can be intentionally reduced through the adoption of a wide variety of dilutive techniques, including the manipulation of district boundaries, the enactment of discriminatory annexations, and the implementation of majority-vote requirements. See 2 Evidence of Continued Need 1721 (appendix to statement of Wade Henderson).
Hence, Congress was concerned by the evidence in the legislative record indicating that "the degree of racially polarized voting in the South is increasing, not decreasing." 1 Evidence of Continued Need 215 (Nat'l Comm'n Report). Congress heard testimony that in Shelby County's home state of Alabama, there were 35 black representatives serving in the state legislature, only one of whom had been elected from a majority-white district. See Benefits and Costs 97 (Gray Responses). Evidence in the congressional record also revealed "high degree[s]" of racially polarized voting in South Carolina and Louisiana. See H.R. Rep. No. 109-478, at 35. As one expert on voting trends in Louisiana testified, "the racial differences in candidate preferences are pervasive across offices. It doesn't matter whether the office at issue is state Representative, state Senator, Governor, Mayor, District Attorney, or Public Service Commissioner. It could be for a position as Recorder of Mortgages or Register of Conveyances"; regardless of the nature of the
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elected position, "[r]acially polarized voting remains pronounced and pervasive in Louisiana." Voting Rights Act: The Continuing Need for Section 5, Hearing Before the Subcomm. on the Constitution of the H. Comm. on the Judiciary, 109th Cong 59 (Oct. 25, 2005) (hereinafter, "Continuing Need for Section 5") (prepared statement of Richard Engstrom).
A report in the legislative record on voting rights in Mississippi confirmed that racially polarized voting remained pronounced and pervasive there as well, with blacks in Mississippi "overwhelmingly tend[ing] to vote for blacks and whites almost unanimously vot[ing] for whites in most black versus white elections." See 2 Evidence of Continued Need 1721 (appendix to statement of Wade Henderson) (internal quotation marks omitted). Moreover, the report explained, "[n]o black candidate has won election to Congress or the state legislature from a majority-white district in Mississippi." Id. at 1722. And Mississippi is by no means unique among southern states in this respect. Another study in the legislative record found that during the 1980s and 1990s, "not a single black candidate won a majority-white district in the South." Benefits and Costs 69 (responses of Drew S. Days III to questions submitted by Senators Cornyn, Coburn, Kennedy, Leahy, and Schumer). According to the National Commission on the Voting Rights Act, only 8% of all black U.S. representatives in 2000 were elected from majority-white districts. 1 Evidence of Continued Need 159 (Nat'l Comm'n Report).
Shelby County objects to this Court's reliance on evidence of racially polarized voting in assessing the continued need for Section 5, arguing that racially polarized voting constitutes private conduct, not "governmental discrimination -- the only type of discrimination Congress is empowered to remedy under the Fifteenth Amendment." See Pl.'s Mot. at 31. But Shelby County fails to recognize the close link between racially polarized voting and intentional, state-
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sponsored minority vote dilution. It is only because of the continued existence of racially polarized voting that covered jurisdictions can structure their electoral processes so as to intentionally diminish the ability of minority voters to elect candidates of their choice. See Continuing Need for Section 5 59 (prepared statement of Richard Engstrom). Although the persistence of racially polarized voting -- in and of itself -- does not provide evidence of unconstitutional voting discrimination by covered jurisdictions and their officials, the persistence of measures that are intentionally designed to "dilute minority voting strength" does provide such evidence, and these measures can only be effective in areas that are marked by racially polarized voting.
Shelby County argues, however, that the Attorney General is incorrect to rely even on evidence of intentional minority vote dilution in justifying the 2006 reauthorization of Section 5, since "Section 5 enforces the Fifteenth Amendment" and "claims alleging purposeful vote dilution are cognizable under the Equal Protection Clause of the Fourteenth Amendment – not under the Fifteenth Amendment." See Pl.'s Reply at 47. The Supreme Court has never "explicitly decided[] that the Fifteenth Amendment applies to dilution claims." See Bossier II, 528 U.S. at 359 n.11 (Souter, J., concurring in part, dissenting in part); see also supra pp. 63-64. But the Court in City of Rome relied on evidence of minority vote dilution in upholding the constitutionality of the 1975 reauthorization of Section 5 as a valid exercise of Congress's Fifteenth Amendment enforcement authority. See 446 U.S. at 181 (quoting Congress's finding that "'[a]s registration and voting of minority citizens increases [sic], other measures may be resorted to which would dilute increasing minority voting strength'") (internal citation omitted). Regardless of whether intentional state-sponsored minority vote dilution violates the Fifteenth
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Amendment, then, Shelby County's argument that such evidence cannot be used to sustain the
2006 reauthorization of Section 5 is directly refuted by City of Rome.15
Shelby County's position on the irrelevance of intentional dilutive measures is also at
odds with the history and purpose of Section 5. According to Shelby County, the so-called
"second generation barriers" to voting that "do not interfere with the right to vote, but instead
limit the effectiveness of that vote," cannot be used to justify Section 5's constitutionality,
see Pl.'s Reply at 21, because Section 5 was intended to combat only those tactics that were
aimed at direct disenfranchisement, rather than indirect "dilutive mechanisms," id. at 48. But
Section 5 never had such a limited purpose. To the contrary, Congress specifically designed the
preclearance requirement in order to prohibit covered jurisdictions from implementing any and
all discriminatory voting changes, regardless of the form they might take. See, e.g., Continuing
Need 41 (Earls Responses) (explaining that "Section 5 was not intended merely to increase
minority registration rates, but rather to make sure that covered jurisdictions did not put in place .
15 In City of Rome, Justice Rehnquist, joined by Justice Stewart in dissent, voiced concerns as to the majority's reliance on evidence of vote dilution in justifying the 1975 reauthorization of Section 5, arguing that any "disparate impact associated with nondiscriminatory electoral changes . . . result[ing] from bloc voting" cannot establish "congressional power to devise an effective remedy for prior constitutional violations." Id. at 217 (Rehnquist, J., dissenting). But Justice Rehnquist's objection to the use of such evidence stemmed from the fact that, in City of Rome, the city had proven that its dilutive electoral changes were not purposefully discriminatory. Id. at 214. Justice Rehnquist went on to explain that where states seek "to prevent the participation of blacks in local government by measures other than outright denial of the franchise," Congress can "of course remedy and prevent such purposeful discrimination." Id. (emphasis added). Here, Shelby County has not proven -- nor even alleged -- that all instances of state-sponsored minority vote dilution in the legislative record are free from discriminatory animus. Hence, even under the more limited view of Congress's enforcement authority endorsed by Justice Rehnquist in City of Rome, the evidence of purposefully dilutive measures in the 2006 legislative record could provide valid grounds for the reauthorization of Section 5.
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. . a host of other practices that would negate or dilute the voting strength of newly enfranchised black voters."). Prior to the enactment of Section 5, covered jurisdictions were able to perpetuate minority disenfranchisement by adopting new, deceptive discriminatory techniques as soon as the old ones had been struck down. Although the primary focus of Section 5 in 1965 may have been those techniques that were being used to prevent blacks from entering polling places and casting ballots, "the preclearance requirement was not enacted to authorize covered jurisdictions to pour old poison into new bottles." See Bossier II, 528 U.S. at 366 (Souter, J., concurring in part, dissenting in part). It is for this reason that the Supreme Court in Allen held that Section 5 bars not only those voting changes that interfere with minorities' access to the ballot, but also those changes that interfere with the weight of the ballots cast. See Allen, 393 U.S. at 569 (recognizing that "[t]he right to vote can be affected by a dilution of voting power as well as by an absolute prohibition on casting a ballot"); see also Continuing Need 36 (Arrington Responses) (explaining that the Act has always been "about more than just the mere ability to cast a vote . . . The vote must be counted and must count").
Although Shelby County seeks to portray "second generation barriers" to voting as novel creations of the 1980s and 1990s, such dilutive measures have long been employed by covered jurisdictions as a means of intentionally discriminating against minority voters. See, e.g., Evidence of Continued Need 209 (explaining that vote dilution "consists of mechanisms employed by whites since the First Reconstruction in the nineteenth century"); Introduction to Expiring Provisions 206 (prepared statement of Chandler Davidson) (noting that dilutive tactics were "widely used in the Nineteenth Century when black males could vote" and "began to be used once more in the mid-Twentieth Century, particularly after the abolition of the white
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primary, as increasing numbers of blacks began to be able to exercise the franchise"). Indeed, Congress relied on evidence of these purposefully dilutive mechanisms in each of its previous reauthorizations of Section 5. See H.R. Rep. No. 109-478, at 36. In its 2006 report, the House Committee on the Judiciary specifically found that the voting changes being sought by covered jurisdictions -- which included "enacting discriminatory redistricting plans; switching offices from elected to appointed positions; relocating polling places; enacting discriminatory annexations and deannexations; setting numbered posts; and changing elections from single member districts to at-large voting and implementing majority vote requirements" -"resemble[d] those techniques and methods used in 1965, 1970, 1975, and 1982." Id. This Court sees no reason, then, why the continued existence of these dilutive techniques, as well as the continued existence of racially polarized voting -- a necessary precondition for such techniques to be effective -- cannot support the 2006 reauthorization of Section 5.
10. Section 5's Deterrent Effect Any assessment of the persistence of intentional voting discrimination by covered jurisdictions must also take into account "the number of voting changes that have never gone forward as a result of Section 5." See H.R. Rep. No. 109-478, at 24. In 2006, the House Committee on the Judiciary found that Section 5 has deterred covered jurisdictions "from even attempting to enact discriminatory voting changes," as covered jurisdictions "'tend to understand that submitting discriminatory changes is a waste of taxpayer time and money and interferes with their own timetables, because the chances are good that an objection will result.'" Id. (quoting 1 Evidence of Continued Need 177 (Nat'l Comm'n Report)). In light of Section 5's substantial deterrent effect, any evaluation of the continued existence of purposeful voting discrimination by
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covered jurisdictions cannot be based solely on the number of intent-based objections lodged by the Attorney General, or the number of lawsuits in which a three-judge court has denied preclearance to a covered jurisdiction's racially-motivated voting change. Rather, the assessment of the continued need for Section 5 must also account for those intentionally discriminatory voting changes that have been abandoned by covered jurisdictions prior to the formal preclearance process, simply as a result of Section 5's existence.
Congress in 2006 heard testimony from a number of voting rights practitioners and scholars as to how Section 5 has prevented the enactment of discriminatory voting changes "'under the radar screen [in ways] that may not appear easily in statistics.'" See Nw. Austin I, 573 F. Supp. 2d at 264 (quoting Introduction to Expiring Provisions 17 (testimony of Theodore Shaw)). As one civil rights lawyer in Alabama testified, "Section 5 provides a powerful deterrent . . . and based on my experience, I strongly believe that the continued Section 5 coverage in Alabama is not only necessary but it is imperative." Benefits and Costs 4 (statement of Fred D. Gray). Other witnesses similarly expressed the view that "[t]he number of objections does not capture the Act's tremendous deterrent effect." Continuing Need 100 (Karlan Responses); id. at 141 (prepared statement of Anita S. Earls); Introduction to Expiring Provisions 166 (Shaw Responses); Impact and Effectiveness 66 (prepared statement of Joseph D. Rich). One witness interpreted the decline in objection rates not as an indication that Section 5 is no longer needed, but as a sign of Section 5's success in preventing covered jurisdictions from submitting discriminatory voting changes for preclearance in the first place. As she explained, "[i]f there was an environmental regulation that limited pollution levels, cleaner air would not signify that it is no longer needed, but that it is sufficiently serving its purpose and must be renewed."
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Continuing Need 68 (Earls Responses). The three-judge court in Nw. Austin I provided "several concrete examples" of cases in
which "formal objections were unnecessary to thwart discriminatory voting changes," because the mere existence of Section 5 served to deter covered jurisdictions from "proposing certain changes once they realized the proposals would prompt objections." See 573 F. Supp. 2d at 265. Several witnesses highlighted the significance of Section 5 not just as a deterrent to the enactment of discriminatory voting changes, but also as a kind of "bargaining chip" for minority voters, ensuring that minority political participation remains a "central consideration" in the structuring of electoral processes. See Continuing Need 190-91 (prepared statement of Pamela S. Karlan); see also Impact and Effectiveness 66 (prepared statement of Joseph D. Rich).
Unfortunately, it is simply not possible to determine the number of purposefully discriminatory voting changes that have been deterred by Section 5. See, e.g., Continuing Need 114 (Pildes Responses) (noting that "the extent to which the existence of § 5 creates an effective deterrent effect is extremely difficult, perhaps impossible, to quantify"); Introduction to Expiring Provisions 73 (Hasen Responses) (explaining that the magnitude of Section 5's "deterrent effect cannot be quantified from the record"). Nor is it possible to determine -- at least to any reasonable degree of certainty -- whether, in the absence of Section 5, covered jurisdictions would resort to a host of unconstitutional, discriminatory voting practices. See Introduction to Expiring Provisions 39-40 (Hasen Responses); see also Nw. Austin I, 573 F. Supp. 2d at 267 (recognizing that "no one can know for sure what would happen if section 5 were allowed to expire"). Nevertheless, in examining whether Section 5 remains "justified by current needs," Nw. Austin II, 129 S. Ct. at 2512, it is significant to recall Congress's finding in 2006 that the
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preclearance requirement has continued to deter covered jurisdictions from even attempting to adopt discriminatory voting changes in the first place. See H.R. Rep. No. 109-478, at 24. It therefore seems fair to assume that the instances of intentional voting discrimination documented in the legislative record represent only a fraction of those instances that otherwise would have occurred in the absence of Section 5, given the number of "discriminatory voting changes that have never materialized" as a result of the preclearance requirement. See id. at 36.
C. Section 5 as a Congruent and Proportional Response to a Continuing History and Pattern of Unconstitutional Conduct by Covered Jurisdictions 1. A Continuing History and Pattern of Unconstitutional Conduct
Having reviewed the evidence of unconstitutional voting discrimination in the 2006 legislative record, the Court must now answer the central question posed by this case: "does the 2006 legislative record contain sufficient evidence of contemporary discrimination in voting to justify Congress's decision to subject covered jurisdictions to section 5 preclearance for another twenty-five years?" See Nw. Austin I, 573 F. Supp. 2d at 265. In other words, did Congress possess the requisite "evidence of a pattern of constitutional violations on the part of the States," Hibbs, 538 U.S. at 729, which is needed to satisfy the second step of the three-part Boerne analysis? For several reasons, this Court agrees with the three-judge court in Nw. Austin I that "the 2006 legislative record is plainly adequate to justify section 5's 'strong remedial and preventive measures.'" 573 F. Supp. 2d at 271 (quoting Boerne, 521 U.S. at 526).
First, the legislative record amassed by Congress in support of the 2006 reauthorization of Section 5 is at least as strong as that held sufficient to uphold the 1975 reauthorization of Section 5 in City of Rome. See Nw. Austin I, 573 F. Supp. 2d at 265-66, 270-71. In City of Rome, the
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Supreme Court looked to three types of evidence in evaluating whether Section 5 remained justified by current needs: evidence of (1) continued racial disparities in voter registration; (2) the number of minority elected officials; and (3) the nature and number of Section 5 objections. In 1975, there were 16, 17.8, and 23.6 percentage point disparities in voter registration rates between blacks and whites in Louisiana, North Carolina, and Alabama -- disparities that the Supreme Court characterized as "significant." See S. Rep. No. 94-295, at 779; see also City of Rome, 446 U.S. at 180. In 2004, there were 14.2, 17.8, and 19.2 percentage point disparities in voter registration rates between blacks and non-Hispanic whites in Virginia, Arizona, and Florida, and disparities of over 40 percentage points in voter registration rates between Hispanics and non-Hispanic whites in Arizona, California, Virginia, Georgia, and North Carolina. See 2004 U.S. Census Report. These disparities are certainly comparable to those deemed "significant" by the Supreme Court in City of Rome.
With respect to minority elected officials, in 2006, just as in 1975, Congress recognized the significant progress that had been made as far as the number of African-American elected officials in covered jurisdictions, but also found that African-Americans remained underrepresented in state legislatures in the South based on their percentage of the population. See H.R. Rep. No. 109-478, at 33. Congress additionally found that three of the covered states that had never elected a black representative to statewide office as of 1975 (Mississippi, Louisiana, and South Carolina) still had never elected a black representative to statewide office as of 2006. Id.
In terms of the objection-related statistics in the legislative record -- the third category of evidence relied on by the Supreme Court in City of Rome -- Congress in 2006 acknowledged that
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the objection rate had been lower in recent years than in the years immediately prior to the 1975 reauthorization of Section 5. But Congress also received evidence indicating that the objection rate has always been below 5%, see Introduction to Expiring Provisions 219 (attachment to Hasen Prepared Statement), and that there were still more than 700 objections lodged by the Attorney General since 1982, see H.R. Rep. No. 109-478, at 21, with more objections lodged after 1982 than before, see 1 Evidence of Continued Need 172-73 (Nat'l Comm'n Report). In light of this data, the House Committee on the Judiciary had good reason to conclude that the evidence of voting discrimination in the 2006 legislative record still "resemble[d]" the evidence before Congress when it reauthorized Section 5 in 1975. See H.R. Rep. No. 109-478, at 6. This "resemblance" of the 2006 legislative record to the 1975 legislative record is critical, given that Boerne and later cases applying the congruence and proportionality framework have repeatedly cited the legislative record at issue in City of Rome as containing precisely the kind of evidence needed to sustain remedial, prophylactic enforcement legislation like Section 5. See Nw. Austin I, 573 F. Supp. 2d at 271 (citing Boerne, 521 U.S. at 530; Fla. Prepaid, 527 U.S. at 640; Garrett, 531 U.S. at 369, 373-74).
In addition to the three categories of evidence relied on by the Supreme Court in City of Rome, Congress in 2006 identified several other forms of evidence that bear directly on the persistence of unconstitutional voting discrimination by covered jurisdictions. As previously mentioned, one study in the legislative record revealed that there were 421 objections lodged between 1982 and 2006 in which the Attorney General denied preclearance to a covered jurisdiction's proposed voting change based on his inability to find that the change was not motivated by a racially discriminatory purpose. See Preclearance Standards 180 tbl. 2 (McCrary
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Study). Another study found that 205 voting changes were withdrawn by covered jurisdictions after receipt of an MIR, thereby suggesting that the covered jurisdiction may have known that its change could not withstand federal scrutiny. See 1 Evidence of Continued Need 178 (Nat'l Comm'n Report). There were 25 unsuccessful judicial preclearance suits filed since 1982, including some in which preclearance was denied on the basis of discriminatory intent. See Nw. Austin I, 573 F. Supp. 2d at 266. And there were at least 105 successful Section 5 enforcement actions between 1982 and 2006, some of which led to the abandonment of unprecleared voting changes by covered jurisdictions, while others led to intent-based denials of preclearance after covered jurisdictions were forced to submit their voting changes for federal review. See 1 Evidence of Continued Need 185-86 (Nat'l Comm'n Report); see also Preclearance Standards 83 (appendix to statement of Brenda Wright). From 1982 to 2006, there were tens of thousands of federal observers dispatched to monitor elections in covered jurisdictions, see 2006 Amendments § 2(b)(3)-(4), (8), 120 Stat. at 577-78, many of whom played a key role in preventing the attempted intimidation and harassment of minority voters at the polls, see H.R. Rep. No. 109478, at 44. And perhaps most importantly, there were at least 14 reported Section 2 cases since 1982 involving judicial findings of intentional or unconstitutional voting discrimination by covered jurisdictions. Nw. Austin I, 573 F. Supp. 2d at 258. As the three-judge court in Nw. Austin I pointed out, "all this evidence becomes even more compelling given Congress's finding that section 5's preclearance requirement has deterred covered jurisdictions from even attempting to implement an unknown and unknowable number of [voting] changes." Id. at 266.
It is noteworthy that the evidence of unconstitutional voting discrimination in the 2006 legislative record far exceeds the evidence of unconstitutional discrimination found sufficient to
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uphold the challenged legislation in both Hibbs and Lane. See Nw. Austin I, 573 F. Supp. 2d at 271. In Hibbs, a male employee of the Nevada Department of Human Resources brought suit under the FMLA after he was discharged for failing to return to work because he had been caring for his ailing wife. Nevada contended that Congress had exceeded its Fourteenth Amendment enforcement authority by abrogating state sovereign immunity in the FMLA. Rejecting this challenge, the Supreme Court held that Congress "had evidence of a pattern of constitutional violations on the part of the States in this area," which justified enactment of the remedial § 5 legislation. 538 U.S. at 729. In so holding, the Supreme Court relied on just four pieces of evidence:
(1) a Senate Report citation to a Bureau of Labor Statistics survey revealing disparities in private-sector provision of parenting leave to men and women; (2) submissions from two sources at a hearing on the Parental and Medical Leave Act of 1986 . . . that public-sector parental leave policies "diffe[r] little" from private-sector policies; (3) evidence that 15 States provided women up to one year of extended maternity leave, while only 4 States provided for similarly extended paternity leave; and (4) a House Report's quotation of a study that found that failure to implement uniform standards for parenting leave would "leav[e] Federal employees open to discretionary and possibly unequal treatment." Lane, 541 U.S. at 528 n.17 (citation omitted) (summarizing Hibbs, 538 U.S. at 728-33). In other words, the Supreme Court upheld the challenged provision of the FMLA as responsive to a documented history and pattern of unconstitutional conduct by the states, based solely on (1) a survey that found discriminatory parental leave practices by private-sector employers, not state employers; and (2) three other forms of evidence of employers' discriminatory practices with respect to parental leave, despite the fact that the FMLA provision at issue provided for family leave, not parental leave. See Hibbs, 538 U.S. at 746-48 (Kennedy, J., dissenting). The majority concluded that evidence relating to parental leave was "relevant
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because both parenting and family leave provisions respond to 'the same gender stereotype: that women's family duties trump those of the workplace.'" Id. at 748 (quoting 538 U.S. at 731 n.5). But as Justice Kennedy pointed out in dissent, "the question is not whether the family leave provision is a congruent and proportional response to general gender-based stereotypes in employment . . . [but] whether it is a proper remedy to an alleged pattern of unconstitutional discrimination by States in the grant of family leave." Id. at 749.
In Lane, the Supreme Court upheld Title II of the ADA as applied to claims by the disabled alleging that they had been denied access to the courts based on "statistical, legislative, and anecdotal evidence of the widespread exclusion of persons with disabilities from the enjoyment of public services." Lane, 541 U.S. at 529. Significantly, however, the Supreme Court in Lane identified only "two reported cases finding that a disabled person's federal constitutional rights were violated" as a result of being denied access to the courts. Id. at 544 (Rehnquist, C.J., dissenting) (citing 541 U.S. at 525 n.14). Aside from those two cases, the only evidence that the Court identified with respect to "due process 'access to the courts'" violations was (1) the testimony of two witnesses before a House subcommittee as to the "'physical inaccessibility' of local courthouses," even though neither witness "reported being denied the right to be present at constitutionally protected court hearings"; and (2) a report by the ADA Task Force on the Rights and Empowerment of Americans with Disabilities, which contained "a few anecdotal handwritten reports of physically inaccessible courthouses." Id. at 545. As Chief Justice Rehnquist noted in dissent, these types of anecdotes do "not state a constitutional violation," since "[a] violation of due process occurs only when a person is actually denied the constitutional right to access a given judicial proceeding." Id. at 546. Yet the majority in Lane
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found this evidence sufficient to establish "a pattern of unconstitutional treatment in the administration of justice," at least when viewed against the "backdrop of pervasive unequal treatment in the administration of state services and programs." Id. at 524.
The evidence relied on by the Supreme Court to uphold the challenged legislation in Hibbs and Lane "pales in comparison to the extensive record Congress compiled when extending section 5." Nw. Austin I, 573 F. Supp. 2d at 271. Just on the subject of formal judicial findings of unconstitutional conduct, Congress in 2006 identified three times as many reported cases since 1982 in which covered jurisdictions committed unconstitutional voting discrimination against minority voters (6) than the number of cases Lane identified in which a state unconstitutionally denied a disabled person access to the courts (2). Compare S. Rep. No. 109-295, at 65 with Lane, 541 U.S. at 544 (Rehnquist, C.J., dissenting) (citing 541 U.S. at 525 n.14). This is particularly remarkable, as the Nw. Austin I court noted, "given that section 5 was actively deterring constitutional violations throughout the period under review." 573 F. Supp. 2d at 272.
But, of course, there is much more in the 15,000-page record supporting the 2006 reauthorization of Section 5. The circumstantial evidence of unconstitutional voting discrimination relied on by Congress also far outweighs the circumstantial evidence of unconstitutional discrimination relied on by the Supreme Court in Hibbs and Lane. In Lane, for example, the Court cited as circumstantial evidence of unconstitutional discrimination the testimony of several disabled persons as to the physical inaccessibility of local courthouses -even though physical inaccessibility, in and of itself, does not reflect a constitutional violation. See 541 U.S. at 546 (Rehnquist, C.J., dissenting) (explaining that "[w]e have never held that a person has a constitutional right to make his way into a courtroom without any external
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assistance"). By contrast, many of the examples of voting discrimination cited by Congress in support of the 2006 reauthorization of Section 5 are highly suggestive of unconstitutional conduct: whether it be Kilmichael, Mississippi's decision to cancel its 2001 local elections in which a significant number of African-Americans sought office immediately after new Census data revealed that African-Americans recently had become a majority of the town's population; Charleston County, South Carolina's sudden decision in 2000 to change the method of election for its school board to one that had recently been struck down as discriminatory, just after African-Americans won a majority of seats on the board for the first time; Alabama poll officials' 1992 attempts to "close the doors" on African-American voters before the voting hours were over; Louisiana's 2001 decision to purposefully "obliterate" a majority-black district in Orleans Parish; South Dakota's passage of a photo identification law in 2002 that state legislators conceded was adopted in order to "retaliate" against the recent rise in Native American voter registration; Mississippi's 1995 attempt to revive its dual registration system without seeking preclearance, even though prior versions of the system had all been invalidated as discriminatory; or Waller County, Texas's suspiciously-timed reduction in voting opportunities for Prairie View A&M students immediately before a 2004 election that was marked by the presence of two black Prairie View A&M students as candidates for office. None of these incidents resulted in a formal judicial finding of unconstitutional voting discrimination. Yet each case -- and many others like them in the 15,000-page legislative record -- supports the conclusion that unconstitutional voting discrimination persists in covered jurisdictions, notwithstanding the deterrent effect of Section 5.
In evaluating whether Congress properly found a history and pattern of unconstitutional conduct sufficient to justify the 2006 reauthorization of Section 5, it is also significant to recall
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the deference to which Congress is entitled when it legislates to enforce the substantive guarantees of the Fifteenth Amendment. As the Supreme Court acknowledged in Nw. Austin II, "[t]he Fifteenth Amendment empowers 'Congress,' not the Court, to determine in the first instance what legislation is needed to enforce it." 129 S. Ct. at 2513. And as explained earlier, Congress acts at the pinnacle of its constitutional enforcement authority when it legislates to protect a fundamental right, or when it legislates to prohibit discrimination against a suspect class. See supra pp. 65-66. In reauthorizing Section 5 in 2006, Congress did both.
Moreover, Congress's determination that there is a continued need for Section 5 was not based on a perfunctory review of a few isolated examples of voting discrimination by covered jurisdictions. Instead, Congress "approached its task seriously and with great care." Nw. Austin I, 573 F. Supp. 2d at 265. It held 22 hearings over the course of eight months, and heard testimony from 92 witnesses, including Justice Department attorneys, law professors, social scientists, and civil rights litigators. In addition to that testimony, the evidence that Congress collected consisted of statistical and other analyses, objection letters, law review articles, judicial decisions, and first-hand accounts of discrimination. Ultimately, Congress amassed a 15,000page legislative record in support of its decision to renew Section 5 -- a record that the Supreme Court has described as "sizeable," Nw. Austin II, 129 S. Ct. at 2513, and that dwarfs those deemed sufficient in Lane and Hibbs. Shelby County points out that "[i]t is the quality of the evidence that matters – not the quantity of evidence." See Pl.'s Reply at 38. But the Supreme Court has often acknowledged the quantity of the evidence considered by Congress in the course of assessing the sufficiency of that evidence. See, e.g., Katzenbach, 383 U.S. at 309 (describing the legislative history of the Act as "voluminous"). And surely Congress's judgment that
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"extending the expiring provisions of the Voting Rights Act is still necessary," S. Rep. No. 109295, at 2, is all the more valuable given the "sheer bulk of the record showing both continued problems and significant improvements," id. at 15, which Congress reviewed prior to reaching its conclusion.
There are additional reasons to accord significant weight to Congress's 2006 decision to renew Section 5. First, Congress in 2006 did not enact new legislation, but instead reauthorized legislation that had already been in effect for more than 40 years. During those 40 years, the Supreme Court upheld the constitutionality of Section 5 on four separate occasions, each time finding that "circumstances continued to justify the provision[]." See Nw. Austin II, 129 S. Ct. at 2510 (citing Georgia, 411 U.S. 526; City of Rome, 446 U.S. 156; Lopez, 525 U.S. 266); see also Katzenbach, 383 U.S. at 334. Twice, the Supreme Court has assessed facial challenges to Section 5 like the one raised here by Shelby County, and both times the Court has found that Section 5 passed constitutional muster based on evidence of continued voting discrimination by covered jurisdictions. See Katzenbach, 383 U.S. at 334; City of Rome, 446 U.S. at 182.
The Supreme Court in Nw. Austin II made clear that past discrimination alone cannot sustain Section 5, see 129 S. Ct. at 2511, but the Court by no means suggested that history was irrelevant to the constitutional analysis. In Boerne and the cases applying the congruence and proportionality framework since Boerne, the Supreme Court has acknowledged the significance of an established history of unconstitutional discrimination in evaluating the need for remedial enforcement legislation, often citing examples of discrimination at least several decades old in order to justify the challenged legislation. See, e.g., Lane, 541 U.S. at 524 (describing the historical "backdrop" of discrimination against the disabled, and citing examples of such
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discrimination dating from the late 1970s); Hibbs, 538 U.S. at 729 (recognizing "[t]he history of the many state laws limiting women's employment opportunities," and providing examples of cases upholding the validity of such laws as far back as 1873); Richard L. Hasen, Congressional Power to Renew the Preclearance Provisions of the Voting Rights Act After Tennessee v. Lane, 66 OHIO ST. L.J. 177, 200 (2005) (interpreting Lane to mean that "old" evidence of voting discrimination could be used to support a reauthorization of Section 5).
When courts assess individual instances of alleged voting discrimination like those described in the 2006 legislative record -- for example, in the context of a Section 2 suit or a direct constitutional challenge -- they also look to historical evidence to determine whether there has been intentionally discriminatory, unconstitutional conduct. As the Supreme Court explained in Rogers v. Lodge, "[e]vidence of historical discrimination is relevant to drawing an inference of purposeful discrimination, particularly in cases . . . where the evidence shows that discriminatory practices were commonly utilized, that they were abandoned when enjoined by the courts or made illegal by civil rights legislation, and that they were replaced by practices which, though neutral on their face serve to maintain the status quo." 458 U.S. at 625; see also Charleston Cnty., 573 F. Supp. 2d at 305 (explaining that under Arlington Heights, "[t]he historical background of the jurisdiction's decision" must be considered in determining whether "discriminatory intent was in fact a motivating factor in a jurisdiction's enactment of legislation"). Given the significance of historical context in assessing both the general need for remedial, prophylactic enforcement legislation and whether particular instances of alleged voting discrimination do, in fact, amount to constitutional violations, it is clear that any assessment of the continued need for Section 5 cannot be undertaken in a historical vacuum.
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This Court agrees with the three-judge court in Nw. Austin I that Congress's "predictive judgment" as to the continued need for Section 5 warrants "particular respect," given that it was a prediction based "on experience, requiring less in the way of conjecture than when Congress enacts legislation for the first time." 573 F. Supp. 2d at 267. In reauthorizing Section 5 in 2006, Congress could not be certain as to whether unconstitutional voting discrimination would increase in the absence of Section 5, and whether, just as in 1965, private enforcement actions would once again prove insufficient to protect minorities' voting rights if Section 5 were allowed to expire. But courts "must accord substantial deference to the predictive judgments of Congress . . . particularly when, as here, those predictions are so firmly rooted in relevant history and common sense." Id. (quoting McConnell v. FEC, 540 U.S. 93, 165 (2003)) (internal quotation marks and citations omitted). As the Supreme Court noted in Nw. Austin II, Congress is a coequal Branch that is empowered under the Fifteenth Amendment "to determine in the first instance what legislation is needed to enforce it," and courts must be cautious when engaging in the grave and delicate role of assessing the constitutionality of carefully-considered legislation. See 129 S. Ct. at 2513. And in 2006, Congress concluded after many months of deliberation and compilation of a massive record that "a failure to reauthorize the temporary provisions [of the Voting Rights Act], given the record established, would leave minority citizens with the inadequate remedy of a Section 2 action," which, in light of past experience, would not be "enough to combat the efforts of certain States and jurisdictions to discriminate against minority citizens in the electoral process." H.R. Rep. No. 109-478, at 57.
Congress's predictive judgment was based not only on the established pre-1965 history of unconstitutional state-sponsored voting discrimination in the South, but also on evidence of
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Section 5's substantial deterrent effect over 40 years. Most importantly, it was based on the extensive 15,000-page legislative record replete with direct and circumstantial evidence of contemporary voting discrimination by covered jurisdictions -- voting discrimination that occurred despite the existence of Section 5. This Court finds, then, that Congress satisfied its burden in 2006 of identifying a continuing "history and pattern of unconstitutional . . . discrimination by the States," Garrett, 531 U.S. at 368, which was sufficient to justify the reauthorization of Section 5 as remedial, prophylactic enforcement legislation.
2. The Congruence and Proportionality of Section 5 The third and final step of the Boerne analysis requires the Court to decide whether Section 5 still constitutes a "congruent and proportional" response to the problem that it targets. Shelby County casts Section 5 as an unduly broad remedial measure, arguing that "[l]ike RFRA, Section 5's 'sweeping coverage ensures its intrusion at every level of government, displacing laws and prohibiting official actions' regarding any change in voting laws." Pl.'s Reply at 21 (quoting Boerne, 521 U.S. at 532). In a sense, Shelby County is correct: Section 5 does require covered jurisdictions to seek preclearance for all changes to their voting practices or procedures, regardless of how trivial or innocuous those changes may be. See, e.g., Nw. Austin II, 129 S. Ct. at 2511 (noting that "the preclearance requirement applies broadly"). But Section 5 is nonetheless limited in meaningful ways. Indeed, the Supreme Court in Boerne praised Section 5 as an exemplary congruent and proportional remedy, pointing to the Act's temporal and geographic limits as a means of distinguishing it from RFRA, which lacked a "termination date or termination mechanism." See Boerne, 521 U.S. at 532-33. For purposes of assessing the congruence and proportionality of Section 5 as reauthorized in 2006, then, it is significant that
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"the limiting features of section 5 the Court believed so compelling in the City of Boerne cases all remain in place today." Nw. Austin I, 573 F. Supp. 2d at 274.
Despite Shelby County's suggestion that Section 5 has been transformed from an "emergency" provision into a "permanent" intrusion on state sovereignty, see Pl.'s Reply at 43, Congress in 2006 did not choose to make Section 5 permanent. Instead, it extended the preclearance requirement for 25 years, and provided for congressional reconsideration of the Act's temporary provisions in 15 years. See S. Rep. No. 109-295, at 5; 42 U.S.C. § 1973b(a)(7), (8). Although 25 years is longer than the 7 year extension of Section 5 upheld by the Supreme Court in City of Rome, the 2006 extension is the same length as the 1982 extension. And Congress had at least two good reasons for selecting 25 years as the length of the extension. First, a renewal period of more than 20 years was needed to cover two decennial redistricting cycles. Because "most section 5 activity 'occurs during redistricting, which only happens every ten years following each census,' a shorter extension would [have] 'capture[d] only one redistricting cycle,'" which would not have provided as much "'evidence . . . to allow Congress to make the same reasoned determination regarding renewal'" that the 2006 Congress was able to make as a result of the previous 25-year renewal of Section 5 in 1982. See Nw. Austin I, 573 F. Supp. 2d at 267 (internal citation omitted); see also Introduction to Expiring Provisions 167 (Shaw Responses). Second, a shorter extension period would not have encouraged as many covered jurisdictions to seek bailout. Under the 1982 Amendments, a covered jurisdiction petitioning for bailout must demonstrate that it has complied with the Act's requirements for the past ten years. See 42 U.S.C. § 1973b(a). Any renewal of Section 5 for a period of less than ten years therefore "'would [have] completely nullif[ied] the current incentive [for] covered
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jurisdictions to maintain clean voting records." Nw. Austin I, 573 F. Supp. 2d at 267 (internal citation omitted).
For these reasons, Congress decided that "another 25 years of remedial measures (for a total of 67 years of remedial measures under the VRA until 2032) remains appropriate given the near century of discrimination the Act is designed to combat." H.R. Rep. No. 109-478, at 58. Like the three-judge court in Nw. Austin I, this Court "see[s] no basis for questioning this quintessentially legislative judgment." 573 F. Supp. 2d at 268. Although the 25-year renewal period is substantial, the fact that Section 5 continues to be temporally limited distinguishes it from every piece of legislation that has been struck down by the Supreme Court as lacking congruence and proportionality under Boerne.
In addition to its termination date, Section 5 also remains limited by its termination mechanism, as jurisdictions may bailout of Section 5 coverage if they meet certain statutory requirements. See Nw. Austin II, 129 S. Ct. at 2509; 42 U.S.C. § 1973b(a). The Court in Boerne pointed to the existence of this termination mechanism, which "ensure[d] that the reach of the Voting Rights Act was limited to those cases in which constitutional violations were most likely," as indicative of Section 5's congruence and proportionality. See 521 U.S. at 533. Since Boerne, the bailout provision has remained in effect. See H.R. Rep. No. 109-478, at 55 (noting that "H.R. 9 preserves those same provisions" that were cited approvingly by the Court in Boerne, as covered jurisdictions may still "escape coverage by showing the danger of substantial voting discrimination has not materialized during the preceding (now ten) years"). Under 42 U.S.C. § 1973b(a), a jurisdiction may seek to terminate its coverage under Section 5 by filing a declaratory judgment action demonstrating that, for the past ten years, "it has not used any
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forbidden voting test, has not been subject to any valid objection under § 5, and has not been found liable for other voting rights violations; it must also show that it has 'engaged in constructive efforts to eliminate intimidation and harassment' of voters, and similar measures." Nw. Austin II, 129 S. Ct. at 2509 (quoting §§ 1973b(a)(1)(A)-(F)).
Shelby County questions whether bailout is "a realistic option," citing the fact that only 6% of the jurisdictions originally covered by the Act have successfully bailed out since 1965. See Pl.'s Reply at 33. But this statistic is misleading. Since 1984 -- when the 1982 Amendments liberalizing the bailout procedure went into effect -- the Attorney General has consented to every bailout action that has been filed. See Berman Decl. ¶¶ 27, 29. Indeed, since the initiation of this lawsuit in April 2010, the Attorney General has consented to an additional seven bailout suits that have been filed by covered jurisdictions. See Def.'s Second Notice of Supp. Info. [Docket Entry 81] at 2; Def.'s Mot. at 72; Berman Decl. ¶ 27. Congress heard testimony during the 2006 reauthorization hearings from J. Gerald Hebert, former Acting Chief of the Civil Rights Division of the Justice Department, who, at the time of his testimony, had represented all of the covered jurisdictions to successfully bail out since 1984. See Voting Rights Act: An Examination of the Scope and Criteria for Coverage Under the Special Provisions of the Act, Hearing Before the Subcomm. on the Constitution of the H. Comm. on the Judiciary, 109th Cong. 90 (Oct. 20, 2005) (hereinafter, "Scope and Criteria") (prepared statement of J. Gerald Hebert) (hereinafter, "Hebert Prepared Statement"). According to Hebert, the reason for the low number of successful bailout actions is not that "jurisdictions are applying and being denied" but that "jurisdictions are just not applying." Id.
There are several plausible explanations for this failure to seek bailout. As Professor
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Karlan noted during her 2006 testimony before the Senate Judiciary Committee, it is possible that "jurisdictions have not sought bailout because they have not satisfied all the conditions . . . and see no point in a futile effort to bail out." Continuing Need 93 (Karlan Responses). This, of course, could mean that the criteria for bailout are overly rigorous; but Congress in 2006 heard testimony that "[m]ost of the factors to be demonstrated are easily proven for jurisdictions that do not discriminate in their voting practices." See Scope and Criteria 90 (Hebert Prepared Statement) (rejecting the contention that "the criteria [for bailout] are . . . too difficult to meet"). Accepting that the bailout requirements are appropriately tailored to identify those jurisdictions with "clean" voting rights records, which appears to be the case, see id. at 104 (describing the bailout requirements as "perfectly tailored"), the failure of so many covered jurisdictions to seek bailout likely means that these jurisdictions -- or governmental units within these jurisdictions -have, in fact, committed voting rights violations in recent years, thereby justifying their continued coverage under the Act.
Another possible reason for the low bailout rate is the minimal administrative cost associated with preclearance, and the fact that covered jurisdictions see no need to avoid the preclearance requirement. Congress in 2006 heard testimony from Donald Wright, General Counsel of the North Carolina State Board of Elections, who indicated that most preclearance submissions "are routine matters that take only a few minutes to prepare using electronic submission formats" that are "readily available." Policy Perspectives 313 (prepared statement of Donald M. Wright). Wright characterized the practical cost of preclearance as "insignificant" -with the exception of redistricting submissions, which tend to be relatively infrequent -- and he went on to explain that the "consensus" among election officials in North Carolina is that Section
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5 imposes "a manageable burden providing benefits in excess of costs and time needed for submissions." Id. Other witnesses similarly testified that the benefits of Section 5 far outweigh its costs, given that the preparation of a preclearance submission is no more than "a small administrative act." See Benefits and Costs 25 (testimony of Fred D. Gray); Continuing Need 64 (Earls Responses) (explaining that "the majority" of officials "did not find Section 5 requirements to be burdensome").16
Indeed, in the Nw. Austin litigation, six states covered in whole or in part by Section 4(b) -- Louisiana, California, North Carolina, Arizona, Mississippi, and New York -- submitted an amicus brief in which they urged the Supreme Court not to strike down Section 5, arguing that "the benefits of Section 5 greatly exceed the minimal burdens that Section 5 may impose on States and their political subdivisions." See Amicus Br. for North Carolina, Arizona, California, Louisiana, Mississippi and New York, Nw. Austin II, 2009 WL 815239, at *2, 17 (Mar. 25, 2009). According to these states, Section 5 does not constitute "an undue intrusion on state sovereignty," because the administrative preclearance process is both "expeditious and costeffective," and any burden that Section 5 imposes on covered jurisdictions is more than justified by Section 5's "substantial benefits." Id. at *1-2. Section 5's minimal administrative burden -- at least according to these six states -- stands in stark contrast to the "heavy litigation burden"
16 The Court recognizes that administrative costs of compliance are not the only costs imposed by Section 5. See, e.g., Bossier II, 528 U.S. at 336 (referring to "the 'substantial' federalism costs that the preclearance procedure already exacts") (quoting Lopez, 525 U.S. at 282). Nevertheless, an assessment of a remedial statute's practical costs is relevant in determining whether it constitutes congruent and proportional legislation. See, e.g., Boerne, 521 U.S. at 534 (describing the "substantial costs RFRA exacts, both in practical terms of imposing a heavy litigation burden on the States and in terms of curtailing their traditional general regulatory power").
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imposed by RFRA. See Boerne, 521 U.S. at 534.17 In addition to the evidence indicating that the practical cost of Section 5 compliance is
low, Congress in 2006 received evidence indicating that the practical cost of Section 2 litigation is high. As one expert explained during her 2006 testimony before the Senate Judiciary Committee, Section 2 litigation is both time-consuming and costly, as it requires attorneys "to assemble plaintiffs with standing, file a case and engage in discovery," and "even on an expedited schedule, trial will be months and possibly a year after the new law is put in place." Continuing Need 61 (Earls Responses). Section 2 litigation places a heavy burden on minority plaintiffs, who not only must fund the litigation, but also must prove that particular voting practices are, in fact, discriminatory (unlike Section 5, which shifts the burden to covered jurisdictions to prove that their voting changes are non-discriminatory). See Katzenbach, 383 U.S. at 328. Moreover, even if minority plaintiffs are able to satisfy this evidentiary burden, Section 2 -- unlike Section 5 -- can only eradicate discriminatory voting practices after they have already been implemented to the detriment of minority voters. See Def.'s Mot. at 55-57.
For all these reasons, several witnesses who testified during the 2006 reauthorization hearings speculated that in the absence of Section 5, Section 2 would prove insufficient to protect minority voting rights. See, e.g., Benefits and Costs 80 (responses of Armand Derfner to questions submitted by Senators Cornyn, Coburn, Leahy, Kennedy, and Schumer) (describing Section 2 cases as "expensive and time-consuming to litigate and hard to win," and refuting the position that "Section 5 is not needed because other litigation will do the job"); Continuing Need
17 No states have sought to join in Shelby County's well-publicized challenge to Section 5.
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15 (testimony of Pamela S. Karlan) (explaining that Section 2 suits demand "huge amounts of resources" and that Section 2 litigation is not "an adequate substitute in any way" for Section 5). The inadequacy of alternative remedies like Section 2 in combating continued voting discrimination by covered jurisdictions further confirms that Section 5 is "congruent and proportional" to the problem that it targets. Cf. Garrett, 531 U.S. at 373 (noting that the Voting Rights Act was only enacted after "traditional litigation had proved ineffective" in the course of describing why the Act reflects an appropriately "detailed but limited remedial scheme").
Perhaps the most significant way in which Section 5 remains limited, however, is through its application to only "those states with the most severe histories of discrimination" in voting. See Nw. Austin I, 573 F. Supp. 2d at 274. Since it was first enacted in 1965, Section 5 has never applied nationwide, but has always targeted specific jurisdictions with a "long history of racial disenfranchisement and dilution." Continuing Need 103 (Karlan Responses); see also supra pp. 11, 22. Boerne and its progeny have repeatedly highlighted Section 5's selective coverage in explaining why it constitutes appropriately tailored remedial legislation. See, e.g., Boerne, 521 U.S. at 532-33 (comparing RFRA's nationwide application to the provisions of the Voting Rights Act upheld in Katzenbach, which "were confined to those regions of the country where voting discrimination had been most flagrant"); Garrett, 531 U.S. at 373 (explaining that the Voting Rights Act, unlike Title I of the ADA, was targeted at "those areas of the Nation where abundant evidence of States' systematic denial of [voting] rights was identified"); Fla. Prepaid, 527 U.S. at 647 (contrasting the "various limits" contained in the Voting Rights Act with the absence of any such limits in the Patent and Plant Variety Protection Remedy Clarification Act). And like the other limiting features of Section 5 that were lauded by the Supreme Court in Boerne, the
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coverage formula embodied in Section 4(b) remained unchanged when Congress reauthorized Section 5 in 2006.
Given that Congress preserved all of Section 5's traditional limiting features when it reauthorized Section 5 in 2006 (including its selective geographic scope, its termination date, and its termination mechanism), after it heard testimony as to the low administrative costs imposed by preclearance and the inability of Section 2 litigation to effectively prevent unconstitutional voting discrimination, this Court sees no reason to question Congress's considered judgment that Section 5 remains congruent and proportional to the problem that it targets.18 The question remains, however, whether the geographical limitation of Section 5 through the coverage formula of Section 4(b) is itself vulnerable to challenge. IV. The Constitutionality of Section 4(b)
Shelby County challenges Section 4(b) on the ground that it unconstitutionally differentiates between states in violation of "the principle of equal sovereignty" embodied in the Tenth Amendment and Article IV of the Constitution, and that, like Section 5, it does not constitute "'appropriate' enforcement legislation." See Pl.'s Mot. at 35; Compl. ¶ 43(c). Since Katzenbach, it is well-established that "[t]he doctrine of the equality of States . . . does not bar [the] approach" of selectively applying remedial legislation to only those "geographic areas where immediate action seem[s] necessary." 383 U.S. at 328-29. Nevertheless, the Supreme Court in Nw. Austin II made clear that "a departure from the fundamental principle of equal sovereignty requires a showing that a statute's disparate geographic coverage is sufficiently
18 To the extent that Katzenbach's rationality standard rather than Boerne's congruence and proportionality test provides the proper mode of analysis, the Court finds for the same reasons that the 2006 reauthorization of Section 5 withstands scrutiny under Katzenbach.
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related to the problem that it targets." See 129 S. Ct. at 2512. According to Shelby County, "the decades-old data fossilized in the coverage formula bear no relation whatsoever to 'current political conditions' in those jurisdictions'" and "the 'evils' identified by Congress as a basis for reauthorizing Section 5 are not 'concentrated in the jurisdictions singled out for preclearance.'" Pl.'s Reply at 23 (quoting Nw. Austin II, 129 S. Ct. at 2512). Hence, Shelby County contends, Section 4(b)'s coverage formula is no longer "sufficiently related" to the problem that it targets.
The Supreme Court in Nw. Austin II did not explicate the precise nature of the showing needed to determine whether Section 5's disparate geographic coverage remains "sufficiently related" to the problem that it targets. Several justices during oral argument seemed to suggest that Congress might have to undertake a comparative analysis of unconstitutional voting discrimination in covered versus non-covered jurisdictions and prove that the "States that are now covered . . . are markedly different from the noncovered jurisdictions" in order to justify Section 5's continued selective application. Nw. Austin II Oral Arg. Tr. at 22 (Apr. 29, 2009) (Kennedy, J.); see also id. at 48 (Roberts, C.J., asking whether it is counsel's "position that today southerners are more likely to discriminate than northerners"?); id. at 54 (Alito, J., asking counsel whether "there is no [greater] discrimination in voting in Virginia than in North Carolina or in Tennessee or in Arkansas or in Ohio"?); id. at 30 (Scalia, J., pressing counsel as to whether the legislative record shows only that section 5 is still "needed" in covered jurisdictions, or also that Section 5 is needed more in covered jurisdictions than in "the rest of the country"). Significantly, however, the Supreme Court in Katzenbach did not conduct any detailed comparative analysis of voting discrimination in covered versus non-covered jurisdictions when it upheld Section 4(b) in 1966, nor did the Court in City of Rome undertake such a comparative analysis when it upheld
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Section 5 (and its selective application) in 1980. Hence, the Attorney General argues that it was sufficient for Congress in 2006 to choose
"to continue covering the jurisdictions that it had already subjected to the preclearance requirement and that had not bailed out . . . based on findings that voting discrimination continued to exist in those specific jurisdictions and that Section 5 preclearance remained necessary to protect minority voting rights there." Def.'s Supp. Mem. [Docket Entry 75] at 3. No comparative showing as to the precise degree of voting discrimination in covered versus noncovered jurisdictions was necessary, the Attorney General contends, given that a set of jurisdictions was lawfully subjected to preclearance in 1965 -- and in subsequent reauthorizations of the Voting Rights Act -- and Congress learned that those same jurisdictions continued to warrant coverage in 2006. See id. Ultimately, however, this issue need not be parsed further here, because Congress in 2006 did examine both (1) whether voting discrimination persisted in the jurisdictions traditionally covered by Section 4(b), and (2) whether voting discrimination remained more prevalent in these jurisdictions than in the jurisdictions not subject to preclearance under the Act. See Def.'s Supp. Mem. at 4.
This Court has already described in great detail the evidence in the legislative record documenting the contemporary existence of unconstitutional voting discrimination by covered jurisdictions. In assessing whether this evidence is sufficient to justify the continued application of Section 5 to these jurisdictions, it is useful to start with Katzenbach -- the only Supreme Court case in which the Court has outlined the precise nature of the showing needed to sustain Section 4(b). There, South Carolina argued -- like Shelby County does here -- that the coverage formula was "awkwardly designed in a number of respects," 383 U.S. at 329, and it criticized the formula
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for excluding "certain localities which do not employ voting tests and devices, but for which
there is evidence of voting discrimination by other means," id. at 330-31. But the Supreme Court
dismissed these arguments as "largely beside the point." Id. at 329. Congress was not required
to create a perfect fit between the coverage formula and the states where voting discrimination
was the most prevalent, the Court explained, "so long as the distinctions drawn have some basis
in practical experience." Id. at 331 (emphasis added).
The Court in Katzenbach further suggested that Congress was not even required to
document evidence of unconstitutional voting discrimination in each of the states covered by
Section 4(b).19 According to the Court, Congress began working "with reliable evidence of
actual voting discrimination in a great majority of the States and political subdivisions affected
by the new remedies of the Act," and it created a formula that "was relevant to the problem of
voting discrimination." Id. at 329 (emphasis added). That formula -- based on the presence of a
voting test or device in a particular jurisdiction as well as low voter registration or turnout in that
19 This view would also seem to be supported by cases like Hibbs, in which the Supreme Court upheld remedial enforcement legislation with nationwide application without requiring a showing of unconstitutional conduct by every state to which the legislation applied. See, e.g., United States v. Blaine Cnty., Mon., 363 F.3d 897, 906 (9th Cir. 2004) (explaining that, based on Hibbs, "it is clear that Congress need not document evidence of constitutional violations in every state to adopt a statute that has nationwide applicability"); but see Hibbs, 538 U.S. at 741-43 (Scalia, J., dissenting) (criticizing the majority's failure to "even attempt to demonstrate that each one of the 50 States covered by [the challenged legislation] was in violation of the Fourteenth Amendment"); Lane, 541 U.S. at 564 (Scalia, J., dissenting) (stating that he "would not . . . abandon the requirement that Congress may impose § 5 prophylactic legislation only upon those particular States in which there has been an identified history of relevant constitutional violations"). It certainly would seem odd to place a higher evidentiary burden on Congress when it seeks to tailor its remedies to those states where the remedies are most needed than when it chooses to forego any attempt at tailoring, and instead simply enacts remedial legislation on a nationwide scale. On the other hand, one could argue that a higher evidentiary showing is justified in all circumstances in which Congress departs "from the fundamental principle of equal sovereignty." 129 S. Ct. at 2512.
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jurisdiction -- was "relevant" because of the "long history" of states using these tests and devices as a tool for perpetuating minority disenfranchisement. See id. at 330. Once Congress had constructed this "relevant" formula -- which was rational "in both practice and theory," id. -Congress was "entitled to infer a significant danger of the evil in the few remaining States and political subdivisions covered by s[ection] 4(b) of the Act," id. at 329, "at least in the absence of proof that they have been free of substantial voting discrimination in recent years," id. at 330.
Shelby County argues that the coverage formula is no longer "relevant" in 2006 because it is based on voter registration and turnout data that "is now 38 years old and will be 59 years old when the 2006 reauthorization expires," Pl.'s Mot. at 37, and because the "statutory coverage factors are tied to the ability to cast a ballot" whereas Section 5 today is directed primarily at socalled "second generation barriers" to voting, and not at states' attempted "interference with ballot access." Pl.'s Supp. Mem. [Docket Entry 74] at 4; see also Pl.'s Mot. at 38. Certainly the continued reliance on arguably outdated data is fair cause for concern. But ultimately Shelby County misses the point. As previously explained, see supra pp. 11, 22, the specific election years that have come to be used as "triggers" for coverage under Section 4(b) were never selected because of something special that occurred in those years; instead, they were chosen as mere proxies for identifying those jurisdictions with established histories of discriminating against racial and language minority voters. See, e.g., Continuing Need 99 (Karlan Responses); id. at 110 (Pildes Responses). Notwithstanding the passage of time since the coverage formula was last updated, "[t]he identity of the jurisdictions with that pervasive history and contemporary voting discrimination has not changed." Id. at 103 (Karlan Responses). It is for this reason that Chairman Sensenbrenner was so vigorously opposed to the Norwood Amendment's proposed
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"updating" of Section 4(b) in 2006, which would have made the coverage formula dependent on voter turnout and registration data from the three most recent presidential elections. As Chairman Sensenbrenner explained, any "updating" of the coverage formula along these lines would eviscerate Section 5, since the coverage formula "is not, and I repeat 'not' predicated on these [voter turnout and registration] statistics alone." See 152 Cong. Rec. H5181. In 1965, states were only covered by Section 4(b) if "they applied discriminatory voting tests. And it was this aspect of the formula that brought these jurisdictions with the most serious histories of discrimination under Federal scrutiny," Chairman Sensenbrenner explained. Id.
It is also this aspect of the coverage formula -- that is, its link to jurisdictions with proven histories of racial discrimination in voting -- that the Supreme Court has repeatedly cited in noting that Section 5 constitutes an appropriate congruent and proportional remedy. See, e.g., Boerne 521 U.S. at 533 (contrasting Section 5's limited application with RFRA's nationwide scope, and noting that the preclearance requirement "was placed only on jurisdictions with a history of intentional discrimination in voting"); Hibbs, 538 U.S. at 741-43 (Scalia, J., dissenting) (suggesting that the Court in City of Rome upheld "the most sweeping provisions of the Voting Rights Act of 1965 . . . as a valid exercise of congressional power under § 2 of the Fifteenth Amendment" only because those provisions "were restricted to States 'with a demonstrable history of intentional racial discrimination in voting'") (quoting City of Rome, 446 U.S. at 177).
By preserving Section 4(b)'s existing coverage formula in 2006 -- under which jurisdictions are subject to preclearance if they maintained a voting test or device in 1964, 1968, or 1972, and had voter turnout or registration below 50% in that year's presidential election, see 42 U.S.C. § 1973b(b) -- Congress ensured that Section 4(b) would continue to focus on those
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jurisdictions with the worst historical records of voting discrimination. At the same time, Congress did not merely extend the preclearance requirement to these jurisdictions as a "[p]unishment for long past sins," Nw. Austin II, 129 S. Ct. at 2525 (Thomas, J., concurring in judgment in part, dissenting in part). Rather, Congress found substantial evidence of contemporary voting discrimination by the very same jurisdictions that had histories of unconstitutional conduct, which, it concluded, justified their continued coverage under the Act. Finally, Congress found that any over- or under-inclusiveness in Section 4(b) could be remedied through use of the bailout provision in Section 4(a), and the bail-in provision in Section 3(c). See Nw. Austin I, 573 F. Supp. 2d at 274.
To the extent that an additional showing of a meaningful difference in voting discrimination between covered and non-covered jurisdictions was nonetheless required to demonstrate that the Act's coverage remains "sufficiently related to the problem that it targets," the legislative record does contain such evidence. For example, the study of Section 2 litigation conducted by Ellen Katz and the Voting Rights Initiative at the University of Michigan Law School found that 64 of the 114 reported Section 2 cases with outcomes favorable to minority voters were filed in covered jurisdictions. See Impact and Effectiveness 974 (Katz Study). Although a Section 2 violation does not require proof of unconstitutional discriminatory intent, "many of the same factors required to make a finding of intentional discrimination" are the factors used to determine whether there has been a violation of Section 2. See Def.'s Reply at 25; see also Impact and Effectiveness 986 (Katz Study). Accordingly, the fact that more than 56% of the successful Section 2 suits since 1982 have been filed in covered jurisdictions -- even though those jurisdictions contain only 39.2% of the country's African-American population, 31.8% of
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the Latino population, 25% of the Native American population, and less than 25% of the overall population -- suggests that unconstitutional discrimination remains more prevalent in covered than in non-covered jurisdictions. See Impact and Effectiveness 974; see also Introduction to Expiring Provisions 43-44 (responses of Chandler Davidson to questions submitted by Senators Cornyn and Leahy). The disproportionate number of successful Section 2 suits in covered jurisdictions is all the more remarkable considering that "Section 5 blocks and deters discrimination in covered jurisdictions, and, consequently, one would expect to see fewer Section 2 cases there." Def.-Int. Cunningham and Pierson's Supp. Mem. [Docket Entry 73] at 14.
There is also evidence in the legislative record indicating that five of the six Deep South states originally covered by Section 5 (namely, Louisiana, Mississippi, Alabama, Georgia, and South Carolina) accounted for as many as 66% of all federal observer coverages since 1982. See H.R. Rep. No. 109-478, at 24-25. This would certainly seem to suggest that minority voter intimidation and harassment continues to pose a greater problem in covered than in non-covered states -- and that it continues to pose a particularly severe problem in the Deep South. In addition, Congress received evidence in 2006 suggesting that minority candidates are less likely to succeed in elections in covered than in non-covered jurisdictions, see Impact and Effectiveness 1008 (Katz Study) (explaining that the majority of Section 2 cases finding a lack of minority candidate success have arisen in covered jurisdictions), and that racial appeals in elections were more prevalent in covered than in non-covered jurisdictions, see id. at 1003 (Katz Study) (noting that 63.2% of the Section 2 suits that found political campaigns to be characterized by racial appeals arose in covered jurisdictions). Finally, there is evidence in the record indicating that racially polarized voting is much more pronounced in covered than in non-covered jurisdictions.
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See Continuing Need 48 (Earls Responses). One study that assessed elections involving both minority and white candidates found that "virtually all such elections in covered jurisdictions had levels of white bloc voting at 70% or above while less than two thirds of such elections in noncovered jurisdictions had white bloc voting at 70%." Id. In other words, there was a "wide divergence" in the severity of racial bloc voting in covered and non-covered jurisdictions, which reflects "an important empirical finding demonstrating that minorities have less ability to participate equally in the political process in covered jurisdictions." Id.
Hence, although the legislative record is primarily focused on the persistence of voting discrimination in covered jurisdictions -- rather than on the comparative levels of voting discrimination in covered and non-covered jurisdictions -- the record does contain several significant pieces of evidence suggesting that the 21st century problem of voting discrimination remains more prevalent in those jurisdictions that have historically been subject to the preclearance requirement. Like the three-judge court in Nw. Austin I, this Court declines to second-guess Congress's 2006 determination to preserve the traditional coverage formula -targeting those jurisdictions with proven histories of racial discrimination in voting -- which was upheld in Katzenbach and "discussed with approval in the City of Boerne cases," 573 F. Supp. 2d at 279, particularly given the 2006 legislative record demonstrating a continued prevalence of voting discrimination in covered jurisdictions notwithstanding the considerable deterrent effect of Section 5 in those jurisdictions over the preceding 25 years. Accordingly, this Court finds that Section 4(b)'s disparate geographic coverage remains "sufficiently related" to the problem that it targets.
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CONCLUSION On the eve of the 2006 reauthorization of Section 5, many academics wondered whether, given the effectiveness of Section 5 in deterring unconstitutional conduct, Congress would be able to compile a sufficient record of recent unconstitutional voting discrimination to support Section 5's continued existence; in other words, had Section 5 become "a victim of its own success." See, e.g., Samuel Isaacharoff, Is Section 5 of the Voting Rights Act a Victim of Its Own Success?, 104 COLUM. L. REV. 1710 (2004). One scholar characterized this phenomenon as the "Bull Connor is Dead" problem: given the fact that "[m]ost of the original racist elected officials are out of power," and that "those who remain in power . . . have for the most part been deterred by preclearance," would Congress be able to point toward "a record of recent statedriven discrimination . . . supporting renewal" of Section 5 in 2006? Hasen, 66 OHIO ST. L.J. at 177. Based on the evidence contained in the 15,000-page legislative record, this Court concludes that Congress did just that. Despite the effectiveness of Section 5 in deterring unconstitutional voting discrimination since 1965, Congress in 2006 found that voting discrimination by covered jurisdictions had continued into the 21st century, and that the protections of Section 5 were still needed to safeguard racial and language minority voters. Understanding the preeminent constitutional role of Congress under the Fifteenth Amendment to determine the legislation needed to enforce it, and the caution required of the federal courts when undertaking the "grave" and "delicate" responsibility of judging the constitutionality of such legislation -- particularly where the right to vote and racial discrimination intersect -- this Court declines to overturn Congress's carefully considered judgment. For the foregoing reasons, the Court will deny Shelby County's motion for summary
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judgment, and grant the motions for summary judgment filed by the Attorney General and the defendant-intervenors. A separate order has been filed on this date.

Dated: September 21, 2011

/s/ JOHN D. BATES United States District Judge

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 Case 1:10-cv-00651-JDB Document 85 Filed 09/23/11 Page 1 of 1
UNITED STATES DISTRICT COURT
FORTHED~TruCTOFCOLUMB~

Shelby County, Alabama
vs.

Plaintiff

Eric H. Holder, Jr.

Defendant

Civil Action No. 10-651-JDB

NOTICE OF APPEAL
Notice is hereby given this 23rd day of September

, 20_1_1 _ ,that

Shelby County, Alabama
hereby appeals to the United States Court of Appeals for the District of Columbia Circuit from

the judgment of this Court entered on the 21 st

day of September

,20J.1

in favor of Defendant, Eric H. Holder, Jr.

against said Plaintiff, Shelby County, Alabama

(Pursuant to Rule 4(a) of the Federal Rules of Appellate Procedure a notice of appeal in a civil action must be filed within 30 days after the date of entry ofjudgment or 60 days if the United States or officer or agency is a party)

CLERK

Please mail copies of the above Notice of Appeal to the following at the addresses indicated:

 
 Shelby County, Ala. v. Holder, 270 F.R.D. 16 (2010)

270 F.R.D. 16 United States District Court,
District of Columbia.
SHELBY COUNTY, ALABAMA, Plaintiff, v.
Eric H. HOLDER, Jr., in his official capacity as Attorney General of the United States, Defendant.
Civil Action No. 10-0651(JDB). | Sept. 16, 2010.
Synopsis Background: County brought declaratory judgment action against the United States Attorney General, seeking determination that certain provisions of the Voting Rights Act were unconstitutional. County moved for summary judgment, and the United States and a civil rights organization, as intervenors, moved for additional discovery.
Holdings: The District Court, John D. Bates, J., held that:
[1] government was not entitled to conduct additional discovery on issue of county’s standing;
[2] government was not entitled to conduct additional discovery on issue of county’s eligibility for bailout under the Act; and
[3] government was not entitled to conduct additional discovery in order to gather information relating to the constitutionality of the preclearance provisions of the Act.
Intervenors’ motion denied.
Attorneys and Law Firms
*17 Brendan J. Morrissey, Thomas R. McCarthy, William S. Consovoy, Wiley Rein LLP, Washington, DC, for Plaintiff.
Richard Alan Dellheim, Ernest Alan McFarland, Jared Michael Slade, Justin S. Weinstein-Tull, U.S. Department of Justice, Washington, DC, for Defendant.

Opinion

MEMORANDUM OPINION AND ORDER

JOHN D. BATES, District Judge.
Shelby County has sued Attorney General Eric Holder, seeking a declaratory judgment that Sections 4(b) and 5 of the Voting Rights Act (“VRA”), 42 U.S.C. §§ 1973b(b) and 1973c, are unconstitutional. Shortly after filing its complaint, Shelby County moved for summary judgment. The United States, as well as defendant-intervenors-a civil rights organization and a number of individuals-ask the Court to deny the motion as premature, or in the alternative to grant discovery pursuant to Federal Rule of Civil Procedure 56(f).1 The Court heard oral argument on *18 defendant’s request on September 10, 2010.2

1

Neither the government nor defendant-intervenors have

offered any argument for why Shelby County’s motion

is premature. Indeed, a motion for summary judgment

may be brought “at any time until 30 days after the

close of all discovery.” Fed.R.Civ.P. 56(c)(1)(A).

Accordingly, the Court will discuss only the request for

discovery.

2

A final transcript of the September 10 hearing is not yet

available. Accordingly, the Court is unable to offer

direct citations to the oral argument.

Summary judgment is appropriate when the pleadings and the evidence demonstrate that “there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c)(2). The party seeking summary judgment bears the initial responsibility of demonstrating the absence of a genuine dispute of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The moving party may successfully support its motion by identifying those portions of “the pleadings, the discovery and disclosure materials on file, and any affidavits” which it believes demonstrate the absence of a genuine issue of material fact. Fed.R.Civ.P. 56(c)(2); see also Celotex, 477 U.S. at 323, 106 S.Ct. 2548.
1

Shelby County, Ala. v. Holder, 270 F.R.D. 16 (2010)
[1] If a party opposing a motion for summary judgment “shows by affidavit that, for specified reasons, it cannot present facts essential to justify its opposition, the court may ... order a continuance to enable affidavits to be obtained, depositions to be taken, or other discovery to be undertaken.” Fed.R.Civ.P. 56(f). “The purpose of Rule 56(f) is to prevent ‘railroading’ the non-moving party through a premature motion for summary judgment before the non-moving party has had the opportunity to make full discovery.” 1443 Chapin St., LP v. PNC Bank, 258 F.R.D. 186, 187 (D.D.C.2009) (internal quotation marks omitted). But “[t]he Rule is not designed to allow ‘fishing expeditions,’ and [parties] must specifically explain what their proposed discovery would likely reveal and why that revelation would advance the [party’s] case.” Milligan v. Clinton, 266 F.R.D. 17, 18-19 (D.D.C.2010); see also Strang v. United States Arms Control & Disarmament Agency, 864 F.2d 859, 861 (D.C.Cir.1989) (a court “may deny a motion for summary judgment or order a continuance to permit discovery if the party opposing the motion adequately explains why, at that timepoint, it cannot present by affidavit facts needed to defeat the motion”).
Here, Defendants argue that they need discovery for three primary reasons: (1) to determine whether Shelby County has standing to bring suit; (2) to evaluate whether Shelby County may be eligible to “bail out” from the VRA’s requirements; and (3) to gather information relating to the VRA’s constitutionality. The Court takes each argument in turn.
1. Standing [2] To establish that it has standing to bring this suit, Shelby County offers that “[i]n the last ten years, [it] has sought preclearance numerous times, expended significant taxpayer dollars, time, and energy to meet its obligations under Section 5 of the VRA, and has had at least one election delayed in order to ensure compliance with the preclearance obligations of Section 5 of the VRA.” See Pl.’s Mot. for Summ. J. (“Pl.’s Mot.”) [Docket Entry 5], Decl. of Frank Ellis, at ¶ 7. The government responds that, without discovery, it “is unable to determine whether Plaintiff has, in fact, suffered injury in complying with Sections 4(b) and 5.” Gov’t’s Opp’n to Pl.’s Mot. for Summ. J. (“Gov’t’s Opp’n”) [Docket Entry 7], at 11. Hence, although the government has not yet contested Shelby County’s standing, it requests discovery in order to evaluate whether it will do so.

The government has not shown that it needs discovery to assess Shelby County’s standing. The government has offered no reason to doubt the veracity of Ellis’s declaration in support of standing. See Strang, 864 F.2d at 861 (“Without some reason to question the veracity of affiants ... [a party’s] desire to ‘test and elaborate’ affiants’ testimony [through Rule 56(f) discovery] falls short.”). And at oral argument, the government was unable to articulate any reason why a covered jurisdiction subject to Section 5’s preclearance requirement-such as Shelby County-would lack standing to bring this type of action.3 Thus, neither the government *19 nor defendant-intervenors have put forth “specified reasons” why discovery is necessary to evaluate Shelby County’s standing. See Fed.R.Civ.P. 56(f).

3

Indeed, in the related case of Laroque v. Holder, Civ.

A. No. 10-561 (D.D.C. June 14, 2010) (Gov’t’s Mem.

in Supp. of Mot. to Dismiss), the government has stated

that there is no “hindrance to [a covered jurisdiction’s]

assertion of any proper constitutional claim concerning

the application of Section 5.” Id. at 22.

2. Bailout [3] The government’s next argument in support of its discovery request stems from the “bailout” provision of Section 4(a) of the VRA, which “allow[s] jurisdictions with clean records to terminate their section 5 preclearance obligation.” Nw. Austin Mun. Util. Dist. No. One v. Mukasey (Nw. Austin I), 573 F.Supp.2d 221, 226 (D.D.C.2008) (three-judge court), rev’d on other grounds by --- U.S. ----, 129 S.Ct. 2504, 174 L.Ed.2d 140 (2009). Shelby County believes that it is not eligible for bailout. See Pl.’s Mem. in Supp. of Mot. for Summ. J. [Docket Entry 5], at 41 n. 8. The government does not really contest the specifics of Shelby County’s position, but states that it “does not presently know[ ] the degree to which Shelby County could meet or not meet each of the statutory bailout criteria under Section 4(a) of the [VRA].” Gov’t’s Opp’n at 10. The government suggests that if Shelby County is, in fact, eligible for bailout, granting that relief could obviate the need for any constitutional challenge. Accordingly, the government seeks discovery on this issue.4

4

Although the government did not press the point at oral

argument, the government’s motion asserts that, even if

Shelby County is correct in the reasons it recites for

2

Shelby County, Ala. v. Holder, 270 F.R.D. 16 (2010)

why it is ineligible for bailout, discovery should ensue because there may be additional reasons for ineligibility. See Gov’t’s Mot. at 10 (“Whether or not one or two bailout criteria might defeat bailout ... it is relevant for the Attorney General to be allowed to discover ... whether those are the only criteria that might keep Shelby County from bailing out, or whether there are other areas of potential non-compliance.”). That is hardly a justification to embark upon broad discovery.
Shelby County “has not,” however, “sought ‘bailout’ from coverage pursuant to Section 4(a) of the VRA.” Pl.’s Reply in Supp. of Mot. (“Pl.’s Reply”) [Docket Entry 14], at 2. And the government agreed at oral argument that neither it nor this Court could force Shelby County to accept bailout. Thus, further factual investigation on this point would reveal only whether Shelby County is eligible for relief that it explicitly has not sought. The parties have pointed to no authority, and the Court is unaware of any, that would support discovery under such circumstances.

3. Constitutionality of the VRA [4] Shelby County’s complaint seeks a declaratory judgment that Sections 4(b) and 5 of the VRA are unconstitutional. See Compl., Prayer ¶ 44(a). It does not request any relief specific to Shelby County itself. Accordingly, the county’s suit is properly deemed a facial challenge. See Doe v. Reed, --- U.S. ----, 130 S.Ct. 2811, 2817, 177 L.Ed.2d 493 (2010) (for a challenge to be facial, “[t]he important point is that plaintiffs’ claim and the relief that would follow ... reach beyond the particular circumstances of these plaintiffs”). Indeed, at oral argument Shelby County explicitly waived any as-applied challenge in this case.5

5

Defendant-intervenors have expressed concerns that in

prior cases challenging the constitutionality of the

VRA, plaintiffs have shifted between facial and

as-applied challenges as the case progressed. Their

fears that the same could happen here are unfounded.

The Court will permit no gamesmanship: Shelby

County insists that its challenge is facial, and the Court

will hold it to that assurance throughout the litigation.

Because Shelby County brings only a facial challenge to the VRA, discovery into that claim is unwarranted. As a three-judge court of this district recently noted, a court’s

role in resolving a facial challenge to the 2006 extension of the VRA is limited to assessing whether “the 2006 legislative record contain[s] sufficient evidence of contemporary discrimination in voting to justify Congress’s decision to subject covered jurisdictions to section 5 preclearance for another twenty-five years.” Nw. Austin I, 573 F.Supp.2d at 265. In other words, a court’s analysis “is limited to the actual evidence Congress considered.” Id. at 247. Because of this, no discovery is warranted in this case.6

6

The government cites the Supreme Court’s statement

that “the [VRA] imposes current burdens and must be

justified by current needs,” Nw. Austin Mun. Util. Dist.

No. One v. Holder (Nw. Austin II), ---U.S. ----, 129

S.Ct. 2504, 2512, 174 L.Ed.2d 140 (2009), as an

indication that this Court should order additional

discovery into present-day voting practices in Shelby

County. But nothing in the Supreme Court’s opinion

suggests that the “current needs” to which it referred

are anything other than those identified by Congress in

2006. Indeed, in Kimel v. Fla. Bd. of Regents, 528 U.S.

62, 120 S.Ct. 631, 145 L.Ed.2d 522 (2000)-a case that,

like this one, turned on whether Congress exceeded its

enforcement authority under the Fourteenth

Amendment-the Court assessed the constitutionality of

the Age Discrimination in Employment Act (“ADEA”)

solely on the record created by Congress twenty-five

years earlier. See id. at 89, 120 S.Ct. 631 (“Our

examination of the ADEA’s legislative record confirms

that Congress’ 1974 extension of the Act to the States

was an unwarranted response to a perhaps

inconsequential problem.”).

*20 The government protests that, in its summary judgment briefing, Shelby County has introduced county-specific facts that were not in the legislative record. See Gov’t’s Opp’n at 9; see also Pl.’s Statement of Mat’l Facts Not in Dispute [Docket Entry 5], at ¶¶ 4-5, 7-8. According to the government, “[w]ithout knowing the basis for the Plaintiff’s assertions, the data or methodologies underlying them, or other facts related to the Plaintiff’s assertions, the Attorney General cannot adequately respond to them.” Gov’t’s Opp’n at 9.
Shelby County has explained, however, that it offered these facts “merely to buttress its already strong claim for standing.” Pl.’s Reply at 13 n. 1. And the county acknowledged at oral argument that, when assessing the VRA’s facial constitutionality, the Court cannot rely on these facts, at least to the extent that they are not in the legislative record. Consistent with the above discussion,
3

Shelby County, Ala. v. Holder, 270 F.R.D. 16 (2010)
the Court agrees. Indeed, a contrary conclusion would be absurd. If the VRA’s facial constitutionality turns-even in part-on present-day facts outside the legislative record, then discovery could not even properly be limited to Shelby County alone. Rather, the Court would need to consider in its analysis evidence relating to every covered jurisdiction and subjurisdiction. No authority requires or permits the Court to undertake such a massive factual inquiry, extending well beyond the record on which Congress relied in extending the VRA in 2006.
The government and defendant-intervenors have also pointed to several cases to support their argument that discovery is warranted on Shelby County’s facial constitutional claim. They point, for example, to Northwest Austin I, where the plaintiff brought a constitutional challenge to the VRA, but the parties still engaged in extensive discovery. But in that case, plaintiff-in addition to its constitutional challenge-sought bailout under Section 4(b) of the VRA, and also presented “two arguments ... that could be construed as reflecting an as-applied challenge.” Nw. Austin I, 573 F.Supp.2d at 235. Shelby County has brought no such fact-dependent claims here. Defendant-intervenors also cite Nev. Dep’t of Human Resources v. Hibbs, 538 U.S. 721, 123 S.Ct. 1972, 155 L.Ed.2d 953 (2003), and Tennessee v. Lane, 541 U.S. 509, 124 S.Ct. 1978, 158 L.Ed.2d 820 (2004), for the proposition that in assessing whether Congress has exceeded its enforcement authority under the Fourteenth Amendment, “the [Supreme] Court has not always limited itself to the legislative record alone for evidence of discrimination.” Def.-Intervenors’ Opp’n to Pl.’s Mot. [Docket Entry 36], at 14. In those two cases, however, the Supreme Court merely referenced state laws and prior judicial opinions, and even then only to present the historical “backdrop” of the challenged legislation. Lane, 541 U.S. at 524, 124 S.Ct. 1978; see Hibbs, 538 U.S. at

729, 123 S.Ct. 1972. Those cases do not, therefore, stand for the proposition that extensive fact discovery is warranted to evaluate the facial constitutionality of congressional legislation. Indeed, at oral argument the Court asked if any counsel-who collectively have a very broad experience-could identify a case in which the Supreme Court decided the facial constitutionality of an act of Congress based on facts unique to the specific plaintiff bringing the lawsuit. None could. Yet that is the discovery the government and defendant-intervenors seek here.
*21 Evaluating the constitutionality of a congressional statute-especially one as storied as the VRA-is “the gravest and most delicate duty that this Court is called on to perform.” Nw. Austin II, 129 S.Ct. at 2513. The Court therefore must be both cautious and thorough. Nonetheless, the constitutionality of the VRA must rise or fall on the record that Congress created when it extended that act in 2006. Accordingly, it is hereby
ORDERED that [7] the government’s request for discovery pursuant to Federal Rule of Civil Procedure 56(f) is DENIED; and it is further
ORDERED that the government and defendant-intervenors shall file an opposition to [5] Shelby County’s motion for summary judgment by not later than November 15, 2010; Shelby County may file a reply in support of its motion by not later than December 15, 2010.
SO ORDERED.

4

 
 Case: 1:10-cv-651 As of: 06/13/2013 02:06 PM EDT 1 of 19
CLOSED,TYPE−E
U.S. District Court District of Columbia (Washington, DC) CIVIL DOCKET FOR CASE #: 1:10−cv−00651−JDB

SHELBY COUNTY, ALABAMA v. HOLDER Assigned to: Judge John D. Bates Case: 1:10−cv−00561−JDB Case in other court: USCA, 11−05256 Cause: 42:1973 Voting Rights Act
Plaintiff
SHELBY COUNTY, ALABAMA

Date Filed: 04/27/2010 Date Terminated: 10/13/2011 Jury Demand: None Nature of Suit: 890 Other Statutory Actions Jurisdiction: U.S. Government Defendant
represented by Bert W. Rein WILEY REIN LLP 1776 K Street, NW Washington, DC 20006 (202) 719−7000 Fax: (202) 719−7049 Email: brein@wrf.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Brendan J. Morrissey WILEY REIN LLP 1776 K Street, NW Washington, DC 20006 (202) 719−7000 Fax: (202) 719−7049 Email: bmorrissey@wileyrein.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Thomas R. McCarthy WILEY REIN LLP 1776 K Street, NW Washington, DC 20006 (202) 719−7000 x7476 Email: tmccarthy@wileyrein.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

William S. Consovoy WILEY REIN LLP 1776 K Street, NW Washington, DC 20006 (202) 719−7434 Email: wconsovoy@wileyrein.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

V.
Defendant
ERIC HIMPTON HOLDER, JR. In his official capacity as Attorney General of the United States

represented by Ernest Alan McFarland U.S. DEPARTMENT OF JUSTICE Civil Rights Division− Voting Section 950 Pennsylvania Ave, NW Washington, DC 20530 (202) 307−6552 Fax: (202) 307−3961 Email: ernest.a.mcfarland@usdoj.gov

Case: 1:10-cv-651 As of: 06/13/2013 02:06 PM EDT 2 of 19
LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jared Michael Slade U.S. DEPARTMENT OF JUSTICE Civil Rights Division 950 Pennsylvania Avenue, NW Washington, DC 20530 (202) 305−4733 Fax: (202) 307−3961 Email: jared.slade@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Justin S. Weinstein−Tull U.S. DEPARTMENT OF JUSTICE 950 Pennsylvania Avenue, NW NWB − Room 7145 Washington, DC 20530 (202) 353−0319 Fax: (202) 307−3961 Email: justin.weinstein−tull@usdoj.gov TERMINATED: 06/13/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard Alan Dellheim U.S. DEPARTMENT OF JUSTICE Civil Rights Division 950 Pennsylvania Avenue, NW Washington, DC 20530 (202) 305−1734 Fax: (202) 307−3961 Email: richard.dellheim@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Samuel Robert Bagenstos U.S. DEPARTMENT OF JUSTICE Office of the Assistant Attorney General 950 Pennsylvania Avenue, NW Room 5744 Washington, DC 20530 (202) 353−9065 Email: samuel.bagenstos@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Intervenor Defendant EARL CUNNINGHAM

represented by Kristen M. Clarke NAACP LEGAL DEFENSE &EDUCATIONAL FUND, INC. 1444 Eye Street, NW 10th Floor Washington, DC 20005 (202) 682−1300 Fax: (202) 682−1312 Email: kclarke@naacpldf.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark A. Posner

Case: 1:10-cv-651 As of: 06/13/2013 02:06 PM EDT 3 of 19

LAWYERS' COMMITTEE FOR CIVIL RIGHTS 1401 New York Avenue, NW Suite 400 Washington, DC 20005 (202) 662−8389 Fax: (202) 783−0857 Email: mposner@lawyerscommittee.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dale E. Ho AMERICAN CIVIL LIBERITES UNION 125 Broad St New York, NY 10013 (212) 965−2200 Email: dale.ho@aclu.org ATTORNEY TO BE NOTICED

Debo P. Adegbile NAACP LEGAL DEFENSE &EDUCATIONAL FUND, INC. 99 Hudson Street Suite 1600 New York, NY 10013 (212) 965−2249 Fax: (212) 226−7592 Email: dadegbile@naacpldf.org ATTORNEY TO BE NOTICED

John Payton NAACP LEGAL DEFENSE &EDUCATIONAL FUND, INC. 99 Hudson Street Suite 1600 New York, NY 10013 (212) 965−2200 Email: jpayton@naacpldf.org TERMINATED: 03/29/2012

Ryan P. Haygood NAACP LEGAL DEFENSE &EDUCATIONAL FUND, INC. 99 Hudson Street Suite 1600 New York, NY 10013 (212) 965−2200 Email: rhaygood@naacpldf.org ATTORNEY TO BE NOTICED

Samuel Spital SQUIRE, SANDERS &DEMPSEY, L.L.P. 30 Rockefeller Plaza 23rd Floor New York, NY 10112 (212) 872−9800 Fax: (212) 872−9815 Email: sspital@ssd.com PRO HAC VICE ATTORNEY TO BE NOTICED

Intervenor Defendant HARRY JONES

represented by Kristen M. Clarke (See above for address)

Case: 1:10-cv-651 As of: 06/13/2013 02:06 PM EDT 4 of 19

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mark A. Posner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dale E. Ho (See above for address) ATTORNEY TO BE NOTICED

Debo P. Adegbile (See above for address) ATTORNEY TO BE NOTICED

John Payton (See above for address) TERMINATED: 03/29/2012

Ryan P. Haygood (See above for address) ATTORNEY TO BE NOTICED

Samuel Spital (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Intervenor Defendant ALBERT JONES

represented by Kristen M. Clarke (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mark A. Posner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dale E. Ho (See above for address) ATTORNEY TO BE NOTICED

Debo P. Adegbile (See above for address) ATTORNEY TO BE NOTICED

John Payton (See above for address) TERMINATED: 03/29/2012

Ryan P. Haygood (See above for address) ATTORNEY TO BE NOTICED

Samuel Spital (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Intervenor Defendant ERNEST MONTGOMERY

represented by Kristen M. Clarke (See above for address)

Case: 1:10-cv-651 As of: 06/13/2013 02:06 PM EDT 5 of 19

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mark A. Posner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dale E. Ho (See above for address) ATTORNEY TO BE NOTICED

Debo P. Adegbile (See above for address) ATTORNEY TO BE NOTICED

John Payton (See above for address) TERMINATED: 03/29/2012

Ryan P. Haygood (See above for address) ATTORNEY TO BE NOTICED

Samuel Spital (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Intervenor Defendant ANTHONY VINES

represented by Kristen M. Clarke (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mark A. Posner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dale E. Ho (See above for address) ATTORNEY TO BE NOTICED

Debo P. Adegbile (See above for address) ATTORNEY TO BE NOTICED

John Payton (See above for address) TERMINATED: 03/29/2012

Ryan P. Haygood (See above for address) ATTORNEY TO BE NOTICED

Samuel Spital (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Intervenor Defendant WILLIAM WALKER

represented by Kristen M. Clarke (See above for address)

Case: 1:10-cv-651 As of: 06/13/2013 02:06 PM EDT 6 of 19

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mark A. Posner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dale E. Ho (See above for address) ATTORNEY TO BE NOTICED

Debo P. Adegbile (See above for address) ATTORNEY TO BE NOTICED

John Payton (See above for address) TERMINATED: 03/29/2012

Ryan P. Haygood (See above for address) ATTORNEY TO BE NOTICED

Samuel Spital (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Intervenor Defendant BOBBY PIERSON

represented by Arthur B. Spitzer AMERICAN CIVIL LIBERTIES UNION OF THE NATION'S CAPITAL 4301 Connecticut Avenue, NW Suite 434 Washington, DC 20008 (202) 457−0800 x113 Fax: (202) 457−0805 Email: artspitzer@gmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mark A. Posner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Laughlin McDonald AMERICAN CIVIL LIBERTIES UNION FOUNDATION, INC. 230 Peachtree Street, NW Suite 1440 Atlanta, GA 30303 (404) 523−2721 Fax: (404) 653−0331 Email: lmcdonald@aclu.org PRO HAC VICE ATTORNEY TO BE NOTICED

Meredith E.B. Bell−Platts UNITED STATES DEPARTMENT OF JUSTICE Voting Section Civil Rights Division 950 Pennsylvania Avenue, NW

Case: 1:10-cv-651 As of: 06/13/2013 02:06 PM EDT 7 of 19

Washington, DC 20530 (800) 253−3931 Fax: (202) 307−3961 Email: Meredith.Bell−Platts@usdoj.gov TERMINATED: 10/19/2010

Nancy Abudu AMERICAN CIVIL LIBERTIES UNION FOUNDATION INC 230 Peachtree Street NW Suite 1440 Atlanta, GA 30303 (404) 523−2721 Fax: (404) 653−0331 Email: nabudu@aclu.org PRO HAC VICE ATTORNEY TO BE NOTICED

Intervenor Defendant WILLIE GOLDSMITH, SR.

represented by Arthur B. Spitzer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mark A. Posner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Laughlin McDonald (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Meredith E.B. Bell−Platts (See above for address) TERMINATED: 10/19/2010

Nancy Abudu (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Intervenor Defendant MARY PAXTON−LEE

represented by Arthur B. Spitzer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mark A. Posner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Laughlin McDonald (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Meredith E.B. Bell−Platts (See above for address) TERMINATED: 10/19/2010

Nancy Abudu

Case: 1:10-cv-651 As of: 06/13/2013 02:06 PM EDT 8 of 19

(See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Intervenor Defendant KENNETH DUKES

represented by Arthur B. Spitzer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mark A. Posner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Laughlin McDonald (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Meredith E.B. Bell−Platts (See above for address) TERMINATED: 10/19/2010

Nancy Abudu (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Intervenor Defendant
ALABAMA STATE CONFERENCE OF THE NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, INC.

represented by Arthur B. Spitzer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Laughlin McDonald (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Mark A. Posner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nancy Abudu (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Meredith E.B. Bell−Platts (See above for address) TERMINATED: 10/19/2010

Intervenor Defendant BOBBY LEE HARRIS

represented by Mark A. Posner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Autumn C. Katz

Case: 1:10-cv-651 As of: 06/13/2013 02:06 PM EDT 9 of 19

DEWEY &LEBOEUF LLP 1301 Avenue of the Americas New York, NY 10019−6092 (212) 259−6410 Fax: (212) 259−6333 Email: akatz@dl.com TERMINATED: 05/15/2012 PRO HAC VICE ATTORNEY TO BE NOTICED

Daniel T. Stabile DEWEY &LEBOEUF LLP 1301 Avenue of the Americas New York, NY 10019−6092 (212) 259−6410 Fax: (212) 259−6333 PRO HAC VICE ATTORNEY TO BE NOTICED

David Cooper DEWEY &LEBOEUF LLP 1301 Avenue of the Americas New York, NY 10019−6092 (202) 259−6410 Fax: (212) 259−6333 Email: dcooper@dl.com PRO HAC VICE ATTORNEY TO BE NOTICED

John M. Nonna DEWEY &LEBOEUF LLP 1301 Avenue of the Americas New York, NY 10019−6092 (212) 259−6410 Fax: (212) 259−6333 PRO HAC VICE ATTORNEY TO BE NOTICED

Jon M. Greenbaum LAWYERS' COMMITTEE FOR CIVIL RIGHTS UNDER LAW 1401 New York Avenue, NW Suite 400 Washington, DC 20005 (202) 662−8325 Email: jgreenbaum@lawyerscommittee.org ATTORNEY TO BE NOTICED

Amicus
CONSTITUTIONAL ACCOUNTABILITY CENTER

represented by Judith Ellen Schaeffer CONSTITUTIONAL ACCOUNTABILITY CENTER 1200 18th Street, NW Suite 1002 Washington, DC 20036 (202) 296−6889 Fax: (202) 296−6895 Email: judith@theusconstitution.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed

# Docket Text

Case: 1:10-cv-651 As of: 06/13/2013 02:06 PM EDT 10 of 19

04/27/2010 04/27/2010 04/27/2010 04/29/2010 04/30/2010 06/08/2010
06/11/2010
06/22/2010
06/22/2010
06/22/2010
06/23/2010 06/24/2010 06/25/2010
06/28/2010 07/01/2010 07/01/2010 07/01/2010

1 COMPLAINT against ERIC H. HOLDER, JR ( Filing fee $ 350, receipt number 4616029261) filed by SHELBY COUNTY, ALABAMA. (Attachments: # 1 Civil Cover Sheet)(dr) (Entered: 04/27/2010)
SUMMONS (2) Issued as to U.S. Attorney, and U.S. Attorney General (dr) (Entered: 04/27/2010)
2 NOTICE OF RELATED CASE by SHELBY COUNTY, ALABAMA. Case related to Case No. 10−561. (dr) (Entered: 04/27/2010)
3 NOTICE of Appearance by Brendan J. Morrissey on behalf of SHELBY COUNTY, ALABAMA (Morrissey, Brendan) (Entered: 04/29/2010)
4 NOTICE of Appearance by Thomas R. McCarthy on behalf of SHELBY COUNTY, ALABAMA (McCarthy, Thomas) (Entered: 04/30/2010)
5 MOTION for Summary Judgment by SHELBY COUNTY, ALABAMA (Attachments: # 1 Text of Proposed Order Proposed Order, # 2 Declaration Declaration of Frank C. Ellis, Jr., # 3 Exhibit Exhibit A, # 4 Exhibit Exhibit B)(Consovoy, William) (Entered: 06/08/2010)
6 MOTION to Intervene by EARL CUNNINGHAM, HARRY JONES, ALBERT JONES, ERNEST MONTGOMERY, ANTHONY VINES, WILLIAM WALKER (Attachments: # 1 Memorandum in Support, # 2 Proposed Responsive Pleading, # 3 Text of Proposed Order)(znmw, ) (Entered: 06/14/2010)
7 Memorandum in opposition to re 5 MOTION for Summary Judgment filed by ERIC H. HOLDER, JR. (Attachments: # 1 Exhibit Declaration of Richard Dellheim, # 2 Exhibit December 1, 2006 Order, # 3 Exhibit March 16, 2007 Order, # 4 Text of Proposed Order)(Dellheim, Richard) (Entered: 06/22/2010)
8 NOTICE of Appearance by Arthur B. Spitzer on behalf of BOBBY PIERSON, WILLIE GOLDSMITH, SR, MARY PAXTON−LEE, KENNETH DUKES, ALABAMA STATE CONFERENCE OF THE NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, INC. (znmw, ) Modified spelling on 7/2/2010 (znmw, ). (Entered: 06/23/2010)
9 MOTION to Intervene as Defendants by ALABAMA STATE CONFERENCE OF THE NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, INC., KENNETH DUKES, WILLIE GOLDSMITH, SR, MARY PAXTON−LEE, BOBBY PIERSON (Attachments: # 1 Memorandum in Support, # 2 Proposed Responsive Pleading, # 3 Text of Proposed Order)(znmw, ) Modified spelling on 7/2/2010 (znmw, ). (Entered: 06/23/2010)
10 NOTICE of filing of Certificate of Service by ERIC H. HOLDER, JR re 7 Memorandum in Opposition, (Dellheim, Richard) (Entered: 06/23/2010)
11 RESPONSE re 9 MOTION to Intervene, 6 MOTION to Intervene filed by ERIC H. HOLDER, JR. (Attachments: # 1 Exhibit Unpublished Orders)(Dellheim, Richard) (Entered: 06/24/2010)
12 Memorandum in opposition to re 9 MOTION to Intervene, 6 MOTION to Intervene filed by SHELBY COUNTY, ALABAMA. (Attachments: # 1 Text of Proposed Order, # 2 Text of Proposed Order)(Consovoy, William) (Entered: 06/25/2010)
13 ANSWER to 1 Complaint by ERIC H. HOLDER, JR.(Dellheim, Richard) (Entered: 06/28/2010)
14 REPLY to opposition to motion re 5 MOTION for Summary Judgment filed by SHELBY COUNTY, ALABAMA. (Attachments: # 1 Text of Proposed Order)(Consovoy, William) (Entered: 07/01/2010)
18 MOTION to Intervene as a Defendant by BOBBY LEE HARRIS (Attachments: # 1 Memorandum in Support, # 2 Exhibit A, # 3 Text of Proposed Order)(dr) (Entered: 07/06/2010)
19 LCvR 7.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests NONE by BOBBY LEE HARRIS (dr) (Main Document 19

Case: 1:10-cv-651 As of: 06/13/2013 02:06 PM EDT 11 of 19

07/02/2010
07/02/2010
07/02/2010 07/13/2010 07/13/2010 07/16/2010
07/21/2010 07/23/2010 07/27/2010 07/28/2010 07/28/2010 08/24/2010 08/24/2010 08/25/2010 08/25/2010

replaced on 7/6/2010) (dr). (Entered: 07/06/2010)
15 APPLICANTS FOR INTERVENTION'S PROPOSED ANSWER to 1 Complaint by ALABAMA STATE CONFERENCE OF THE NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, INC., KENNETH DUKES, WILLIE GOLDSMITH, SR, MARY PAXTON−LEE, BOBBY PIERSON.(Spitzer, Arthur) Modified spelling on 7/2/2010 (znmw, ). (Entered: 07/02/2010)
16 REPLY to opposition to motion re 9 MOTION to Intervene filed by ALABAMA STATE CONFERENCE OF THE NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, INC., KENNETH DUKES, WILLIE GOLDSMITH, SR, MARY PAXTON−LEE, BOBBY PIERSON. (Spitzer, Arthur) Modified spelling on 7/2/2010 (znmw, ). (Entered: 07/02/2010)
17 REPLY to opposition to motion re 6 MOTION to Intervene filed by EARL CUNNINGHAM, ALBERT JONES, HARRY JONES, ERNEST MONTGOMERY, ANTHONY VINES, WILLIAM WALKER. (Clarke, Kristen) (Entered: 07/02/2010)
20 Memorandum in opposition to re 18 MOTION to Intervene filed by SHELBY COUNTY, ALABAMA. (Attachments: # 1 Text of Proposed Order)(Consovoy, William) (Entered: 07/13/2010)
21 RESPONSE re 18 MOTION to Intervene filed by ERIC H. HOLDER, JR. (Attachments: # 1 Exhibit Unpublished orders)(Dellheim, Richard) (Entered: 07/13/2010)
22 NOTICE of Appearance by Meredith E.B. Bell−Platts on behalf of ALABAMA STATE CONFERENCE OF THE NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, INC., KENNETH DUKES, WILLIE GOLDSMITH, SR, MARY PAXTON−LEE, BOBBY PIERSON (Bell−Platts, Meredith) (Entered: 07/16/2010)
23 REPLY to opposition to motion re 18 MOTION to Intervene filed by BOBBY LEE HARRIS. (znmw, ) (Entered: 07/21/2010)
24 NOTICE of Appearance by Kristen M. Clarke on behalf of EARL CUNNINGHAM, ALBERT JONES, HARRY JONES, ERNEST MONTGOMERY, ANTHONY VINES, WILLIAM WALKER (Clarke, Kristen) (Entered: 07/23/2010)
25 ENTERED IN ERROR..... APPLICANTS FOR INTERVENTION'S ANSWER to 1 Complaint by EARL CUNNINGHAM, ALBERT JONES, HARRY JONES, ERNEST MONTGOMERY, ANTHONY VINES, WILLIAM WALKER.(Clarke, Kristen) Modified on 7/28/2010 (dr). (Entered: 07/27/2010)
NOTICE OF CORRECTED DOCKET ENTRY: re 25 Answer to Complaint was entered in error because filing was done prematurely. The Motion to Intervene has not been ruled on yet. (dr) (Entered: 07/28/2010)
26 Applicants for Intervention's [PROPOSED] ANSWER to 1 Complaint by EARL CUNNINGHAM, ALBERT JONES, HARRY JONES, ERNEST MONTGOMERY, ANTHONY VINES, WILLIAM WALKER.(Clarke, Kristen) (Entered: 07/28/2010)
27 NOTICE of Appearance by Justin S. Weinstein−Tull on behalf of ERIC H. HOLDER, JR (Weinstein−Tull, Justin) (Entered: 08/24/2010)
28 NOTICE of Appearance by Ernest Alan McFarland on behalf of ERIC H. HOLDER, JR (McFarland, Ernest) (Entered: 08/24/2010)
29 ORDER granting 6 , 9 , 18 the pending motions to intervene. See text of Order for details. Signed by Judge John D. Bates on 8/25/2010. (lcjdb1) (Entered: 08/25/2010)
30 RESPONSE re 1 Complaint filed by EARL CUNNINGHAM, ALBERT JONES, HARRY JONES, ERNEST MONTGOMERY, ANTHONY VINES, WILLIAM WALKER. (dr) (Entered: 08/26/2010)

Case: 1:10-cv-651 As of: 06/13/2013 02:06 PM EDT 12 of 19

08/25/2010 08/25/2010 09/01/2010 09/03/2010 09/03/2010 09/08/2010
09/08/2010
09/09/2010 09/09/2010 09/09/2010
09/10/2010 09/10/2010
09/10/2010 09/16/2010

31 RESPONSE re 1 Complaint filed by ALABAMA STATE CONFERENCE OF THE NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, INC., KENNETH DUKES, WILLIE GOLDSMITH, SR, MARY PAXTON−LEE, BOBBY PIERSON. (dr) (Entered: 08/26/2010)
32 ANSWER to 1 Complaint by BOBBY LEE HARRIS.(dr) (Entered: 08/26/2010)
MINUTE ORDER: On the Court's own motion, and upon consideration of the entire record herein, it is hereby ORDERED that the Court will hold a status conference in this action on September 10, 2010, at 2:00 p.m. in Courtroom 8. Signed by Judge John D. Bates on 9/1/2010. (lcjdb1) (Entered: 09/01/2010)
33 RESPONSE TO ORDER OF THE COURT re 29 Order on Motion to Intervene,,, Set/Reset Deadlines, Order, Set Hearings,, filed by ERIC H. HOLDER, JR. (McFarland, Ernest) (Entered: 09/03/2010)
34 RESPONSE TO ORDER OF THE COURT re 29 Order on Motion to Intervene,,, Set/Reset Deadlines filed by ERIC H. HOLDER, JR. (McFarland, Ernest) (Entered: 09/03/2010)
35 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Laughlin McDonald, :Firm− American Civil Liberties Union Foundation, Inc., :Address− 230 Peachtree Street NW, Suite 1440, Atlanta, Georgia 30303. Phone No. − 4045232721. Fax No. − 4046530331 by ALABAMA STATE CONFERENCE OF THE NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, INC., KENNETH DUKES, WILLIE GOLDSMITH, SR, MARY PAXTON−LEE, BOBBY PIERSON (Bell−Platts, Meredith) (Entered: 09/08/2010)
36 Memorandum in opposition to re 5 MOTION for Summary Judgment filed by ALABAMA STATE CONFERENCE OF THE NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, INC., EARL CUNNINGHAM, KENNETH DUKES, WILLIE GOLDSMITH, SR, BOBBY LEE HARRIS, ALBERT JONES, HARRY JONES, ERNEST MONTGOMERY, MARY PAXTON−LEE, BOBBY PIERSON, ANTHONY VINES, WILLIAM WALKER. (Attachments: # 1 Declaration, # 2 Text of Proposed Order)(Clarke, Kristen) (Entered: 09/08/2010)
37 NOTICE of Appearance by Jared Michael Slade on behalf of ERIC H. HOLDER, JR (Slade, Jared) (Entered: 09/09/2010)
38 NOTICE of Appearance by John Payton on behalf of EARL CUNNINGHAM, ALBERT JONES, HARRY JONES, ERNEST MONTGOMERY, ANTHONY VINES, WILLIAM WALKER (Payton, John) (Entered: 09/09/2010)
39 MOTION for Leave to Appear Pro Hac Vice DEBO P. ADEGBILE, RYAN P. HAYGOOD, and DALE E. HO as Counsel for Defendant Intervenors by EARL CUNNINGHAM, ALBERT JONES, HARRY JONES, ERNEST MONTGOMERY, ANTHONY VINES, WILLIAM WALKER (Attachments: # 1 Declaration of Debo P. Adegbile, # 2 Declaration of Ryan P. Haygood, # 3 Declaration of Dale E. Ho, # 4 Text of Proposed Order)(Payton, John) (Entered: 09/09/2010)
40 REPLY to opposition to motion re 5 MOTION for Summary Judgment filed by SHELBY COUNTY, ALABAMA. (Attachments: # 1 Text of Proposed Order)(Consovoy, William) (Entered: 09/10/2010)
MINUTE ORDER: Upon consideration of 35 , 39 the motions for leave for Laughlin McDonald, Debo P. Adegbile, Ryan P. Haygood, and Dale E. Ho to appear pro hac vice, and the entire record herein, it is hereby ORDERED that the motions are GRANTED. Signed by Judge John D. Bates on 9/10/2010. (lcjdb1) (Entered: 09/10/2010)
Minute Entry: Status Conference held on 9/10/2010 before Judge John D. Bates. (Court Reporter Bryan Wayne) (tb, ) (Entered: 09/13/2010)
41 MEMORANDUM OPINION &ORDER denying 7 defendant and 36 defendant−intervenors' request for discovery. See text of Memorandum Opinion &Order for details. Signed by Judge John D. Bates on 9/16/2010. (lcjdb1)

Case: 1:10-cv-651 As of: 06/13/2013 02:06 PM EDT 13 of 19

09/16/2010 09/17/2010 09/17/2010 10/19/2010 10/19/2010 10/27/2010
10/29/2010 10/29/2010

(Entered: 09/16/2010)
42 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Nancy Abudu, :Firm− American Civil Liberties Union Foundation, Inc., :Address− 230 Peachtree Street NW, Suite 1440, Atlanta, Georgia 30303. Phone No. − 4045232721. Fax No. − 4046530331 by ALABAMA STATE CONFERENCE OF THE NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, INC., KENNETH DUKES, WILLIE GOLDSMITH, SR, MARY PAXTON−LEE, BOBBY PIERSON (Bell−Platts, Meredith) (Entered: 09/16/2010)
43 Amended MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Nancy Abudu, :Firm− American Civil Liberties Union Foundation, Inc., :Address− 230 Peachtree Street NW, Suite 1440, Atlanta, Georgia 30303. Phone No. − 4045232721. Fax No. − 4046530331 by ALABAMA STATE CONFERENCE OF THE NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, INC., KENNETH DUKES, WILLIE GOLDSMITH, SR, MARY PAXTON−LEE, BOBBY PIERSON (Bell−Platts, Meredith) (Entered: 09/17/2010)
MINUTE ORDER: Upon consideration of 43 defendant−intervenors' motion for leave for Nancy Abudu to appear pro hac vice, and the entire record herein, it is hereby ORDERED that the motion is GRANTED. Signed by Judge John D. Bates on 9/17/2010. (lcjdb1) (Entered: 09/17/2010)
44 MOTION to Withdraw as Attorney by ALABAMA STATE CONFERENCE OF THE NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, INC., KENNETH DUKES, WILLIE GOLDSMITH, SR, MARY PAXTON−LEE, BOBBY PIERSON (Attachments: # 1 Text of Proposed Order)(Bell−Platts, Meredith) (Entered: 10/19/2010)
MINUTE ORDER: Upon consideration of 44 Meredith Bell−Platts's motion to withdraw as attorney for the Pierson defendant−intervenors, and the entire record herein, it is hereby ORDERED that the motion is GRANTED; and it is further ORDERED that the appearance of Meredith Bell−Platts as attorney for the Pierson defendant−intervenors in this case is hereby withdrawn. SO ORDERED. Signed by Judge John D. Bates on 10/19/10. (lcjdb1) (Entered: 10/19/2010)
45 TRANSCRIPT OF PROCEEDINGS before Judge John D. Bates held on 9/10/10; Page Numbers: 1 − 75. Date of Issuance:10/27/10. Court Reporter/Transcriber Bryan A. Wayne, Telephone number 202−354−3186, Court Reporter Email Address : bryanawayne@verizon.net.<P></P>For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi−page, condensed, CD or ASCII) may be purchased from the court reporter.<P>NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty−one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at ww.dcd.uscourts.gov.<P></P> Redaction Request due 11/17/2010. Redacted Transcript Deadline set for 11/29/2010. Release of Transcript Restriction set for 1/25/2011.(Wayne, Bryan) (Entered: 10/27/2010)
46 ORDER setting deadlines and motions hearing. See text of Order for details. Signed by Judge John D. Bates on 10/29/10. (lcjdb1) (Entered: 10/29/2010)
Set/Reset Deadlines/Hearings: The government's consolidated memorandum in opposition to plaintiff's motion for summary judgment and in support of its cross−motion for summary judgment is due by 11/15/2010. Defendant−intervenors' memoranda in opposition to plaintiff's motion for summary judgment and in support of their cross−motions for summary judgment are also due by 11/15/2010. Plaintiff's consolidated reply memorandum in support of its motion for summary judgment and in opposition to defendant's and defendant−intervenors' cross−motions for summary judgment is due by 12/13/2010. The government's reply memorandum in support of its cross−motion for summary judgment is due by 1/14/2011. The defendant−intervenors' reply memoranda in support of their cross−motions for summary judgmment are also due by 1/14/2011. A motions

Case: 1:10-cv-651 As of: 06/13/2013 02:06 PM EDT 14 of 19

11/15/2010
11/15/2010
11/15/2010 11/15/2010 11/15/2010 11/15/2010 11/15/2010 11/15/2010 11/15/2010 11/15/2010 11/15/2010

hearing is set for 2/2/2011 at 09:30 AM in Courtroom 8 before Judge John D. Bates. (lcjdb1) (Entered: 10/29/2010)
47 Cross MOTION for Summary Judgment by ALABAMA STATE CONFERENCE OF THE NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, INC., KENNETH DUKES, WILLIE GOLDSMITH, SR, MARY PAXTON−LEE, BOBBY PIERSON (Attachments: # 1 Memorandum in Support of Cross Motion for Summary Judgment and in Opposition to Plaintiffs' Motion for Summary Judgment, # 2 Text of Proposed Order)(McDonald, Laughlin) (Entered: 11/15/2010)
48 RESPONSE to Plaintiff's Statement of Facts filed by ALABAMA STATE CONFERENCE OF THE NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, INC., EARL CUNNINGHAM, KENNETH DUKES, WILLIE GOLDSMITH, SR, BOBBY LEE HARRIS, ERIC H. HOLDER, JR, ALBERT JONES, HARRY JONES, ERNEST MONTGOMERY, MARY PAXTON−LEE, BOBBY PIERSON, ANTHONY VINES, WILLIAM WALKER. (Posner, Mark) (Entered: 11/15/2010)
49 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− David Cooper, :Firm− Dewey &LeBoeuf LLP, :Address− 1301 Avenue of the Americas, New York, NY 10019. Phone No. − 212.259.6410. Fax No. − 212.259.6333 by BOBBY LEE HARRIS (Posner, Mark) (Entered: 11/15/2010)
50 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Autumn C. Katz, :Firm− Dewey &LeBoeuf LLP, :Address− 1301 Avenue of the Americas, New York, NY 10019. Phone No. − 212.259.6176. Fax No. − 212.259.6333 by BOBBY LEE HARRIS (Posner, Mark) (Entered: 11/15/2010)
51 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− John M. Nonna, :Firm− Dewey &LeBoeuf LLP, :Address− 1301 Avenue of the Americas, New York, NY 10019. Phone No. − 212.259.8311. Fax No. − 212.259.6333 by BOBBY LEE HARRIS (Posner, Mark) (Entered: 11/15/2010)
52 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Daniel T. Stabile, :Firm− Dewey &LeBoeuf LLP, :Address− 1301 Avenue of the Americas, New York, NY 10019. Phone No. − 212.259.7099. Fax No. − 212.259.6333 by BOBBY LEE HARRIS (Posner, Mark) (Entered: 11/15/2010)
53 Memorandum in opposition to re 5 MOTION for Summary Judgment filed by ERIC H. HOLDER, JR. (Attachments: # 1 Statement of Facts, # 2 Exhibit McCrary Declaration, # 3 Exhibit Berman Declaration, # 4 Text of Proposed Order)(Dellheim, Richard) (Entered: 11/15/2010)
54 MOTION for Summary Judgment by ERIC H. HOLDER, JR (Attachments: # 1 Memorandum in Support, # 2 Statement of Facts, # 3 Exhibit McCrary Declaration, # 4 Exhibit Berman Declaration, # 5 Text of Proposed Order)(Dellheim, Richard) (Entered: 11/15/2010)
55 MOTION for Summary Judgment by BOBBY LEE HARRIS (Attachments: # 1 Proposed Order, # 2 Memorandum in Support)(Posner, Mark) (Entered: 11/15/2010)
56 Memorandum in opposition to re 5 MOTION for Summary Judgment filed by BOBBY LEE HARRIS. (Posner, Mark) (Entered: 11/15/2010)
57 LARGE ADDITIONAL ATTACHMENT(S) Joint Statement of Material Facts As to Which There is No Genuine Issue by ALABAMA STATE CONFERENCE OF THE NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, INC., EARL CUNNINGHAM, KENNETH DUKES, WILLIE GOLDSMITH, SR, BOBBY LEE HARRIS, ALBERT JONES, HARRY JONES, ERNEST MONTGOMERY, MARY PAXTON−LEE, BOBBY PIERSON, ANTHONY VINES, WILLIAM WALKER 47 Cross MOTION for Summary Judgment filed by ALABAMA STATE CONFERENCE OF THE NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, INC., MARY PAXTON−LEE, KENNETH DUKES, WILLIE GOLDSMITH, SR., BOBBY PIERSON, 55 MOTION for Summary Judgment filed by BOBBY LEE

Case: 1:10-cv-651 As of: 06/13/2013 02:06 PM EDT 15 of 19

11/15/2010 11/15/2010 11/16/2010 11/16/2010 11/16/2010 11/16/2010 11/16/2010 11/17/2010 11/17/2010

HARRIS. (Posner, Mark) (Entered: 11/15/2010)
58 Cross MOTION for Summary Judgment by EARL CUNNINGHAM, ALBERT JONES, HARRY JONES, ERNEST MONTGOMERY, ANTHONY VINES, WILLIAM WALKER (Attachments: # 1 Memorandum in Support, # 2 Declaration Declaration of Ernest Montgomery, # 3 Text of Proposed Order)(Clarke, Kristen) Modified on 1/18/2011 to enchance docket text (jf, ). (Entered: 11/15/2010)
59 Memorandum in opposition to re 5 MOTION for Summary Judgment filed by EARL CUNNINGHAM, ALBERT JONES, HARRY JONES, ERNEST MONTGOMERY, ANTHONY VINES, WILLIAM WALKER. (Attachments: # 1 Declaration Declaration of Ernest Montgomery, # 2 Text of Proposed Order)(Clarke, Kristen) (Entered: 11/16/2010)
MINUTE ORDER: Upon consideration of 49 the motion for admission pro hac vice of David G. Cooper and pursuant to Local Civil Rule 83.2(d), it is hereby ORDERED that the motion is GRANTED; and it is further ORDERED that the Clerk of the Court shall enter the appearance of David G. Cooper on behalf of Defendant−Intervenor Bobby Lee Harris. Signed by Judge John D. Bates on 11/16/10. (lcjdb1) (Entered: 11/16/2010)
MINUTE ORDER: Upon consideration of 50 the motion for admission pro hac vice of Autumn C. Katz and pursuant to Local Civil Rule 83.2(d), it is hereby ORDERED that the motion is GRANTED; and it is further ORDERED that the Clerk of the Court shall enter the appearance of Autumn C. Katz on behalf of Defendant−Intervenor Bobby Lee Harris. Signed by Judge John D. Bates on 11/16/10. (lcjdb1) (Entered: 11/16/2010)
MINUTE ORDER: Upon consideration of 51 the motion for admission pro hac vice of John M. Nonna and pursuant to Local Civil Rule 83.2(d), it is hereby ORDERED that the motion is GRANTED; and it is further ORDERED that the Clerk of the Court shall enter the appearance of John M. Nonna on behalf of Defendant−Intervenor Bobby Lee Harris. Signed by Judge John D. Bates on 11/16/10. (lcjdb1) (Entered: 11/16/2010)
MINUTE ORDER: Upon consideration of 52 the motion for admission pro hac vice of Daniel T. Stabile and pursuant to Local Civil Rule 83.2(d), it is hereby ORDERED that the motion is GRANTED; and it is further ORDERED that the Clerk of the Court shall enter the appearance of Daniel T. Stabile on behalf of Defendant−Intervenor Bobby Lee Harris. Signed by Judge John D. Bates on 11/16/10. (lcjdb1) (Entered: 11/16/2010)
60 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Samuel Spital, :Firm− Squire, Sanders &Dempsey, L.L.P., :Address− 30 Rockefeller Plaza, 23rd Floor New York, NY 10112. Phone No. − 212.872.9800. Fax No. − 212.872.9815 by EARL CUNNINGHAM, ALBERT JONES, HARRY JONES, ERNEST MONTGOMERY, ANTHONY VINES, WILLIAM WALKER (Attachments: # 1 Declaration of Samuel Spital, # 2 Text of Proposed Order)(Clarke, Kristen) (Entered: 11/16/2010)
MINUTE ORDER: Upon consideration of 60 the motion for admission pro hac vice of Samuel Spital and pursuant to Local Civil Rule 83.2(d), it is hereby ORDERED that the motion is GRANTED; and it is further ORDERED that the Clerk of Court shall enter the appearance of Samuel Spital on behalf of Defendant−Intervenors Earl Cunningham, Harry Jones, Albert Jones, Ernest Montgomery, Anthony Vines, and William Walker. SO ORDERED. Signed by Judge John D. Bates on 11/17/10. (lcjdb1) (Entered: 11/17/2010)
61 NOTICE of Lodging of Legislative History Documents by ALABAMA STATE CONFERENCE OF THE NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, INC., EARL CUNNINGHAM, KENNETH DUKES, WILLIE GOLDSMITH, SR, BOBBY LEE HARRIS, ERIC H. HOLDER, JR, ALBERT JONES, HARRY JONES, ERNEST MONTGOMERY, MARY PAXTON−LEE, BOBBY PIERSON, ANTHONY VINES, WILLIAM WALKER re 54 MOTION for Summary Judgment, 47 Cross MOTION for Summary Judgment, 58 Cross MOTION for Summary Judgment and Opposition to Plaintiff's Summary Judgment Motion, 55 MOTION for Summary

Case: 1:10-cv-651 As of: 06/13/2013 02:06 PM EDT 16 of 19

11/22/2010 11/22/2010 11/22/2010
11/22/2010 12/13/2010 12/13/2010 01/14/2011 01/14/2011
01/14/2011 01/19/2011 01/19/2011
01/24/2011

Judgment (Posner, Mark) (Entered: 11/17/2010)
62 NOTICE of Appearance by Bert W. Rein on behalf of SHELBY COUNTY, ALABAMA (Rein, Bert) (Entered: 11/22/2010)
63 MOTION for Leave to File Amicus by CONSTITUTIONAL ACCOUNTABILITY CENTER (Attachments: # 1 Proposed Amicus Brief, # 2 Text of Proposed Order)(rdj) (Entered: 11/22/2010)
MINUTE ORDER: Upon consideration of 63 the unopposed motion of the Constitutional Accountability Center for leave to file an amicus curiae brief in support of defendant and defendant−intervenors, and the entire record herein, it is hereby ORDERED that the motion is GRANTED; and it is further ORDERED that the brief of the Constitutional Accountability Center as amicus curiae in support of defendants and defendant−intervenors is hereby accepted and deemed filed as of this date. SO ORDERED. Signed by Judge John D. Bates on 11/22/10. (lcjdb1) (Entered: 11/22/2010)
64 AMICUS BRIEF by CONSTITUTIONAL ACCOUNTABILITY CENTER. (jf, ) (Entered: 11/23/2010)
65 REPLY to opposition to motion re 5 MOTION for Summary Judgment filed by SHELBY COUNTY, ALABAMA. (Attachments: # 1 Statement of Facts, # 2 Text of Proposed Order)(Consovoy, William) (Entered: 12/13/2010)
66 Memorandum in opposition to re 54 MOTION for Summary Judgment, 47 Cross MOTION for Summary Judgment, 58 Cross MOTION for Summary Judgment and Opposition to Plaintiff's Summary Judgment Motion, 55 MOTION for Summary Judgment filed by SHELBY COUNTY, ALABAMA. (Attachments: # 1 Statement of Facts, # 2 Text of Proposed Order)(Consovoy, William) (Entered: 12/13/2010)
67 REPLY to opposition to motion re 54 MOTION for Summary Judgment filed by ERIC H. HOLDER, JR. (Attachments: # 1 Declaration Brinegar Declaration, # 2 Declaration Berman Supplemental Declaration)(Weinstein−Tull, Justin) (Entered: 01/14/2011)
68 ENTERED IN ERROR.....REPLY to opposition to motion re 58 Cross MOTION for Summary Judgment filed by ALABAMA STATE CONFERENCE OF THE NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, INC., EARL CUNNINGHAM, KENNETH DUKES, WILLIE GOLDSMITH, SR, ALBERT JONES, HARRY JONES, ERNEST MONTGOMERY, MARY PAXTON−LEE, BOBBY PIERSON, ANTHONY VINES, WILLIAM WALKER. (Clarke, Kristen) Modified on 1/18/2011 to enhance docket text (jf, ). Modified on 1/19/2011 (dr). (Entered: 01/14/2011)
69 REPLY to opposition to motion re 55 MOTION for Summary Judgment filed by BOBBY LEE HARRIS. (Posner, Mark) (Entered: 01/14/2011)
NOTICE OF CORRECTED DOCKET ENTRY: re 68 Reply to opposition to Motion, was entered in error because the title of the document does not coincide with the Docket Entry, and the selected filers are incorrect. Counsel has been instructed to refile said pleading. (dr) (Entered: 01/19/2011)
70 REPLY to opposition to motion re 47 Cross MOTION for Summary Judgment, 58 Cross MOTION for Summary Judgment CONSOLIDATED REPLY MEMORANDUM OF POINTS AND AUTHORITIES OF CUNNINGHAM DEFENDANT−INTERVENORS AND PIERSON DEFENDANT−INTERVENORS IN SUPPORT OF CROSS−MOTION FOR SUMMARYJUDGMENT filed by EARL CUNNINGHAM, ALBERT JONES, HARRY JONES, ERNEST MONTGOMERY, ANTHONY VINES, WILLIAM WALKER. (Clarke, Kristen) (Entered: 01/19/2011)
MINUTE ORDER: On the Court's own motion, and upon consideration of the entire record herein, it is hereby ORDERED as follows. At the motions hearing on February 2, 2011 at 9:30 AM, the Court will hear argument only from plaintiff, defendant, and the three defendant−intervenors in this case. The Court will not hear argument from any amici who have filed briefs with the Court. The Court will hear first from plaintiff, then from defendant, then from defendant−intervenors, and then

Case: 1:10-cv-651 As of: 06/13/2013 02:06 PM EDT 17 of 19

01/26/2011 02/01/2011 02/02/2011
02/04/2011
02/04/2011 02/16/2011 02/16/2011

plaintiff's rebuttal, if any. Plaintiff shall have a total of one (1) hour to present its initial argument, and fifteen (15) minutes for rebuttal. Defendant shall have a total of forty−five (45) minutes, and the three defendant−intervenors shall have a total of thirty (30) minutes, which they may apportion among themselves as they see fit. SO ORDERED. Signed by Judge John D. Bates on 1/24/11. (lcjdb1) (Entered: 01/24/2011)
MINUTE ORDER: On the Court's own motion, and upon consideration of the entire record herein, it is hereby ORDERED that the motions hearing currently scheduled for Wednesday, February 2, 2011 at 9:30 AM will be held in Ceremonial Courtroom 20 on the sixth floor, not in Courtroom 8 on the fourth floor, as previously scheduled. Signed by Judge John D. Bates on 1/26/11. (lcjdb1) (Entered: 01/26/2011)
71 NOTICE of Appearance by Samuel Robert Bagenstos on behalf of ERIC H. HOLDER, JR (Bagenstos, Samuel) (Entered: 02/01/2011)
Minute Entry: Motion Hearing held on 2/2/2011 re 47 Cross MOTION for Summary Judgment filed by ALABAMA STATE CONFERENCE OF THE NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, INC., MARY PAXTON−LEE, KENNETH DUKES, WILLIE GOLDSMITH, SR., BOBBY PIERSON, 58 Cross MOTION for Summary Judgment filed by ERNEST MONTGOMERY, HARRY JONES, ALBERT JONES, ANTHONY VINES, EARL CUNNINGHAM, WILLIAM WALKER, 54 MOTION for Summary Judgment filed by ERIC H. HOLDER, JR., 55 MOTION for Summary Judgment filed by BOBBY LEE HARRIS, 5 MOTION for Summary Judgment filed by SHELBY COUNTY, ALABAMA before Judge John D. Bates: Motions heard and taken under advisement. (Court Reporter Bryan Wayne.) (tb, ) (Entered: 02/02/2011)
MINUTE ORDER: On the Court's own motion, and upon consideration of the arguments of counsel at the February 2, 2011 hearing and the entire record herein, it is hereby ORDERED that the parties shall submit additional briefing by not later than February 16, 2011, which shall be limited to the following question: in considering the reauthorization of Section 5 of the Voting Rights Act in 2006, was it "rational in both practice and theory," South Carolina v. Katzenbach, 383 U.S. 301, 330 (1966), for Congress to preserve the existing coverage formula in Section 4(b) of the Act? In answering this question, the parties are strongly encouraged to point to specific instances in the legislative record that support their position. The parties are also encouraged to address each aspect of the question separately −− that is, to explain both why Section 4(b) is or is not rational "in practice" and why Section 4(b) is or is not rational "in theory." Plaintiff's memorandum addressing this question shall not exceed fifteen (15) pages in length, and defendant's memorandum addressing this question also shall not exceed fifteen (15) pages in length. Each defendant−intervenor may file its own memorandum addressing this question, which shall not exceed seven (7) pages in length; defendant−intervenors are, however, strongly encouraged to file a joint memorandum, not to exceed fifteen (15) pages in length, in order to avoid unnecessary duplication. SO ORDERED. Signed by Judge John D. Bates on 2/4/11.(lcjdb1) (Entered: 02/04/2011)
Set/Reset Deadlines: The additional briefing required by the Court's 2/4/2011 Minute Order is due by 2/16/2011. (lcjdb1) (Entered: 02/04/2011)
72 MEMORANDUM re Order,,,,,, by BOBBY LEE HARRIS. (Posner, Mark) (Entered: 02/16/2011)
73 SUPPLEMENTAL MEMORANDUM to re 47 Cross MOTION for Summary Judgment, 58 Cross MOTION for Summary Judgment CONSOLIDATED SUPPLEMENTAL MEMORANDUM OF POINTS AND AUTHORITIES OF CUNNINGHAM AND PIERSON DEFENDANT−INTERVENORS IN SUPPORT OF CROSS MOTIONS FOR SUMMARY JUDGMENT filed by EARL CUNNINGHAM, ALBERT JONES, HARRY JONES, ERNEST MONTGOMERY, ANTHONY VINES, WILLIAM WALKER. (Clarke, Kristen) (Entered: 02/16/2011)

Case: 1:10-cv-651 As of: 06/13/2013 02:06 PM EDT 18 of 19

02/16/2011 02/16/2011 02/17/2011
06/15/2011 06/16/2011 07/15/2011 08/03/2011 09/09/2011 09/14/2011 09/21/2011 09/21/2011 09/23/2011 09/26/2011

74 SUPPLEMENTAL MEMORANDUM re 65 REPLY to opposition to motion, and 66 Memorandum in opposition filed by SHELBY COUNTY, ALABAMA. (Consovoy, William) Modified on 2/17/2011 to create relationship and add link (dr). (Entered: 02/16/2011)
75 SUPPLEMENTAL MEMORANDUM re Order by ERIC H. HOLDER, JR. (Dellheim, Richard) Modified on 2/17/2011 to edit text (dr). (Entered: 02/16/2011)
76 TRANSCRIPT OF PROCEEDINGS before Judge John D. Bates held on 2/2/11; Page Numbers: 1 − 144. Date of Issuance:2/17/11. Court Reporter/Transcriber Bryan A. Wayne, Telephone number 202−354−3186, Court Reporter Email Address : bryanawayne@verizon.net.<P></P>For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi−page, condensed, CD or ASCII) may be purchased from the court reporter.<P>NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty−one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at ww.dcd.uscourts.gov.<P></P> Redaction Request due 3/10/2011. Redacted Transcript Deadline set for 3/20/2011. Release of Transcript Restriction set for 5/18/2011.(Wayne, Bryan) (Entered: 02/17/2011)
77 NOTICE of Supplemental Information by ERIC H. HOLDER, JR re 54 MOTION for Summary Judgment, 53 Memorandum in Opposition (Attachments: # 1 Exhibit)(McFarland, Ernest) (Entered: 06/15/2011)
78 RESPONSE re 77 Notice (Other) filed by SHELBY COUNTY, ALABAMA. (Consovoy, William) (Entered: 06/16/2011)
79 NOTICE of Filing by SHELBY COUNTY, ALABAMA (Attachments: # 1 Exhibit Letter)(Consovoy, William) (Entered: 07/15/2011)
80 MOTION to Withdraw as Attorney by KRISTEN CLARKE by EARL CUNNINGHAM, ALBERT JONES, HARRY JONES, ERNEST MONTGOMERY, ANTHONY VINES, WILLIAM WALKER (Attachments: # 1 Text of Proposed Order, # 2 Certificate of Service)(Clarke, Kristen) (Entered: 08/03/2011)
81 NOTICE of Supplemental Information by ERIC H. HOLDER, JR re 67 Reply to opposition to Motion, 54 MOTION for Summary Judgment, 53 Memorandum in Opposition, 77 Notice (Other) (Attachments: # 1 Exhibit Entered and Proposed Bailout Consent Decrees)(Dellheim, Richard) (Entered: 09/09/2011)
82 NOTICE OF RELATED CASE by ERIC H. HOLDER, JR. Case related to Case No. 1:11−cv−01559−ABJ. (Dellheim, Richard) (Entered: 09/14/2011)
83 MEMORANDUM OPINION. Signed by Judge John D. Bates on 9/21/11. (lcjdb1) (Entered: 09/21/2011)
84 ORDER granting 54 the Attorney General's motion for summary judgment and 47 , 55 , 58 the motions for summary judgment filed by defendant−intervenors and denying 5 Shelby County's motion for summary judgment. See text of Order and accompanying Memorandum Opinion for details. Signed by Judge John D. Bates on 9/21/11. (lcjdb1) (Entered: 09/21/2011)
85 NOTICE OF APPEAL as to 83 Memorandum &Opinion, 84 Order, by SHELBY COUNTY, ALABAMA. Filing fee $ 455, receipt number 0090−2675052. Fee Status: Fee Paid. Parties have been notified. (Consovoy, William) (Entered: 09/23/2011)
86 Transmission of the Notice of Appeal, Order Appealed, and Docket Sheet to US Court of Appeals. The Court of Appeals fee was paid this date re 85 Notice of Appeal. (dr) (Entered: 09/26/2011)

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09/27/2011 03/29/2012 05/15/2012 06/08/2012 06/13/2012 07/12/2012

USCA Case Number 11−5256 for 85 Notice of Appeal filed by SHELBY COUNTY, ALABAMA. (kb, ) (Entered: 09/27/2011)
87 NOTICE OF DEATH OF COUNSEL JOHN PAYTON by EARL CUNNINGHAM, ALBERT JONES, HARRY JONES, ERNEST MONTGOMERY, ANTHONY VINES, WILLIAM WALKER (Haygood, Ryan) (Entered: 03/29/2012)
88 NOTICE OF WITHDRAWAL OF APPEARANCE as to BOBBY LEE HARRIS. Attorney Autumn C. Katz terminated. (Attachments: # 1 Text of Proposed Order, # 2 Certificate of Service)(Katz, Autumn) (Entered: 05/15/2012)
89 MOTION to Withdraw as Attorney Justin Weinstein−Tull by ERIC HIMPTON HOLDER, JR (Attachments: # 1 Text of Proposed Order)(Weinstein−Tull, Justin) (Entered: 06/08/2012)
ORDER granting 89 Motion to Withdraw as Attorney. Attorney Justin S. Weinstein−Tull terminated. Signed by Judge John D. Bates on 6/13/2012. (lcjdb1) (Entered: 06/13/2012)
90 MANDATE of USCA (certified copy) as to 85 Notice of Appeal to DC Circuit Court filed by SHELBY COUNTY, ALABAMA ; USCA Case Number 11−5256. Ordered and Adjudged that the judgment of the District Court appealed from in this cause is hereby affirmed, in accordance with the opinion of the court filed herein this date. (sth, ) (Entered: 07/12/2012)

 
 Shelby County, Ala. v. Holder, 679 F.3d 848 (2012)

679 F.3d 848 United States Court of Appeals,
District of Columbia Circuit.
SHELBY COUNTY, ALABAMA, Appellant v.
Eric H. HOLDER, Jr., in his Official Capacity as Attorney General of the United States, et al., Appellees.
No. 11–5256. | Argued Jan. 19, 2012. | Decided May 18, 2012.
Synopsis Background: County brought declaratory judgment action against United States Attorney General, seeking determination that Voting Rights Act’s preclearance requirement, which required that covered jurisdictions demonstrate proposed voting law changes were not discriminatory, was unconstitutional. United States and civil rights organization intervened. After intervenors’ motion for additional discovery was denied, 270 F.R.D. 16, parties cross-moved for summary judgment. The United States District Court for the District of Columbia, John D. Bates, J., 811 F.Supp.2d 424, entered summary judgment for Attorney General. County appealed.
Holdings: The Court of Appeals, Tatel, Circuit Judge, held that:
[1] Congress did not exceed its enumerated powers under Fifteenth Amendment when, in 2006, it reauthorized preclearance requirement of Voting Rights Act, and
[2] disparate geographic coverage of preclearance requirement was sufficiently related to targeted problem of discrimination in voting, as required for validity of preclearance requirement.
Affirmed.
Williams, Senior Circuit Judge, filed dissenting opinion.
*852 Appeal from the United States District Court for the District of Columbia (No. 1:10–cv–00651).

Attorneys and Law Firms
Bert W. Rein argued the cause for appellant. With him on the briefs were William S. Consovoy, Thomas R. McCarthy, and Brendan J. Morrissey.
John C. Neiman Jr., Solicitor General, Office of the Attorney General for the State of Alabama, and Robert D. Tambling, Assistant Attorney General, were on the brief for amicus curiae State of Alabama in support of appellant.
Thomas C. Horne, Attorney General, Office of the Attorney General for the State of Arizona, David R. Cole, Solicitor General, Michele L. Forney and James E. Barton II, Assistant Attorneys General, and Samuel S. Olens, Attorney General, Office of the Attorney General of the State of Georgia, were on the brief for amici curiae States of Arizona and Georgia.
Steven J. Lechner was on the brief as amicus curiae Mountain States Legal Foundation in support of appellant.
Sarah E. Harrington, Attorney, U.S. Department of Justice, argued the cause for appellee. With her on the brief were Ronald C. Machen Jr., U.S. Attorney, and Diana K. Flynn and Linda F. Thome, Attorneys.
Eric T. Schneiderman, Attorney General, Office of the Attorney General for the State of New York, Barbara D. Underwood, Solicitor General. Jim Hood, Attorney General, Office of the Attorney General for the State of Mississippi, and Kamala D. Harris, Attorney General, Office of the Attorney General for the State of California, were on the brief for amici curiae New York, et al., in support of appellees.
John Payton, Debo P. Adegbile, Elise C. Boddie, Ryan P. Haygood, Dale E. Ho, Natasha M. Korgaonkar, Arthur B. Spitzer, Jon M. Greenbaum, and John M. Nonna were on the brief for intervenors-appellees Earl Cunningham, et al., in support of appellees.
Deborah N. Archer and Aderson B. Francois were on the brief for amicus curiae The New York Law School Racial Justice Project in support of appellee.
Elizabeth B. Wydra was on the brief for amicus curiae Constitutional Accountability Center in support of appellees.
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Shelby County, Ala. v. Holder, 679 F.3d 848 (2012)
Before: TATEL and GRIFFITH, Circuit Judges, and WILLIAMS, Senior Circuit Judge.
Opinion
Opinion for the Court filed by Circuit Judge TATEL.
Dissenting opinion filed by Senior Circuit Judge WILLIAMS.
TATEL, Circuit Judge:
**371 In Northwest Austin Municipal Utility District No. One v. Holder, 557 U.S. 193, 129 S.Ct. 2504, 174 L.Ed.2d 140 (2009), the Supreme Court raised serious questions about the continued constitutionality of section 5 of the Voting Rights Act of 1965. Section 5 prohibits certain “covered jurisdictions” from making any change in their voting procedures without first demonstrating **372*853 to either the Attorney General or a three-judge district court in Washington that the change “neither has the purpose nor will have the effect of denying or abridging the right to vote on account of race or color.” 42 U.S.C. § 1973c(a). The Supreme Court warned that the burdens imposed by section 5 may no longer be justified by current needs and that its geographic coverage may no longer sufficiently relate to the problem it targets. Although the Court had no occasion to resolve these questions, they are now squarely before us. Shelby County, Alabama, a covered jurisdiction, contends that when Congress reauthorized section 5 in 2006, it exceeded its enumerated powers. The district court disagreed and granted summary judgment for the Attorney General. For the reasons set forth in this opinion, we affirm.
I.
The Framers of our Constitution sought to construct a federal government powerful enough to function effectively yet limited enough to preserve the hard-earned liberty fought for in the War of Independence. They feared not state government, but centralized national government, long the hallmark of Old World monarchies. As a result, “[t]he powers delegated by the ... Constitution

to the federal government, are few and defined,” while “[t]hose which are to remain in the State governments are numerous and indefinite.” The Federalist No. 45 (James Madison). Close to the people, state governments would protect their liberties.
But the experience of the nascent Republic, divided by slavery, taught that states too could threaten individual liberty. So after the Civil War, the Reconstruction Amendments were added to the Constitution to limit state power. Adopted in 1865, the Thirteenth Amendment prohibited involuntary servitude. Adopted three years later, the Fourteenth Amendment prohibited any state from “depriv[ing] any person of life, liberty, or property, without due process of law” or “deny[ing] to any person within its jurisdiction the equal protection of the laws,” and granted Congress “power to enforce” its provisions “by appropriate legislation.” U.S. Const. amend. XIV. Finally, the Fifteenth Amendment declared that “[t]he right of citizens ... to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude” and vested Congress with “power to enforce this article by appropriate legislation.” U.S. Const. amend. XV.
Following Reconstruction, however, “the blight of racial discrimination in voting ... infected the electoral process in parts of our country for nearly a century.” South Carolina v. Katzenbach, 383 U.S. 301, 308, 86 S.Ct. 803, 15 L.Ed.2d 769 (1966). As early as 1890, “the States of Alabama, Georgia, Louisiana, Mississippi, North Carolina, South Carolina, and Virginia” began employing tests and devices “specifically designed to prevent Negroes from voting.” Id. at 310, 86 S.Ct. 803. Among the most notorious devices were poll taxes, literacy tests, grandfather clauses, and property qualifications.See Shelby Cnty. v. Holder, 811 F.Supp.2d 424, 428 (D.D.C.2011); see also Katzenbach, 383 U.S. at 310–11, 86 S.Ct. 803. Also widely employed, both immediately following Reconstruction and again in the mid-twentieth century, were “laws designed to dilute black voting strength,” including laws that “gerrymandered election districts, instituted at-large elections, annexed or deannexed land ... and required huge bonds of officeholders.” Shelby Cnty., 811 F.Supp.2d at 429 (internal quotation marks omitted).
The courts and Congress eventually responded. The Supreme Court struck **373*854 down grandfather clauses, Guinn v. United States, 238 U.S. 347, 35 S.Ct. 926, 59 L.Ed. 1340 (1915), and white primaries, Smith v. Allwright, 321 U.S. 649, 64 S.Ct. 757, 88 L.Ed. 987
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(1944). Congress “ enact [ed] civil rights legislation in 1957, 1960, and 1964, which sought to ‘facilitat[e] case-by-case litigation against voting discrimination.’ ” Shelby Cnty., 811 F.Supp.2d at 430 (alteration in original) (quoting Katzenbach, 383 U.S. at 313, 86 S.Ct. 803). But Congress soon determined that such measures were inadequate: case-by-case litigation, in addition to being expensive, was slow—slow to come to a result and slow to respond once a state switched from one discriminatory device to the next—and thus had “done little to cure the problem of voting discrimination.” Katzenbach, 383 U.S. at 313, 86 S.Ct. 803. Determined to “rid the country of racial discrimination in voting,” id. at 315, 86 S.Ct. 803, Congress passed the Voting Rights Act of 1965.
[1] Unlike prior legislation, the 1965 Act combined a permanent, case-by-case enforcement mechanism with a set of more stringent, temporary remedies designed to target those areas of the country where racial discrimination in voting was concentrated. Section 2, the Act’s main permanent provision, forbids any “standard, practice, or procedure” that “results in a denial or abridgment of the right of any citizen of the United States to vote on account of race or color.” 42 U.S.C. § 1973(a). Applicable nationwide, section 2 enables individuals to bring suit against any state or jurisdiction to challenge voting practices that have a discriminatory purpose or result. See Thornburg v. Gingles, 478 U.S. 30, 35, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986).
[2] Reaching beyond case-by-case litigation and applying only in certain “covered jurisdictions,” section 5—the focus of this litigation—“prescribes remedies ... which go into effect without any need for prior adjudication.” Katzenbach, 383 U.S. at 327–28, 86 S.Ct. 803. Section 5 suspends “all changes in state election procedure until they [are] submitted to and approved by a three-judge Federal District Court in Washington, D.C., or the Attorney General.” Nw. Austin, 129 S.Ct. at 2509. A jurisdiction seeking to change its voting laws or procedures must either submit the change to the Attorney General or seek preclearance directly from the three-judge court. If it opts for the former and if the Attorney General lodges no objection within sixty days, the proposed law can take effect. 42 U.S.C. § 1973c(a). But if the Attorney General lodges an objection, the submitting jurisdiction may either request reconsideration, 28 C.F.R. § 51.45(a), or seek a de novo determination from the three-judge district court. 42 U.S.C. § 1973c(a). Either way, preclearance may be granted only if the jurisdiction demonstrates that the proposed change to its voting law neither “has the purpose nor ... the effect of denying or

abridging the right to vote on account of race or color.”Id.
[3] Prior to section 5’s enactment, states could stay ahead of plaintiffs and 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, 96 S.Ct. 1357, 47 L.Ed.2d 629 (1976) (quoting H.R.Rep. No. 94–196, at 57–58 (1975)). But section 5 “shift[ed] the advantage of time and inertia from the perpetrators of the evil to its victim.” Katzenbach, 383 U.S. at 328, 86 S.Ct. 803. It did so by placing “the burden on covered jurisdictions to show their voting changes are nondiscriminatory before those changes can be put into effect.” Shelby Cnty., 811 F.Supp.2d at 431. Section 5 thus “pre-empted the most powerful tools of black disenfranchisement,” Nw. Austin, 129 S.Ct. at 2509, resulting in “undeniable **374*855 improvements in the protection of minority voting rights, id. at 2511.
Section 4(b) contains a formula that, as originally enacted, applied section 5’s preclearance requirements to any state or political subdivision of a state that “maintained a voting test or device as of November 1, 1964, and had less than 50% voter registration or turnout in the 1964 presidential election.” Shelby Cnty., 811 F.Supp.2d at 432 (citing Voting Rights Act of 1965, Pub.L. No. 89–110, § 4(b), 79 Stat. 437, 438 (“1965 Act”)). Congress chose these criteria carefully. It knew precisely which states it sought to cover and crafted the criteria to capture those jurisdictions. Id. (citing testimony before Congress in 2005–2006). Unsurprisingly, then, the jurisdictions originally covered in their entirety, Alabama, Georgia, Louisiana, Mississippi, South Carolina, and Virginia, “were those southern states with the worst historical records of racial discrimination in voting.” Id.
Because section 4(b)’s formula could be both over- and underinclusive, Congress incorporated two procedures for adjusting coverage over time. First, as it existed in 1965, section 4(a) allowed jurisdictions to earn exemption from coverage by obtaining from a three-judge district court a declaratory judgment that in the previous five years (i.e., before they became subject to the Act) they had used no test or device “for the purpose or with the effect of denying or abridging the right to vote on account of race or color.” 1965 Act § 4(a). This “bailout” provision, as subsequently amended, addresses potential overinclusiveness, allowing jurisdictions with clean records to terminate their section 5 preclearance obligations. Second, section 3(c) authorizes federal courts to require preclearance by any non-covered state or political subdivision found to have violated the
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Fourteenth or Fifteenth Amendments. 42 U.S.C. § 1973a(c). Specifically, courts presiding over voting discrimination suits may “retain jurisdiction for such period as [they] may deem appropriate” and order that during that time no voting change take effect unless either approved by the court or unopposed by the Attorney General. Id. This judicial “bail-in” provision addresses the formula’s potential underinclusiveness.
As originally enacted in 1965, section 5 was to remain in effect for five years. In South Carolina v. Katzenbach, the Supreme Court sustained the constitutionality of section 5, holding that its provisions “are a valid means for carrying out the commands of the Fifteenth Amendment.” 383 U.S. at 337, 86 S.Ct. 803. Congress subsequently renewed the temporary provisions, including sections 4(b) and 5, in 1970 (for five years), then in 1975 (for seven years), and again in 1982 (for twenty-five years). In each version, “[t]he coverage formula [in section 4(b) ] remained the same, based on the use of voting-eligibility tests [or devices] and the rate of registration and turnout among all voters, but the pertinent dates for assessing these criteria moved from 1964 to include 1968 and eventually 1972.” Nw. Austin, 129 S.Ct. at 2510. In 1975 Congress made one significant change to section 4(b)’s scope: it amended the definition of “test or device” to include the practice of providing only English-language voting materials in jurisdictions with significant non-English-speaking populations. Act of Aug. 6, 1975, Pub.L. No. 94–73, § 203, 89 Stat. 400, 401–02 (codified at 42 U.S.C. § 1973b(f)(3)). Although not altering the basic coverage formula, this change expanded section 4(b)’s scope to encompass jurisdictions with records of voting discrimination against “language minorities.” See Briscoe v. Bell, 432 U.S. 404, 405, 97 S.Ct. 2428, 53 L.Ed.2d 439 (1977). The Supreme Court sustained the constitutionality of each extension, respectively, in Georgia **375*856 v. United States, 411 U.S. 526, 93 S.Ct. 1702, 36 L.Ed.2d 472 (1973), City of Rome v. United States, 446 U.S. 156, 100 S.Ct. 1548, 64 L.Ed.2d 119 (1980), and Lopez v. Monterey County, 525 U.S. 266, 119 S.Ct. 693, 142 L.Ed.2d 728 (1999).
Significantly for the issue before us, the 1982 version of the Voting Rights Act made bailout substantially more permissive. Prior to 1982, bailout was extremely limited: no jurisdiction could bail out if it had used discriminatory voting tests or practices when it first became subject to section 5, even if it had since eliminated those practices. Shelby Cnty., 811 F.Supp.2d at 434. By contrast, after 1982 the Act allowed bailout by any jurisdiction with a “clean” voting rights record over the previous ten years.

Id. The 1982 reauthorization also permitted a greater number of jurisdictions to seek bailout. Previously, “only covered states (such as Alabama) or separately-covered political subdivisions (such as individual North Carolina counties) were eligible to seek bailout.” Id. After 1982, political subdivisions within a covered state could bail out even if the state as a whole was ineligible. Id.
Setting the stage for this litigation, Congress extended the Voting Rights Act for another twenty-five years in 2006. 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 (“2006 Act”). In doing so, it acted on the basis of a legislative record “over 15,000 pages in length, and includ [ing] statistics, findings by courts and the Justice Department, and first-hand accounts of discrimination.” Shelby Cnty., 811 F.Supp.2d at 435 (internal quotation marks omitted). Congress also amended section 5 to overrule the Supreme Court’s decisions in Georgia v. Ashcroft, 539 U.S. 461, 479–80, 123 S.Ct. 2498, 156 L.Ed.2d 428 (2003) (which held that “any assessment of the retrogression of a minority group’s effective exercise of the electoral franchise depends on an examination of all the relevant circumstances” and that “a court should not focus solely on the comparative ability of a minority group to elect a candidate of its choice”), and Reno v. Bossier Parish School Board, 528 U.S. 320, 328, 120 S.Ct. 866, 145 L.Ed.2d 845 (2000) ( “Bossier II ”) (which held that “the ‘purpose’ prong of § 5 covers only retrogressive dilution”). See 2006 Act § 5 (codified at 42 U.S.C. § 1973c(b)-(d)).
The 2006 Act’s constitutionality was immediately challenged by “a small utility district” subject to its provisions. See Nw. Austin, 129 S.Ct. at 2508. After finding the district ineligible for bailout, the three-judge district court concluded that the reauthorized Voting Rights Act was constitutional. Nw. Austin Mun. Util. Dist. No. One v. Mukasey, 573 F.Supp.2d 221, 283 (D.D.C.2008). On appeal, the Supreme Court identified two “serious ... questions” about section 5’s continued constitutionality, namely, whether the “current burdens” it imposes are “justified by current needs,” and whether its “disparate geographic coverage is sufficiently related to the problem that it targets.” Nw. Austin, 129 S.Ct. at 2512–13. But invoking the constitutional avoidance doctrine, id. at 2508, 2513, the Court interpreted the statute to allow any covered jurisdiction, including the utility district bringing suit in that case, to seek bailout, thus avoiding the need to resolve the “big question,” id. at 2508: Did Congress exceed its constitutional authority
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when it reauthorized section 5? Now that question is squarely presented.
II.
Shelby County filed suit in the U.S. District Court for the District of Columbia, seeking both a declaratory judgment that **376*857 sections 4(b) and 5 of the Voting Rights Act are facially unconstitutional and a permanent injunction prohibiting the Attorney General from enforcing them. Shelby Cnty., 811 F.Supp.2d at 427. Unlike the utility district in Northwest Austin, Shelby County never sought bailout, and for good reason. Because the county had held several special elections under a law for which it failed to seek preclearance and because the Attorney General had recently objected to annexations and a redistricting plan proposed by a city within Shelby County, the County was clearly ineligible for bailout. See id. at 446 n. 6. As the district court—Judge John D. Bates—recognized, the “serious constitutional questions” raised in Northwest Austin could “no longer be avoided.” Id. at 427.
Addressing these questions in a thorough opinion, the district court upheld the constitutionality of the challenged provisions and granted summary judgment for the Attorney General. After reviewing the extensive legislative record and the arguments made by Shelby County, the Attorney General, and a group of defendant-intervenors, the district court concluded that “Section 5 remains a ‘congruent and proportional remedy’ to the 21st century problem of voting discrimination in covered jurisdictions.” Id. at 428. Responding to the Supreme Court’s concerns in Northwest Austin, the district court found the record evidence of contemporary discrimination in covered jurisdictions “plainly adequate to justify section 5’s strong remedial and preventative measures,” id. at 492 (internal quotation marks omitted), and to support Congress’s predictive judgment that failure to reauthorize section 5 “ ‘would leave minority citizens with the inadequate remedy of a Section 2 action,’ ” id. at 498 (quoting H.R.Rep. No. 109–478, at 57 (2006)). This evidence consisted of thousands of pages of testimony, reports, and data regarding racial disparities in voter registration, voter turnout, and electoral success; the nature and number of section 5 objections; judicial preclearance suits and section 5 enforcement actions; successful section 2 litigation; the use of “more information requests” and federal election observers;

racially polarized voting; and section 5’s deterrent effect.Id. at 465–66.

[4] As to section 4(b), the district court acknowledged that

the legislative record “primarily focused on the

persistence of voting discrimination in covered

jurisdictions—rather than on the comparative levels of

voting discrimination in covered and non-covered

jurisdictions.” Id. at 507. Nonetheless, the district court

pointed to “several significant pieces of evidence

suggesting that the 21st century problem of voting

discrimination remains more prevalent in those

jurisdictions that have historically been subject to the

preclearance

requirement”—including

the

disproportionate number of successful section 2 suits in

covered jurisdictions and the “continued prevalence of

voting discrimination in covered jurisdictions

notwithstanding the considerable deterrent effect of

Section 5.” Id. at 506–07. Thus, although observing that

Congress’s reauthorization “ensured that Section 4(b)

would continue to focus on those jurisdictions with the

worst historical records of voting discrimination,” id. at

506, the district court found this continued focus justified

by current evidence that discrimination remained

concentrated in those jurisdictions. See id. (explaining

that Congress did not renew the coverage formula to

punish past sins, but rather because it found “substantial

evidence of contemporary voting discrimination by the

very same jurisdictions that had histories of

unconstitutional conduct”). Finally, the district court

emphasized that Congress had based reauthorization not

on “a perfunctory **377*858 review of a few isolated

examples of voting discrimination by covered

jurisdictions,” but had “ ‘approached its task seriously and

with great care.’ ” Id. at 496 (quoting Nw. Austin, 573

F.Supp.2d at 265). Given this, the district court concluded

that Congress’s predictive judgment about the continued

need for section 5 in covered jurisdictions was due

“substantial deference,” id. at 498 (internal quotation

marks omitted), and therefore “decline[d] to overturn

Congress’s carefully considered judgment,” id. at 508.

Our review is de novo. See McGrath v. Clinton, 666 F.3d

1377, 1379 (D.C.Cir.2012) (“We review the district

court’s decision to grant summary judgment de novo.”).

On appeal, Shelby County reiterates its argument that, given the federalism costs section 5 imposes, the provision can be justified only by contemporary evidence of the kind of “ ‘unremitting and ingenious defiance’ ” that existed when the Voting Rights Act was originally passed in 1965. Appellant’s Br. 8 (quoting Katzenbach, 383 U.S. at 309, 86 S.Ct. 803). Insisting that the
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Shelby County, Ala. v. Holder, 679 F.3d 848 (2012)
legislative record lacks “evidence of a systematic campaign of voting discrimination and gamesmanship by the covered jurisdictions,” Shelby County contends that section 5’s remedy is unconstitutional because it is no longer congruent and proportional to the problem it seeks to cure. Id. at 8–9; see also City of Boerne v. Flores, 521 U.S. 507, 520, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997) (“There must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end.”). In addition, Shelby County argues, section 4(b) contains an “obsolete” coverage formula that fails to identify the problem jurisdictions, and because the jurisdictions it covers are not uniquely problematic, the formula is no longer rational “ ‘in both practice and theory.’ ” Appellant’s Br. 11–12 (quoting Katzenbach, 383 U.S. at 330, 86 S.Ct. 803).
III.
[5][6]Northwest Austin sets the course for our analysis, directing us to conduct two principal inquiries. First, emphasizing that section 5 “authorizes federal intrusion into sensitive areas of state and local policymaking that imposes substantial federalism costs,” the Court made clear that “[p]ast success alone ... is not adequate justification to retain the preclearance requirements.” 129 S.Ct. at 2511. Conditions in the South, the Court pointed out, “have unquestionably improved”: racial disparities in voter registration and turnout have diminished or disappeared, and “minority candidates hold office at unprecedented levels.” Id. Of course, “[i]t may be that these improvements are insufficient and that conditions continue to warrant preclearance under the Act.” Id. at 2511–12. But “the Act imposes current burdens,” and we must determine whether those burdens are “justified by current needs.” Id. at 2512.
[7] Second, the Act, through section 4(b)’s coverage formula, “differentiates between the States, despite our historic tradition that all the States enjoy equal sovereignty.” Id. (internal quotation marks omitted). And while equal sovereignty “ ‘does not bar ... remedies for local evils,’ ” id. (omission in original) (quoting Katzenbach, 383 U.S. at 328–29, 86 S.Ct. 803), the Court warned that section 4(b)’s coverage formula may “fail [ ] to account for current political conditions”—that is, “[t]he evil that § 5 is meant to address may no longer be concentrated in the jurisdictions singled out for preclearance.” Id. These concerns, the Court explained,

“are underscored by the argument” that section 5 may require covered jurisdictions to adopt race-conscious measures that, if adopted by non-covered jurisdictions, could violate section 2 of the Act or the Fourteenth Amendment. Id. (citing Georgia v. **378*859 Ashcroft, 539 U.S. at 491, 123 S.Ct. 2498 (Kennedy, J., concurring) (“[C]onsiderations of race that would doom a redistricting plan under the Fourteenth Amendment or § 2 seem to be what save it under § 5.”)). To be sure, such “[d]istinctions can be justified in some cases.” Id. But given section 5’s serious federalism costs, Northwest Austin requires that we ask whether section 4(b)’s “disparate geographic coverage is sufficiently related to the problem that it targets.” Id.
Before addressing Northwest Austin’s two questions, we must determine the appropriate standard of review. As the Supreme Court noted, the standard applied to legislation enacted pursuant to Congress’s Fifteenth Amendment power remains unsettled. See id. at 2512–13 (noting, but declining to resolve the parties’ dispute over the appropriate standard of review). Reflecting this uncertainty, Shelby County argues that the “congruence and proportionality” standard for Fourteenth Amendment legislation applies, see City of Boerne, 521 U.S. at 520, 117 S.Ct. 2157, whereas the Attorney General insists that Congress may use “any rational means” to enforce the Fifteenth Amendment, see Katzenbach, 383 U.S. at 324, 86 S.Ct. 803. Although the Supreme Court declined to resolve this issue in Northwest Austin, the questions the Court raised—whether section 5’s burdens are justified by current needs and whether its disparate geographic reach is sufficiently related to that problem—seem to us the very questions one would ask to determine whether section 5 is “congruen [t] and proportional[ ] [to] the injury to be prevented,” City of Boerne, 521 U.S. at 520, 117 S.Ct. 2157. We thus read Northwest Austin as sending a powerful signal that congruence and proportionality is the appropriate standard of review. In any event, if section 5 survives the arguably more rigorous “congruent and proportional” standard, it would also survive Katzenbach’s “rationality” review.
Of course, this does not mean that the Supreme Court’s prior decisions upholding the Voting Rights Act are no longer relevant. Quite to the contrary, Katzenbach and City of Rome tell us a great deal about “[t]he evil that § 5 is meant to address,” Nw. Austin, 129 S.Ct. at 2512, as well as the types of evidence that are probative of “current needs,” id. Moreover, City of Boerne relied quite heavily on Katzenbach for the proposition that section 5, as originally enacted and thrice extended, was a model of
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congruent and proportional legislation. See City of Boerne, 521 U.S. at 525–26, 530, 117 S.Ct. 2157 (relying on Katzenbach to explain how the Court evaluates remedial legislation under the Fourteenth and Fifteenth Amendments); see also id. at 532–33, 117 S.Ct. 2157 (describing characteristics of the Voting Rights Act, as analyzed by Katzenbach and City of Rome, that made it congruent and proportional).
We can likewise seek guidance from the Court’s Fourteenth Amendment decisions applying the congruent and proportional standard to other legislation. In those cases, the Court made clear that the record compiled by Congress must contain evidence of state “conduct transgressing the Fourteenth Amendment’s substantive provisions,” Coleman v. Court of Appeals of Md., ––– U.S. ––––, 132 S.Ct. 1327, 1333, 182 L.Ed.2d 296 (2012), and that invasions of state interests based on “abstract generalities,” id. at 1337, or “supposition and conjecture,” id. at 1336, cannot be sustained. Once satisfied that Congress has identified a pattern of constitutional violations, however, the Court has deferred to Congress’s judgment, even in the face of a rather sparse legislative record. In Nevada Department of Human Resources v. Hibbs, for example, the Court **379*860 upheld the constitutionality of the family-care provision of the Family and Medical Leave Act, which allows eligible employees to take up to twelve weeks of unpaid leave, and “creates a private right of action to seek both equitable relief and money damages against any employer (including a public agency).” 538 U.S. 721, 724, 123 S.Ct. 1972, 155 L.Ed.2d 953 (2003) (internal quotation marks omitted). Although evidence of discriminatory leave policies by state governments was hardly extensive, see Tennessee v. Lane, 541 U.S. 509, 528–29 & n. 17, 124 S.Ct. 1978, 158 L.Ed.2d 820 (2004) (describing the limited evidence relied upon in Hibbs, “little of which concerned unconstitutional state conduct”), the Court deferred to Congress’s “reasonabl[e] conclu[sions],” Hibbs, 538 U.S. at 734, 123 S.Ct. 1972, and held that the evidence was “weighty enough to justify” prophylactic legislation, id. at 735, 123 S.Ct. 1972. Similarly, in Lane the Court considered whether Congress had authority under the Fourteenth Amendment to pass Title II of the Americans with Disabilities Act, which prohibits public entities, including states, from discriminating on the basis of disability in their services, programs, and activities. 541 U.S. at 513, 124 S.Ct. 1978. Looking into the record and noting the long history of state discrimination against disabled individuals, the Court found it “not difficult to perceive the harm that Title II is designed to address.” See id. at 524–25, 124 S.Ct. 1978. It held, again with great

deference to Congress’s take on the evidence, that the record, “ including judicial findings of unconstitutional state action, and statistical, legislative, and anecdotal evidence of the widespread exclusion of persons with disabilities from the enjoyment of public services,” made “clear beyond peradventure” that Title II was appropriate prophylactic legislation, id. at 529, 124 S.Ct. 1978—and this despite the fact that the record included only two reported decisions finding unconstitutional state action of the precise type at issue, see id. at 544, 124 S.Ct. 1978 (Rehnquist, C.J., dissenting). By contrast, the Court has found that Congress exceeded its Fourteenth Amendment authority where the legislative record revealed a “ virtually complete absence” of evidence of unconstitutional state conduct. Id. at 521, 124 S.Ct. 1978 (majority opinion) (citing Fla. Prepaid Postsecondary Educ. Expense Bd. v. Coll. Sav. Bank, 527 U.S. 627, 647–48, 119 S.Ct. 2199, 144 L.Ed.2d 575 (1999)); see also City of Boerne, 521 U.S. at 530, 117 S.Ct. 2157 (legislative record “lack [ed] examples of modern instances” of the targeted constitutional violations); Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 89, 120 S.Ct. 631, 145 L.Ed.2d 522 (2000) (“Congress never identified any pattern of age discrimination by the States, much less any discrimination whatsoever that rose to the level of constitutional violation.”).
[8] We read this case law with two important qualifications. First, we deal here with racial discrimination in voting, one of the gravest evils that Congress can seek to redress. See Yick Wo v. Hopkins, 118 U.S. 356, 370, 6 S.Ct. 1064, 30 L.Ed. 220 (1886) (“[The right to vote] is regarded as a fundamental political right, because preservative of all rights.”); Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 216, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995) (“racial classifications [are] constitutionally suspect and subject to the most rigid scrutiny” (citation omitted) (internal quotation marks omitted)). When Congress seeks to combat racial discrimination in voting—protecting both the right to be free from discrimination based on race and the right to be free from discrimination in voting, two rights subject to heightened scrutiny—it acts at the apex of its power. See Hibbs, 538 U.S. at 736, 123 S.Ct. 1972 (noting that it is “easier for Congress to **380*861 show a pattern of unconstitutional violations” when it enforces rights subject to heightened scrutiny); Lane, 541 U.S. at 561–63, 124 S.Ct. 1978 (Scalia, J., dissenting) (“Giving [Congress’s enforcement powers] more expansive scope with regard to measures directed against racial discrimination by the States accords to practices that are distinctively violative of the principal purpose of the [Reconstruction Amendments] a priority of attention that
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[the Supreme] Court envisioned from the beginning, and that has repeatedly been reflected in [the Court’s] opinions.”). Expressly prohibited by the Fifteenth Amendment, racial discrimination in voting is uniquely harmful in several ways: it cannot be remedied by money damages and, as Congress found, lawsuits to enjoin discriminatory voting laws are costly, take years to resolve, and leave those elected under the challenged law with the benefit of incumbency.
[9] Second, although the federalism costs imposed by the statutes at issue in Hibbs and Lane (abrogating sovereign immunity to allow suits against states for money damages) are no doubt substantial, the federalism costs imposed by section 5 are a great deal more significant. To be sure, in most cases the preclearance process is “routine” and “efficient[ ],” resulting in prompt approval by the Attorney General and rarely if ever delaying elections. See Reauthorizing the Voting Rights Act’s Temporary Provisions: Policy Perspectives and Views from the Field: Hearing Before the Subcomm. on the Constitution, Civil Rights and Property Rights of the S. Comm. on the Judiciary, 109th Cong. 312–13 (2006) (testimony of Donald M. Wright, North Carolina State Board of Elections) (stating that most preclearance submissions “take only a few minutes to prepare” and that the Justice Department cooperates with jurisdictions to ensure that “preclearance issue[s] d[o] not delay an election”). But section 5 sweeps broadly, requiring preclearance of every voting change no matter how minor. Section 5 also places the burden on covered jurisdictions to demonstrate to the Attorney General or a three-judge district court here in Washington that the proposed law is not discriminatory. Given these significant burdens, in order to determine whether section 5 remains congruent and proportional we are obligated to undertake a review of the record more searching than the Supreme Court’s review in Hibbs and Lane.
[10][11] Although our examination of the record will be probing, we remain bound by fundamental principles of judicial restraint. Time and time again the Supreme Court has emphasized that Congress’s laws are entitled to a “presumption of validity.” City of Boerne, 521 U.S. at 535, 117 S.Ct. 2157. As the Court has explained, when Congress acts pursuant to its enforcement authority under the Reconstruction Amendments, its judgments about “what legislation is needed ... are entitled to much deference.” Id. (internal quotation marks omitted). Even when applying intermediate scrutiny, the Court has accorded Congress deference “out of respect for its authority to exercise the legislative power,” and in

recognition that Congress “is far better equipped than the judiciary to amass and evaluate the vast amounts of data bearing upon legislative questions.” Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180, 195, 196, 117 S.Ct. 1174, 137 L.Ed.2d 369 (1997) (internal quotation marks omitted) (rejecting a First Amendment challenge to the “must-carry” provisions of the Cable Television Consumer Protection and Competition Act). And critically for our purposes, although Northwest Austin raises serious questions about section 5’s constitutionality, nothing in that opinion alters our duty to resolve those questions using traditional principles of **381*862 deferential review. Indeed, the Court reiterated not only that “judging the constitutionality of an Act of Congress is ‘the gravest and most delicate duty that [a court] is called on to perform,’ ” Nw. Austin, 129 S.Ct. at 2513 (quoting Blodgett v. Holden, 275 U.S. 142, 147–48, 48 S.Ct. 105, 72 L.Ed. 206 (1927) (Holmes, J., concurring)), but also that “[t]he Fifteenth Amendment empowers ‘Congress,’ not the Court, to determine in the first instance what legislation is needed to enforce it,” id.
A.
[12] Guided by these principles, we begin with Northwest Austin’s first question: Are the current burdens imposed by section 5 “justified by current needs”? 129 S.Ct. at 2512. The Supreme Court raised this question because, as it emphasized and as Shelby County argues, the conditions which led to the passage of the Voting Rights Act “have unquestionably improved[,] ... no doubt due in significant part to the Voting Rights Act itself.”Id. at 2511. Congress also recognized this progress when it reauthorized the Act, finding that “many of the first generation barriers to minority voter registration and voter turnout that were in place prior to the [Voting Rights Act] have been eliminated.” H.R.Rep. No. 109–478, at 12. The dissent’s charts nicely display this progress. Racial disparities in voter registration and turnout have “narrowed considerably” in covered jurisdictions and are now largely comparable to disparities nationwide. Id. at 12–17; see also Dissenting Op. at 890–91 figs.I & II. Increased minority voting, in turn, has “resulted in significant increases in the number of African–Americans serving in elected offices.” H.R.Rep. No. 109–478, at 18; see also Dissenting Op. at 892 fig.III. For example, in the six states fully covered by the 1965 Act, the number of African Americans serving in elected office increased from 345 to 3700 in the decades since 1965. H.R.Rep. No.
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109–478, at 18.
But Congress found that this progress did not tell the whole story. It documented “continued registration and turnout disparities” in both Virginia and South Carolina. Id. at 25. Virginia, in particular, “remain[ed] an outlier,” S.Rep. No. 109–295, at 11 (2006): although 71.6 percent of white, non-Hispanic voting age residents registered to vote in 2004, only 57.4 percent of black voting age residents registered, a 14.2–point difference. U.S. Census Bureau, Reported Voting and Registration of the Total Voting–Age Population, at tbl.4a, available at http://www.census. gov/hhes/www/socdemo/voting/publications/p20/2004/ta bles.html (last visited May 9, 2012). Also, although the number of African Americans holding elected office had increased significantly, they continued to face barriers to election for statewide positions. Congress found that not one African American had yet been elected to statewide office in Mississippi, Louisiana, or South Carolina. In other covered states, “ ‘often it is only after blacks have been first appointed to a vacancy that they are able to win statewide office as incumbents.’ ” H.R.Rep. No. 109–478, at 33 (quoting Nat’l Comm’n on the Voting Rights Act, Protecting Minority Voters: The Voting Rights Act at Work 1982–2005, at 38 (2006) (“Nat’l Comm’n Report”)).
Congress considered other types of evidence that, in its judgment, “show[ed] that attempts to discriminate persist and evolve, such that Section 5 is still needed to protect minority voters in the future.” Id. at 21. It heard accounts of specific instances of racial discrimination in voting. It heard analysis and opinions by experts on all sides of the issue. It considered, among other things, six distinct categories **382*863 of evidence: (1) Attorney General objections issued to block proposed voting changes that would, in the Attorney General’s judgment, have the purpose or effect of discriminating against minorities; (2) “more information requests” issued when the Attorney General believes that the information submitted by a covered jurisdiction is insufficient to allow a preclearance determination; (3) successful lawsuits brought under section 2 of the Act; (4) federal observers dispatched to monitor elections under section 8 of the Act; (5) successful section 5 enforcement actions filed against covered jurisdictions for failing to submit voting changes for preclearance, as well as requests for preclearance denied by the United States District Court for the District of Columbia; and (6) evidence that the mere existence of section 5 deters officials from even proposing discriminatory voting changes. Finally, Congress heard

evidence that case-by-case section 2 litigation was inadequate to remedy the racial discrimination in voting that persisted in covered jurisdictions.
Before delving into the legislative record ourselves, we consider two arguments raised by Shelby County that, if meritorious, would significantly affect how we evaluate that record.
[13] First, Shelby County argues that section 5 can be sustained only on the basis of current evidence of “a widespread pattern of electoral gamesmanship showing systematic resistance to the Fifteenth Amendment.” Appellant’s Br. 23. According to the County, the preclearance remedy may qualify as congruent and proportional only “when it addresses a coordinated campaign of discrimination intended to circumvent the remedial effects of direct enforcement of Fifteenth Amendment voting rights.” Id. at 7. We disagree. For one thing, how could we demand evidence of gamesmanship of the sort present at the time of Katzenbach given that section 5 preclearance makes such tactics virtually impossible? Equally important, Shelby County’s argument rests on a misreading of Katzenbach. Although the Court did describe the situation in 1965 as one of “unremitting and ingenious defiance of the Constitution,” Katzenbach, 383 U.S. at 309, 86 S.Ct. 803, nothing in Katzenbach suggests that such gamesmanship was necessary to the Court’s judgment that section 5 was constitutional. Rather, the critical factor was that “Congress had found that case-by-case litigation was inadequate to combat widespread and persistent discrimination in voting.” Id. at 328, 86 S.Ct. 803;see also id. at 313–15, 86 S.Ct. 803 (explaining why laws facilitating case-by-case litigation had “proved ineffective”). In City of Rome, the Court, while recognizing that “undeniable” progress had been made, sustained section 5’s constitutionality without ever mentioning gamesmanship of any kind, 446 U.S. at 181–82, 100 S.Ct. 1548; it relied instead on racial disparities in registration, the low number of minority elected officials, and the number and nature of Attorney General objections, id. at 180–81, 100 S.Ct. 1548. Reinforcing this interpretation of Katzenbach and City of Rome, the Supreme Court explained in City of Boerne that “[t]he [Voting Rights Act’s] new, unprecedented remedies were deemed necessary given the ineffectiveness of the existing voting rights laws, and the slow, costly character of case-by-case litigation,” 521 U.S. at 526, 117 S.Ct. 2157 (citation omitted). The Court reiterated the point in Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356, 373, 121 S.Ct. 955,
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148 L.Ed.2d 866 (2001): “In [enacting the Voting Rights] Act ... Congress also determined that litigation had proved ineffective....”
[14][15] This emphasis on the inadequacy of case-by-case litigation makes sense: if section 2 litigation is adequate **383*864 to deal with the magnitude and extent of constitutional violations in covered jurisdictions, then Congress might have no justification for requiring states to preclear their voting changes. Put another way, what is needed to make section 5 congruent and proportional is a pattern of racial discrimination in voting so serious and widespread that case-by-case litigation is inadequate. Given this, the question before us is not whether the legislative record reflects the kind of “ingenious defiance” that existed prior to 1965, but whether Congress has documented sufficiently widespread and persistent racial discrimination in voting in covered jurisdictions to justify its conclusion that section 2 litigation remains inadequate. If it has, then section 5’s “ substantial federalism costs” remain justified because preclearance is still needed to remedy continuing violations of the Fifteenth Amendment.
Second, Shelby County urges us to disregard much of the evidence Congress considered because it involves “vote dilution, going to the weight of the vote once cast, not access to the ballot.” Appellant’s Br. 26. Specifically, the County faults Congress for relying on selective annexations, certain redistricting techniques, at-large elections, and other practices that do not prevent minorities from voting but instead “dilute minority voting strength,” 2006 Act § 2(b)(4)(A). According to the County, because the Supreme Court has “never held that vote dilution violates the Fifteenth Amendment,” Bossier II, 528 U.S. at 334 n. 3, 120 S.Ct. 866, we may not rely on such evidence to sustain section 5 as a valid exercise of Congress’s Fifteenth Amendment enforcement power.
[16][17] It is true that neither the Supreme Court nor this court has ever held that intentional vote dilution violates the Fifteenth Amendment. But the Fourteenth Amendment prohibits vote dilution intended “invidiously to minimize or cancel out the voting potential of racial or ethnic minorities.” City of Mobile v. Bolden, 446 U.S. 55, 66, 100 S.Ct. 1490, 64 L.Ed.2d 47 (1980); see also, e.g., Shaw v. Reno, 509 U.S. 630, 641, 113 S.Ct. 2816, 125 L.Ed.2d 511 (1993). Although the Court’s previous decisions upholding section 5 focused on Congress’s power to enforce the Fifteenth Amendment, the same “congruent and proportional” standard, refined by the inquiries set forth in Northwest Austin, appears to apply

“irrespective of whether Section 5 is considered [Fifteenth Amendment] enforcement legislation, [Fourteenth Amendment] enforcement legislation, or a kind of hybrid legislation enacted pursuant to both amendments.” Shelby Cnty., 811 F.Supp.2d at 462 (footnote omitted); see also City of Boerne, 521 U.S. at 518, 117 S.Ct. 2157 (suggesting that Congress’s “power to enforce the provisions of the Fifteenth Amendment” is “parallel” to its power to enforce the Fourteenth Amendment). Indeed, when reauthorizing the Act in 2006, Congress expressly invoked its enforcement authority under both the Fourteenth and Fifteenth Amendments. SeeH.R.Rep. No. 109–478, at 90 (“[T]he Committee finds the authority for this legislation under amend. XIV, § 5 and amend. XV, § 2.”); id. at 53 & n. 136, 100 S.Ct. 1490 (stating that Congress is acting under its Fourteenth and Fifteenth Amendment powers in reauthorizing the Voting Rights Act). Accordingly, like Congress and the district court, we think it appropriate to consider evidence of unconstitutional vote dilution in evaluating section 5’s validity. See City of Rome, 446 U.S. at 181, 100 S.Ct. 1548 (citing Congress’s finding that “[a]s registration and voting of minority citizens increase[ ], other measures may be resorted to which would dilute increasing minority voting strength” as evidence of the continued **384*865 need for section 5 (internal quotation marks omitted)).
Consideration of this evidence is especially important given that so-called “second generation” tactics like intentional vote dilution are in fact decades-old forms of gamesmanship. That is, “as African Americans made progress in abolishing some of the devices whites had used to prevent them from voting,” both in the late nineteenth century and again in the 1950s and 1960s, “[o]fficials responded by adopting new measures to minimize the impact of black reenfranchisement.”Voting Rights Act: Evidence of Continued Need: Hearing Before the Subcomm. on the Constitution of the H. Comm. on the Judiciary, 109th Cong. 141–43 (2006) (“Evidence of Continued Need ”). These measures—“well-known” tactics such as “ ‘pack[ing]’ ” minorities into a single district, spreading minority voters thinly among several districts, annexing predominately white suburbs, and so on—were prevalent “forms of vote dilution” then, and Congress determined that these persist today. Id. Specifically, Congress found that while “first generation barriers”—flagrant attempts to deny access to the polls that were pervasive at the time of Katzenbach—have diminished, “second generation barriers” such as vote dilution have been “constructed to prevent minority voters from fully participating in the electoral process.” 2006
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Act § 2(b)(2) (congressional findings). Although such methods may be “more subtle than the visible methods used in 1965,” Congress concluded that their “effect and results are the same, namely a diminishing of the minority community’s ability to fully participate in the electoral process and to elect their preferred candidates of choice.” H.R.Rep. No. 109–478, at 6.
Having resolved these threshold issues, we return to the basic question: Does the legislative record contain sufficient probative evidence from which Congress could reasonably conclude that racial discrimination in voting in covered jurisdictions is so serious and pervasive that section 2 litigation remains an inadequate remedy? Reviewing the record ourselves and focusing on the evidence most probative of ongoing constitutional violations, we believe it does.
To begin with, the record contains numerous “examples of modern instances” of racial discrimination in voting, City of Boerne, 521 U.S. at 530, 117 S.Ct. 2157. Just a few recent examples:
• Kilmichael, Mississippi’s abrupt 2001 decision to cancel an election when “an unprecedented number” of African Americans ran for office, H.R.Rep. No. 109–478, at 36–37 (internal quotation marks omitted);
• Webster County, Georgia’s 1998 proposal to reduce the black population in three of the education board’s five single-member districts after the school district elected a majority black school board for the first time, Voting Rights Act: Section 5 of the Act—History, Scope, and Purpose: Hearing Before Subcomm. on the Constitution of the House Judiciary Comm., 109th Cong. 830–31 (2006) (“History, Scope, and Purpose ”);
• Mississippi’s 1995 attempt to evade preclearance and revive a dual registration system “initially enacted in 1892 to disenfranchise Black voters” and previously struck down by a federal court, H.R.Rep. No. 109–478, at 39;
• Washington Parish, Louisiana’s 1993 attempt to reduce the impact of a majority-African American district by “immediately creat[ing] a new at-large seat to ensure that no white incumbent would lose his seat,” id. at 38;
• Waller County, Texas’s 2004 attempt to reduce

early voting at polling places near a historically black university and its threats to prosecute students for **385*866 “illegal voting,” after two black students announced their intent to run for office, Evidence of Continued Need 185–86.
The legislative record also contains examples of overt hostility to black voting power by those who control the electoral process. In Mississippi, for instance, state legislators opposed an early 1990s redistricting plan that would have increased the number of black majority districts, referring to the plan publicly as the “black plan” and privately as the “nigger plan,” Modern Enforcement of the Voting Rights Act: Hearing Before the S. Comm. on the Judiciary, 109th Cong. 22 (2006) (“Modern Enforcement ”) (internal quotation marks omitted); see alsoS.Rep. No. 109–295, at 14. In Georgia, the state House Reapportionment Committee Chairman “told his colleagues on numerous occasions, ‘I don’t want to draw nigger districts,’ ” H.R.Rep. No. 109–478, at 67 (quoting Busbee v. Smith, 549 F.Supp. 494, 501 (D.D.C.1982)). The district court pointed to numerous additional examples of intentional discrimination in the legislative record. See Shelby Cnty., 811 F.Supp.2d at 472–76, 477–79, 480–81, 481–85, 485–87;see also Nw. Austin, 573 F.Supp.2d at 258–62, 289–301.
In addition to these examples of flagrant racial discrimination, several categories of evidence in the record support Congress’s conclusion that intentional racial discrimination in voting remains so serious and widespread in covered jurisdictions that section 5 preclearance is still needed. We explore each in turn.
First, Congress documented hundreds of instances in which the Attorney General, acting pursuant to section 5, objected to proposed voting changes that he found would have a discriminatory purpose or effect. Significantly, Congress found that the absolute number of objections has not declined since the 1982 reauthorization: the Attorney General interposed at least 626 objections during the twenty-two years from 1982 to 2004 (an average of 28.5 each year), compared to 490 interposed during the seventeen years from 1965 to 1982 (an average of 28.8 each year). Evidence of Continued Need 172; see alsoS.Rep. No. 109–295, at 13–14 (finding 754 objections between 1982 and the first half of 2006).
Formal objections were not the only way the Attorney General blocked potentially discriminatory changes under section 5. Congress found that between 1990 and 2005, “more information requests” (MIRs) prompted covered
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jurisdictions to withdraw or modify over 800 proposed voting changes. Evidence of Continued Need 2553, 2565; H.R.Rep. No. 109–478, at 40–41. Although MIRs take no position on the merits of a preclearance request, Congress had evidence indicating that the Attorney General sometimes uses them to “send signals to a submitting jurisdiction about the assessment of their proposed voting change” and to “promot[e] compliance by covered jurisdictions.” Evidence of Continued Need 2541. Congress found that because “[t]he actions taken by a jurisdiction [in response to an MIR] are often illustrative of [its] motives,” the high number of withdrawals and modifications made in response to MIRs constitutes additional evidence of “[e]fforts to discriminate over the past 25 years.” H.R.Rep. No. 109–478, at 40–41.
[18][19] Shelby County contends that section 5 objections and MIRs, however numerous, “do[ ] not signal intentional voting discrimination” because they represent only the Attorney General’s opinion and need not be based on discriminatory intent. Appellant’s Br. 30–31; see also id. at 32. Underlying this argument is a fundamental principle with which we agree: to sustain section 5, the record must contain “evidence of a pattern of constitutional violations,” **386*867Hibbs, 538 U.S. at 729, 123 S.Ct. 1972, and voting changes violate the constitution only if motivated by discriminatory animus, Reno v. Bossier Parish Sch. Bd., 520 U.S. 471, 481, 117 S.Ct. 1491, 137 L.Ed.2d 730 (1997) (“bossier i ”). although not all objections rest on an affirmative finding of intentional discrimination, the record contains examples of many that do.See Nw. Austin, 573 F.Supp.2d at 289–301 (appendix providing examples of objections based on discriminatory intent). Between 1980 and 2004, the Attorney General issued at least 423 objections based in whole or in part on discriminatory intent. Voting Rights Act: Section 5—Preclearance Standards: Hearing Before the Subcomm. on the Constitution of the H. Comm. on the Judiciary, 109th Cong. 180–81 (2005) (“Preclearance Standards ”). Moreover, in the 1990s, before the Supreme Court limited the Attorney General’s ability to object based on discriminatory but non-retrogressive intent, see Bossier II, 528 U.S. 320, 120 S.Ct. 866 (limiting the scope of section 5’s purpose prong in a decision overturned by the 2006 Act), “the purpose prong of Section 5 had become the dominant legal basis for objections,” Preclearance Standards 177, with seventy-four percent of objections based in whole or in part on discriminatory intent, id. at 136. Although it is true that objections represent “only one side’s opinion,” Appellant’s Br. 30, Congress is entitled to rely upon the Attorney General’s considered judgment “when it

prescribes civil remedies ... under [section] 2 of the Fifteenth Amendment.” Katzenbach, 383 U.S. at 330, 86 S.Ct. 803 (explaining that “Congress obviously may avail itself of information from any probative source,” including evidence “adduced by the Justice Department”). In fact, in City of Rome the Supreme Court considered objections to be probative evidence of unconstitutional voting discrimination. See446 U.S. at 181, 100 S.Ct. 1548.
Shelby County also points out that the percentage of proposed voting changes blocked by Attorney General objections has steadily declined—from a height of 4.06 percent (1968–1972) to 0.44 percent (1978–1982) to 0.17 percent (1993–1997) and to 0.05 percent (1998–2002). An Introduction to the Expiring Provisions of the Voting Rights Act and Legal Issues Relating to Reauthorization: Hearing Before the S. Comm. on the Judiciary, 109th Cong. 219 (2006) (“Introduction to the Expiring Provisions”). But the most dramatic decline in the objection rate—which, as the district court observed, “has always been low,” Shelby Cnty., 811 F.Supp.2d at 470—occurred in the 1970s, before the Supreme Court upheld the Act for a third time in City of Rome. See Introduction to the Expiring Provisions 219. Also, the average number of objections per year has not declined, suggesting that the level of discrimination has remained constant as the number of proposed voting changes, many likely quite minor, has increased. SeeH.R.Rep. No. 109–478, at 22 (showing increase in the annual number of voting changes submitted for preclearance, from 300–400 per year in the early 1970s to 4000–5000 per year in the 1990s and 2000s). As the district court pointed out, there may be “many plausible explanations for the recent decline in objection rates.” See Shelby Cnty., 811 F.Supp.2d at 471. Even in the six years from 2000 to 2006, after objection rates had dropped to their lowest, Attorney General objections affected some 660,000 minority voters. The Continuing Need for Section 5 Pre–Clearance: Hearing Before the S. Comm. on the Judiciary, 109th Cong. 58 (2006) (“Continuing Need”). Ultimately, Congress believed that the absolute number of objections represented the better indicator of the extent of discrimination in covered jurisdictions. This judgment—whether to accord greater weight to absolute numbers **387*868 or to objection rates—is precisely the kind that a legislature is “far better equipped” than a court to evaluate, Turner Broad., 520 U.S. at 195, 117 S.Ct. 1174 (internal quotation marks omitted).
As for MIRs, we agree with Shelby County that they are less probative of discrimination than objections. An MIR
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does not represent a judgment on the merits, and submitting jurisdictions might have many reasons for modifying or withdrawing a proposed change in response to one. But the record contains evidence from which Congress could “reasonabl[y] infer[ ],” id. (internal quotation marks omitted), that at least some withdrawals or modifications reflect the submitting jurisdiction’s acknowledgement that the proposed change was discriminatory. See Evidence of Continued Need 178 (stating that a jurisdiction’s decision to withdraw a proposed changes in response to an MIR “is frequently a tacit admission of one or more proposed discriminatory changes”); id. at 809–10 (explaining that after the Attorney General requested more information on a redistricting plan containing only two majority-black districts, the jurisdiction withdrew the proposal and ultimately adopted a redistricting plan with three majority-black districts); H.R.Rep. No. 109–478, at 41 (explaining that Monterey County’s proposal to reduce the number of polling places received preclearance only after the County withdrew five polling place consolidations in response to an MIR). Given this, Congress reasonably concluded that some of the 800–plus withdrawals and modifications in response to MIRs “reflect[ ]” “[e]fforts to discriminate over the past 25 years.” H.R.Rep. No. 109–478, at 40.
[20][21][22] The second category of evidence relied on by Congress, successful section 2 litigation, reinforces the pattern of discrimination revealed by objections and MIRs. The record shows that between 1982 and 2005, minority plaintiffs obtained favorable outcomes in some 653 section 2 suits filed in covered jurisdictions, providing relief from discriminatory voting practices in at least 825 counties. Evidence of Continued Need 208, 251. Shelby County faults the district court for relying on evidence of successful section 2 litigation “even though ‘a violation of Section 2 does not require a showing of unconstitutional discriminatory intent.’ ” Appellant’s Br. 34 (quoting Shelby Cnty., 811 F.Supp.2d at 481). The County’s premise is correct: although the Constitution prohibits only those voting laws motivated by discriminatory intent, section 2 prohibits all voting laws for which “ ‘based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a [protected] class.’ ” Bartlett v. Strickland, 556 U.S. 1, 10–11, 129 S.Ct. 1231, 173 L.Ed.2d 173 (2009) (quoting 42 U.S.C. § 1973(b)). In practice, however, this “results test,” as applied in section 2 cases, requires consideration of factors very similar to those used to establish discriminatory intent based on

circumstantial evidence. Compare Gingles, 478 U.S. at 36–37, 106 S.Ct. 2752 (listing factors considered under the results test), with Rogers v. Lodge, 458 U.S. 613, 623–27, 102 S.Ct. 3272, 73 L.Ed.2d 1012 (1982) (relying on virtually identical factors to affirm a finding of intentional discrimination). Also, as the district court pointed out, “courts will avoid deciding constitutional questions” if, as is the case in virtually all successful section 2 actions, the litigation can be resolved on narrower grounds. Shelby Cnty., 811 F.Supp.2d at 482;see also, e.g., White v. Alabama, 74 F.3d 1058, 1071 n. 42 (11th Cir.1996) (“Because we dispose of the district court’s judgment on the ground that it violates the Voting Rights Act, we need not, and indeed, should not, discuss whether **388*869 the judgment violates the Equal Protection Clause.”). This explains why the legislative record contains so few published section 2 cases with judicial findings of discriminatory intent, see Dissenting Op. at 26; To Examine the Impact and Effectiveness of the Voting Rights Act: Hearing Before the Subcomm. on the Constitution of the H. Comm. on the Judiciary, 109th Cong. 986–87 (2005) (“Impact and Effectiveness ”) (report by Ellen Katz et al.)—courts have no need to find discriminatory intent once they find discriminatory effect. But Congress is not so limited. Considering the evidence required to prevail in a section 2 case and accounting for the obligation of Article III courts to avoid reaching constitutional questions unless necessary, we think Congress quite reasonably concluded that successful section 2 suits provide powerful evidence of unconstitutional discrimination. In addition, as with Attorney General objections, we cannot ignore the sheer number of successful section 2 cases—653 over 23 years, averaging more than 28 each year. This high volume of successful section 2 actions is particularly dramatic given that Attorney General objections block discriminatory laws before they can be implemented and that section 5 deters jurisdictions from even attempting to enact such laws, thereby reducing the need for section 2 litigation in covered jurisdictions. See Continuing Need 26 (explaining that section 5 “makes the covered jurisdiction[s] much ‘cleaner’ than they would have been without Section 5 coverage”).
Third, Congress relied on evidence of “the tens of thousands of Federal observers that have been dispatched to observe elections in covered jurisdictions.” 2006 Act § 2(b)(5). Specifically, 300 to 600 observers were dispatched annually between 1984 and 2000, H.R.Rep. No. 109–478, at 44, amounting to 622 separate dispatches (most or all involving multiple observers) to covered jurisdictions, Evidence of Continued Need 180–82; see
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Shelby County, Ala. v. Holder, 679 F.3d 848 (2012)
also42 U.S.C. § 1973f(a)(2) (authorizing dispatch of federal observers to covered jurisdictions based upon either “written meritorious complaints from residents, elected officials, or civic participation organizations,” or the Attorney General’s judgment that observers are necessary to enforce the Fourteenth or Fifteenth Amendment). Of these, sixty-six percent were concentrated in five of the six states originally covered by section 5—Alabama, Georgia, Louisiana, Mississippi, and South Carolina. H.R.Rep. No. 109–478, at 44. In some instances, monitoring by federal observers “bec[ame] the foundation of Department of Justice enforcement efforts,” as in Conecuh County, Alabama, and Johnson County, Georgia, where reports by federal observers enabled the federal government to bring suit against county officials for discriminatory conduct in polling locations, ultimately resulting in consent decrees. Id.; see also Voting Rights Act: Sections 6 and 8—The Federal Examiner and Observer Program: Hearing Before the Subcomm. on the Constitution of the H. Comm. on the Judiciary, 109th Cong. 42–43 (2006) (“Sections 6 and 8 ”). As Congress saw it, this continued need for federal observers in covered jurisdictions is indicative of discrimination and “demonstrates that the discriminatory conduct experienced by minority voters is not solely limited to tactics to dilute the voting strength of minorities but continues to include tactics to disenfranchise, such as harassment and intimidation inside polling locations.”H.R.Rep. No. 109–478, at 44.
Shelby County insists that the Attorney General’s decision to dispatch federal observers “indicates only that ... there might be conduct with the effect of disenfranchising minority citizens, which might or might not be purposeful discrimination.” Appellant’s Br. 35–36. As the district court explained, however, “observers **389*870 are not assigned to a particular polling location based on sheer speculation; they are only dispatched if ‘there is a reasonable belief that minority citizens are at risk of being disenfranchised.’ ” Shelby Cnty., 811 F.Supp.2d at 486 (quoting H.R.Rep. No. 109–478, at 44). Indeed, the Justice Department conducts pre-election investigations in order to identify jurisdictions where federal observers are likely to be necessary. See Sections 6 and 8, at 37–39 (explaining that the Justice Department conducts pre-election surveys and field investigations to identify jurisdictions where federal observers will be needed). The record shows that federal observers in fact witnessed discrimination at the polls, sometimes in the form of intentional harassment, intimidation, or disparate treatment of minority voters. See id. at 30–31 (describing discriminatory treatment and

harassment of minorities by poll officials in Alabama); id. at 34 (describing discriminatory treatment of minority voters in Texas and Arizona); id. at 43 (describing the exclusion of African Americans from service as poll workers in Johnson County, Georgia). Thus, although the deployment of federal observers is hardly conclusive evidence of unconstitutional discrimination, we think Congress could reasonably rely upon it as modest, additional evidence of current needs.
Fourth, Congress found evidence of continued discrimination in two types of preclearance-related lawsuits. Examining the first of these—actions brought to enforce section 5’s preclearance requirement—Congress noted that “many defiant covered jurisdictions and State and local officials continue to enact and enforce changes to voting procedures without the Federal Government’s knowledge.” H.R.Rep. No. 109–478, at 41. Between 1982 and 2004, at least 105 successful section 5 enforcement actions were brought against such jurisdictions. Evidence of Continued Need 250. Shelby County believes that successful section 5 enforcement actions are “not reliable evidence of intentional voting discrimination” because “[t]he most that a section 5 enforcement action can establish ... is that a voting change—and quite possibly a nondiscriminatory voting change—was not properly submitted for preclearance.” Appellant’s Br. 34. But the legislative record does contain evidence that at least some of the 105 successful section 5 enforcement suits were initiated in response to attempts by covered jurisdictions to implement purposefully discriminatory laws without federal oversight. See Shelby Cnty., 811 F.Supp.2d at 480 (describing section 5 actions against Mississippi and Waller County, Texas, “in which the unprecleared voting changes appeared to have been motivated by discriminatory animus”); Evidence of Continued Need 176 (explaining that after a section 5 enforcement suit forced Mississippi to submit its dual registration law for preclearance, the Attorney General objected based on the law’s racially discriminatory purpose and effect). Therefore, Congress could reasonably have concluded that such cases, even if few in number, provide at least some evidence of continued willingness to evade the Fifteenth Amendment’s protections, for they reveal continued efforts by recalcitrant jurisdictions not only to enact discriminatory voting changes, but to do so in defiance of section 5’s preclearance requirement.
In addition to section 5 enforcement suits, Congress found evidence of continued discrimination in “the number of requests for declaratory judgments [for preclearance] denied by the United States District Court for the District
14

Shelby County, Ala. v. Holder, 679 F.3d 848 (2012)
of Columbia.” 2006 Act § 2(b)(4)(B). The number of unsuccessful judicial preclearance actions appears to have remained roughly constant since 1966: twenty-five requests were denied or withdrawn between 1982 **390*871 and 2004, compared to seventeen between 1966 and 1982. Evidence of Continued Need 177–78, 275. Shelby County does not contest the relevance of this evidence.
Finally, and bolstering its conclusion that section 5 remains necessary, Congress “f[ound] that the existence of Section 5 deterred covered jurisdictions from even attempting to enact discriminatory voting changes.” H.R.Rep. No. 109–478, at 24. In Congress’s view, “Section 5’s strong deterrent effect” and “the number of voting changes that have never gone forward as a result of [that effect]” are “[a]s important as the number of objections that have been interposed to protect minority voters against discriminatory changes” that had actually been proposed. Id. As Congress explained, “ ‘[o]nce officials in covered jurisdictions become aware of the logic of preclearance, they tend to understand that submitting discriminatory changes is a waste of taxpayer time and money and interferes with their own timetables, because the chances are good that an objection will result.’ ” Id. (quoting Nat’l Comm’n Report 57). For this reason, the mere existence of section 5 “ ‘encourage[s] the legislature to ensure that any voting changes would not have a discriminatory effect on minority voters, and that it would not become embroiled in the preclearance process.’ ” Id. (quoting Laughlin McDonald, The Case for Extending and Amending the Voting Rights Act: Voting Rights Litigation, 1982–2006: A Report of the Voting Rights Project of the American Civil Liberties Union 15 (2006)). Congress considered testimony that section 5 has had just this effect on state and local redistricting processes. SeeH.R.Rep. No. 109–478, at 24 (describing section 5’s “critical” influence on the Georgia legislature’s redistricting process, which culminated in a plan that was precleared with no objection by the Attorney General (internal quotation marks omitted)); Evidence of Continued Need 362–63 (explaining how concerns about obtaining preclearance prevented Fredericksburg, Virginia, from eliminating an African American majority district). In other words, Congress had “some reason to believe that without [section 5’s] deterrent effect on potential misconduct,” the evidence of continued discrimination in covered jurisdictions “might be considerably worse.” S.Rep. No. 109–295, at 11.
[23] Shelby County argues that Congress’s finding of deterrence reflects “ ‘outdated assumptions about racial

attitudes in the covered jurisdictions’ ” that we should not “indulge[ ].” Appellant’s Br. 38 (quoting Nw. Austin, 129 S.Ct. at 2525 (Thomas, J., concurring in judgment in part and dissenting in part)). We agree that evaluating section 5’s deterrent effect raises sensitive and difficult issues. As the dissent rightly points out, the claimed effect is hard to measure empirically and even harder to consider judicially. Dissenting Op. at 898. We also agree with the dissent that section 5 could not stand based on claims of deterrence alone, nor could deterrence be used in some hypothetical case to justify renewal “to the crack of doom,” id. But the difficulty of quantifying the statute’s deterrent effect is no reason to summarily reject Congress’s finding that the evidence of racial discrimination in voting would look worse without section 5—a finding that flows from record evidence unchallenged by the dissent. As explained above, Congress’s deterrent effect finding rests on evidence of current and widespread voting discrimination, as well as on testimony indicating that section 5’s mere existence prompts state and local legislators to conform their conduct to the law. And Congress’s finding—that is, a finding about how the world would have looked absent section 5—rests on precisely the type of fact-based, predictive judgment that courts are ill-equipped to second guess. See **391*872Turner Broad., 520 U.S. at 195, 117 S.Ct. 1174 (“In reviewing the constitutionality of a statute, courts must accord substantial deference to the predictive judgments of Congress.” (internal quotation marks omitted)).
This brings us, then, to Congress’s ultimate conclusion. After considering the entire record, including
• 626 Attorney General objections that blocked discriminatory voting changes;
• 653 successful section 2 cases;
• over 800 proposed voting changes withdrawn or modified in response to MIRs;
• tens of thousands of observers sent to covered jurisdictions;
• 105 successful section 5 enforcement actions;
• 25 unsuccessful judicial preclearance actions;
• and section 5’s strong deterrent effect, i.e., “the number of voting changes that have never gone forward as a result of Section 5,” H.R.Rep. No. 109–478, at 24;
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Shelby County, Ala. v. Holder, 679 F.3d 848 (2012)
Congress found that serious and widespread intentional discrimination persisted in covered jurisdictions and that “case-by-case enforcement alone ... would leave minority citizens with [an] inadequate remedy.” Id. at 57. In reaching this conclusion, Congress considered evidence that section 2 claims involve “intensely complex litigation that is both costly and time-consuming.” Modern Enforcement 96; see also Introduction to the Expiring Provisions 141 (describing a Federal Judicial Center study finding that voting rights cases require nearly four times more work than an average district court case and rank as the fifth most work-intensive of the sixty-three types of cases analyzed); City of Boerne, 521 U.S at 526, 117 S.Ct. 2157 (noting the “slow costly character of case-by-case litigation” under section 2). It heard from witnesses who explained that “it is incredibly difficult for minority voters to pull together the resources needed” to pursue a section 2 lawsuit, particularly at the local level and in rural communities. Modern Enforcement 96; see also History, Scope, and Purpose 84 (explaining that voters “in local communities and particularly in rural areas ... do not have access to the means to bring litigation under Section 2”). Such testimony is particularly significant given that the vast majority of section 5 objections (92.5 percent from 2000 to 2005) pertained to local voting changes. See Michael J. Pitts, Let’s Not Call the Whole Thing Off Just Yet: A Response to Samuel Issacharoff’s Suggestion to Scuttle Section 5 of the Voting Rights Act, 84 Neb. L.Rev. 605, 612–13 (2005); see also id. at 616 (“[S]ection 2 cases are much less likely to be filed when it comes to redistricting in smaller jurisdictions[.]”). Congress also heard testimony that during the time it takes to litigate a section 2 action—often several years—proponents of a discriminatory law may enjoy its benefits, potentially winning elections and gaining the advantage of incumbency before the law is overturned.Impact and Effectiveness 43–44. Given all of this, and given the magnitude and persistence of discrimination in covered jurisdictions, Congress concluded that case-by-case litigation—slow, costly, and lacking section 5’s prophylactic effect—“would be ineffective to protect the rights of minority voters.” H.R.Rep. No. 109–478, at 57.
According to Shelby County, “[e]valuation of the probative evidence shows there is no longer systematic resistance to the Fifteenth Amendment in the covered jurisdictions that cannot be solved through case-by-case litigation.” Appellant’s Br. 38. Congress, however, reached a different conclusion, and as explained above, the County has offered no basis for thinking that Congress’s judgment is either unreasonable or

unsupported by probative evidence. The dissent accuses us of “overstat **392*873 the inadequacies of § 2, such as cost and the consequences of delay.” Dissenting Op. at 888. But the conclusion that section 2 is inadequate is Congress’s, not ours. The dissent believes that the costs of section 2 actions can “be assumed by the Department of Justice,” id., but it cites nothing in the record to support such speculation. The dissent also believes that “ courts may as always use the standard remedy of a preliminary injunction to prevent irreparable harm caused by adjudicative delay.” Id. at 888. But Congress knows that plaintiffs can seek preliminary injunctions and reasonably determined that this possibility—that plaintiffs with few resources litigating a fact-intensive section 2 case will be able to satisfy the heavy burden required for preliminary injunctive relief—was insufficient to alleviate its concerns about the inadequacy of section 2 actions.
[24] The point at which section 5’s strong medicine becomes unnecessary and therefore no longer congruent and proportional turns on several critical considerations, including the pervasiveness of serious racial discrimination in voting in covered jurisdictions; the continued need for section 5’s deterrent and blocking effect; and the adequacy of section 2 litigation. These are quintessentially legislative judgments, and Congress, after assembling and analyzing an extensive record, made its decision: section 5’s work is not yet done. Insofar as Congress’s conclusions rest on predictive judgments, we must, contrary to the dissent’s approach, apply a standard of review even “more deferential than we accord to judgments of an administrative agency.” Turner Broad., 520 U.S. at 195, 117 S.Ct. 1174. Given that we may not “displace [an agency’s] choice between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo,” Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 95 L.Ed. 456 (1951), we certainly cannot do so here. Of course, given the heavy federalism costs that section 5 imposes, our job is to ensure that Congress’s judgment is reasonable and rests on substantial probative evidence. See Turner Broad., 520 U.S. at 195, 117 S.Ct. 1174 (“In reviewing the constitutionality of a statute ... [o]ur sole obligation is to assure that, in formulating its judgments, Congress has drawn reasonable inferences based on substantial evidence.” (internal quotation marks omitted)). After thoroughly scrutinizing the record and given that overt racial discrimination persists in covered jurisdictions notwithstanding decades of section 5 preclearance, we, like the district court, are satisfied that Congress’s judgment deserves judicial deference.
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Shelby County, Ala. v. Holder, 679 F.3d 848 (2012)
B.
[25] Having concluded that section 5’s “current burdens” are indeed justified by “current needs,” we proceed to the second Northwest Austin inquiry: whether the record supports the requisite “showing that a statute’s disparate geographic coverage is sufficiently related to the problem that it targets.” 129 S.Ct. at 2512. Recall that this requirement stems from the Court’s concern that “[t]he Act ... differentiates between the States, despite our historic tradition that all the States enjoy ‘equal sovereignty.’ ” Id. “The evil that § 5 is meant to address,” the Court observed, “may no longer be concentrated in the jurisdictions singled out [by section 4(b) ] for preclearance.” Id.
Before examining the record ourselves, we emphasize that the Act’s disparate geographic coverage—and its relation to the problem of voting discrimination—depends not only on section 4(b)’s formula, but on the statute as a whole, including its mechanisms for bail-in and bailout. Bailout functions **393*874 as an integral feature of section 4’s coverage scheme: jurisdictions are subject to section 5 only if (1) they are captured by section 4(b), and (2) they have not bailed out, meaning that they have failed to demonstrate a clean voting record as defined in section 4(a). See42 U.S.C. §§ 1973b(a), 1973c(a). In addition, jurisdictions not captured by section 4(b) but which nonetheless have serious, recent records of voting discrimination, may be “bailed in”—i.e., subjected to section 5 preclearance—pursuant to section 3(c). See42 U.S.C. § 1973a(c). Therefore, the question before us is whether the statute as a whole, not just the section 4(b) formula, ensures that jurisdictions subject to section 5 are those in which unconstitutional voting discrimination is concentrated.
The most concrete evidence comparing covered and non-covered jurisdictions in the legislative record comes from a study of section 2 cases published on Westlaw or Lexis between 1982 and 2004. Impact and Effectiveness 964–1124 (report by Ellen Katz et al.). Known as the Katz study, it reached two key findings suggesting that racial discrimination in voting remains “concentrated in the jurisdictions singled out for preclearance,” Nw. Austin, 129 S.Ct. at 2512. First, the study found that of the 114 published decisions resulting in outcomes favorable to minority plaintiffs, 64 originated in covered jurisdictions,

while only 50 originated in non-covered jurisdictions.

Thus, although covered jurisdictions account for less than

25 percent of the country’s population, they accounted for

56 percent of successful section 2 litigation since 1982.

Impact and Effectiveness 974; see alsoH.R.Rep. No.

109–478, at 53. When the Katz data is adjusted to reflect

these population differences (based on the Census

Bureau’s 2004 population estimates, the most recent data

then available to Congress), the rate of successful section

2 cases in covered jurisdictions (.94 per million residents)

is nearly four times the rate in non-covered jurisdictions

(.25 per million residents), as illustrated in the chart

below. See Ellen Katz & The Voting Rights Initiative,

VRI Database Master List (2006), http://sitemaker.umich.

edu/votingrights/files/masterlist.xls; U.S. Dep’t of Justice,

Section

5

Covered

Jurisdictions,

http://www.justice.gov/crt/about/vot/sec_5/covered.php

(last visited May 9, 2012); U.S. Census Bureau, Annual

Estimates of the Population for the United States and

States, and for Puerto Rico: April 1, 2000 to July 1, 2004,

available

at

http://www.census.

gov/popest/data/historical/2000s/vintage_2004/state.html

(last visited May 9, 2012); U.S. Census Bureau, Annual

Estimates of the Resident Population for Counties: April 1,

2000 to July 1, 2004, available at http://www.census.

gov/popest/data/counties/totals/2004/CO–EST2004–01.ht

ml (last visited May 9, 2012); U.S. Census Bureau,

Population Estimates: Minor Civil Divisions: 2000 to

2004,

available

at

http://www.census.gov/popest/data/cities/totals/2004/SUB

–EST2004–5.html (last visited May 9, 2012).

*875**394 Second, the study found higher success rates in covered jurisdictions than in non-covered jurisdictions. Specifically, 40.5 percent of published section 2 decisions in covered jurisdictions resulted in favorable outcomes for plaintiffs, compared to only 30 percent in non-covered jurisdictions. Impact and Effectiveness 974. The difference between covered and non-covered jurisdictions becomes even more pronounced when unpublished section 2 decisions—primarily
17

Shelby County, Ala. v. Holder, 679 F.3d 848 (2012)

court-approved settlements—are taken into account. As

the Katz study noted, published section 2 lawsuits

“represent only a portion of the section 2 claims filed or

decided since 1982” since many claims were settled or

otherwise resolved without a published opinion. Id. at 974.

According to data compiled by the National Commission

on the Voting Rights Act and Justice Department

historian Peyton McCrary, there have been at least 686

unpublished successful section 2 cases since 1982,

amounting to a total of some 800 published and

unpublished cases with favorable outcomes for minority

voters. See Decl. of Dr. Peyton McCrary 13 (“McCrary

Decl.”). Of these, approximately 81 percent were filed in

covered jurisdictions. Id. When this data is broken down

state-by-state, separately identifying covered and

non-covered portions of partially covered states, the

concentration of successful section 2 cases in the covered

jurisdictions is striking. Of the eight states with the

highest number of successful published and unpublished

section 2 cases per million residents—Alabama,

Mississippi, Arkansas, Texas, South Carolina, Georgia,

and the covered portions of South Dakota and North

Carolina—all but one are covered. See Supp. Decl. of Dr.

Peyton McCrary 3–7; U.S. Dep’t of Justice, Section 5

Covered

Jurisdictions,

http://www.justice.gov/crt/about/vot/sec_5/covered.php

(last visited May 9, 2012); U.S. Census Bureau, Annual

Estimates of the Population for the United States and

States, and for Puerto Rico: April 1, 2000 to July 1, 2004,

available

at

http://www.census.

gov/popest/data/historical/2000s/vintage_2004/state.html

(last visited May 9, 2012); U.S. Census Bureau, Annual

Estimates of the Resident Population for Counties: April 1,

2000 to July 1, 2004, available at http://www.census.

gov/popest/data/counties/totals/2004/CO–EST2004–01.ht

ml (last visited **395*876 May 9, 2012); U.S. Census

Bureau, Population Estimates: Minor Civil Divisions:

2000 to 2004, available at http://www.census.

gov/popest/data/cities/totals/2004/SUB–EST2004–5.html

(last visited May 9, 2012). The only exception is

Arkansas, which, though not captured by section 4(b),

was subjected to partial preclearance pursuant to a 1990

federal court order, i.e., “bailed in.” See Jeffers v. Clinton,

740 F.Supp. 585, 601–02 (E.D.Ark.1990). Similarly, of

the fourteen states with the highest number of successful

published and unpublished section 2 cases per million

residents—the eight listed above, plus Montana,

Louisiana, New Mexico, Virginia, and the non-covered

portions of South Dakota and North Carolina—eleven are

either covered, including the seven states originally

covered by the 1965 Act, or were bailed in for some

period (Arkansas and New Mexico).See Travis Crum,

Note, The Voting Rights Act’s Secret Weapon: Pocket Trigger Litigation and Dynamic Preclearance, 119 Yale L.J.1992, 2010 & nn.100–01 (2010) (discussing bail-in of Arkansas and New Mexico). This data is displayed in the chart on the following page.
*877**396 Shelby County objects to the use of unpublished section 2 data, pointing out that although Congress considered the National Commission’s analysis of unpublished cases in covered jurisdictions, the legislative record does not contain McCrary’s analysis of unpublished cases in non-covered jurisdictions. We agree that there are reasons to approach this data with caution: McCrary prepared his analysis after the 2006 reauthorization, and because his data regarding unpublished cases in non-covered jurisdictions was collected separately from the data on unpublished cases in covered jurisdictions, we cannot be certain that the data collection methods **397*878 were identical. That said, the Supreme Court has considered post-enactment evidence to find at least one law congruent and proportional, see Lane, 541 U.S. at 524–25 nn. 6–9 & 13, 124 S.Ct. 1978 (citing articles and cases published ten or more years after the Americans with Disabilities Act was enacted, as well as recent versions of statutes and regulations), and here a majority of the unpublished cases from non-covered jurisdictions (as well as all from covered jurisdictions) appears in the legislative record, see McCrary Decl. 10. Also, while the Katz data on published cases is necessarily underinclusive, see Impact and Effectiveness 974 (explaining that the published cases analyzed by the Katz study “represent only a portion” of all section 2 actions), Shelby County has identified no errors or inconsistencies in the data analyzed by McCrary. Indeed, McCrary points out that even if his methodology identified only half of the unpublished cases in non-covered jurisdictions, “there would still be 393 more settlements resolved favorably for minority voters in” covered jurisdictions. McCrary Decl. 11. For these reasons, although we would not rely solely on the combined published and unpublished data, we think it provides helpful additional evidence that corroborates the disparities in the level of discrimination between covered and non-covered jurisdictions revealed by the published
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Shelby County, Ala. v. Holder, 679 F.3d 848 (2012)
data.
The section 2 data, moreover, does not tell the whole story. As explained above, Congress found that section 5, which operates only in covered jurisdictions, deters or blocks many discriminatory voting laws before they can ever take effect and become the target of section 2 litigation. “Section 5’s reach in preventing discrimination is broad. Its strength lies not only in the number of discriminatory voting changes it has thwarted, but can also be measured by the submissions that have been withdrawn from consideration, the submissions that have been altered by jurisdictions in order to comply with the [Voting Rights Act], or in the discriminatory voting changes that have never materialized.” H.R. Rep. No. 109–478, at 36. Accordingly, if discrimination were evenly distributed throughout the nation, we would expect to see fewer successful section 2 cases in covered jurisdictions than in non-covered jurisdictions. See Continuing Need 26 (explaining that section 5 “makes the covered jurisdiction[s] much ‘cleaner’ than they would have been without Section 5 coverage”). Yet we see substantially more.
Shelby County makes two main arguments in response to this evidence. First, citing Katzenbach’s finding that the coverage formula was “rational in both practice and theory,” 383 U.S. at 330, 86 S.Ct. 803, it contends that section 4(b) is irrational because it relies on “decades-old data.” Appellant’s Br. 59. “It cannot be constitutional,” Shelby County insists, “to rely on decades-old voting data to establish current voting discrimination.” Id. In addition, the County claims that in 1965 Congress was concerned with “first-generation” barriers—tests and devices that denied access to the ballot—and crafted the coverage formula to capture states that erected such barriers and had low registration rates. But in 2006, although Congress was more concerned with “second-generation” barriers—vote dilution techniques that weaken “minority voting effectiveness”—it retained a coverage formula aimed at first-generation problems. Thus, Shelby County concludes, “[t]here is a serious mismatch between the conduct targeted by Congress and the factors that trigger coverage under Section 4(b).” Id. at 60.
This argument rests on a misunderstanding of the coverage formula. As the district court explained, the election years that serve as coverage “triggers” under **398*879 section 4(b) “were never selected because of something special that occurred in those years.” Shelby Cnty., 811 F.Supp.2d at 505. Instead, Congress identified the jurisdictions it sought to cover—those for which it had

“evidence of actual voting discrimination,” Katzenbach, 383 U.S. at 329, 86 S.Ct. 803—and then worked backward, reverse-engineering a formula to cover those jurisdictions. See id. (explaining that “Congress began work with reliable evidence of actual voting discrimination in a great majority of the States and political subdivisions affected by the new remedies of the Act” and that it “eventually evolved” a formula “to describe these areas”). The coverage formula relied on tests and devices “because of their long history as a tool for perpetrating the evil,” and voting rates because “widespread disenfranchisement must inevitably affect the number of actual voters.” Id. at 330, 86 S.Ct. 803. In other words, Congress chose the section 4(b) criteria not because tests, devices, and low participation rates were all it sought to target, but because they served as accurate proxies for pernicious racial discrimination in voting. The question, then, is not whether the formula relies on old data or techniques, but instead whether it, together with bail-in and bailout, continues to identify the jurisdictions with the worst problems. If it does, then even though the formula rests on decades-old factors, the statute is rational in theory because its “disparate geographic coverage” remains “sufficiently related to the problem that it targets.” Nw. Austin, 129 S.Ct. at 2512.
Of course, Shelby County’s real argument is that the statute fails this test, i.e., that it no longer actually identifies the jurisdictions “uniquely interfering with the right Congress is seeking to protect through preclearance.” Appellant’s Br. 62. The County points out that Congress never made a finding that racial discrimination in voting was “concentrated in the jurisdictions singled out for preclearance.” Nw. Austin, 129 S.Ct. at 2512. The County also argues that the Katz study is at best inconclusive, for some non-covered states, such as Illinois and the non-covered portions of New York, had more successful published section 2 lawsuits than did several covered states. In any event, it claims, “aggregated statistics showing slightly more Section 2 litigation with ‘favorable outcomes’ in covered jurisdictions as a group is not a rational basis for subjecting individually-targeted States to another 25 years of preclearance.” Appellant’s Br. 70.
[26] Shelby County’s first point—that Congress failed to make a finding—is easily answered. Congress did not have to. United States v. Lopez, 514 U.S. 549, 562, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995) (Congress “normally is not required to make formal findings” in order to legislate). The proper question is whether the record contains sufficient evidence to demonstrate that the
19

Shelby County, Ala. v. Holder, 679 F.3d 848 (2012)
formula continues to target jurisdictions with the most serious problems. See Nw. Austin, 129 S.Ct. at 2512. This presents a close question. The record on this issue is less robust than the evidence of continued discrimination, see supra Part III.A, although this is in part due to the difficulty of comparing jurisdictions that have been subject to two very different enforcement regimes, i.e., covered jurisdictions are subject to both sections 2 and 5 while non-covered jurisdictions are subject only to section 2. And although the Katz data in the aggregate does suggest that discrimination is concentrated in covered jurisdictions, just three covered states—Alabama, Louisiana, and Mississippi—account for much of the disparity. The covered states in the middle of the pack—North Carolina, South Carolina, Virginia, Texas, and Georgia—are about on par with the worst non-covered **399*880 jurisdictions. And some covered states—Alaska and Arizona—had no successful published section 2 cases at all.
As explained above, however, this data presents an incomplete picture of covered jurisdictions. When we consider the Katz data in conjunction with other record evidence, the picture looks quite different. For instance, although Georgia had only three successful published section 2 cases between 1982 and 2004, during that time the state had 66 successful unpublished section 2 cases, 83 section 5 objections, and 17 successful section 5 enforcement actions. Evidence of Continued Need 250–51, 272. In addition, between 1990 and 2005, jurisdictions in Georgia withdrew 90 proposed voting changes in response to MIRs. Id. at 2566. South Carolina is similar. Although the state had only 3 successful published section 2 cases, it had 30 successful unpublished section 2 cases, 74 section 5 objections, and 10 successful section 5 enforcement actions, as well as 26 voting changes withdrawn in response to MIRs and 51 changes that could not lawfully be implemented for failure to respond to MIRs. Id. at 250–51, 272, 2566. South Carolina, moreover, is one of the covered states that not only has continued racial disparities in voter registration and turnout, but that has never elected an African American to statewide office. See supra p. 862. Accordingly, even if only a relatively small portion of objections, withdrawn voting changes, and successful section 5 enforcement actions correspond to unconstitutional conduct, and even if there are substantially more successful unpublished section 2 cases in non-covered jurisdictions than the McCrary data reveals, these middle-range covered jurisdictions appear to be engaged in much more unconstitutional discrimination compared to non-covered jurisdictions than the Katz data alone suggests. In fact, the

discrepancy between covered and non-covered jurisdictions is likely even greater given that, as Congress found, the mere existence of section 5 deters unconstitutional behavior in the covered jurisdictions. That is, the middle-range covered states appear comparable to some non-covered jurisdictions only because section 5’s deterrent and blocking effect screens out discriminatory laws before section 2 litigation becomes necessary. Had section 5 not been in effect, one would expect significantly more discrimination in North Carolina, South Carolina, Virginia, Texas, and Georgia, all covered by section 5, than in the non-covered states with the worst records. SeeS.Rep. No. 109–295, at 11 (suggesting that “without the Voting Rights Act’s deterrent effect,” the evidence of discrimination in the covered jurisdictions “might be considerably worse”).
To be sure, the coverage formula’s fit is not perfect. But the fit was hardly perfect in 1965. Accordingly, Katzenbach’s discussion of this issue offers a helpful guide for our current inquiry, particularly when we consider all probative record evidence of recent discrimination—and not just the small subset of section 2 cases relied upon by the dissent, see Dissenting Op. at 898–99. In 1965, the formula covered three states in “which federal courts ha [d] repeatedly found substantial voting discrimination”—Alabama, Louisiana, and Mississippi, Katzenbach, 383 U.S. at 329, 86 S.Ct. 803, the same three states that, notwithstanding more than forty years of section 5 enforcement, still account for the highest rates of published successful section 2 litigation, as well as large numbers of unpublished successful section 2 cases, section 5 objections, federal observer coverages, and voting changes withdrawn or modified in response to MIRs. But the 1965 formula also “embrace[d] two other States—Georgia and South Carolina—plus large portions of a third State—North Carolina—for which there was more fragmentary evidence of recent voting discrimination mainly adduced by the Justice Department **400*881 and the Civil Rights Commission.” Id. at 329–30, 86 S.Ct. 803. Today, the middle-range covered jurisdictions—North Carolina, South Carolina, Virginia, Texas, and Georgia—look similar: although the legislative record contains fewer judicial findings of racial discrimination in these states, it contains at least fragmentary evidence, in part based on Attorney General objections, that these states continue to engage in unconstitutional racial discrimination in voting. Finally, the 1965 formula swept in several other jurisdictions—including Alaska, Virginia, and counties in Arizona, Hawaii, and Idaho—for which Congress apparently had no evidence of actual voting
20

Shelby County, Ala. v. Holder, 679 F.3d 848 (2012)

discrimination. See id. at 318, 329–30, 86 S.Ct. 803. Today, the Act likewise encompasses jurisdictions for which there is some evidence of continued discrimination—Arizona and the covered counties of California, Florida, and New York, see Evidence of Continued Need 250–51, 272—as well as jurisdictions for which there appears little or no evidence of current problems—Alaska and a few towns in Michigan and New Hampshire.

Critically, moreover, and as noted above, in determining whether section 5 is “sufficiently related to the problem that it targets,” we look not just at the section 4(b) formula, but at the statute as a whole, including its provisions for bail-in and bailout. Bail-in allows jurisdictions not captured by section 4’s coverage formula, but which nonetheless discriminate in voting, to be subjected to section 5 preclearance. Thus, two non-covered states with high numbers of successful published and unpublished section 2 cases—Arkansas and New Mexico—were subjected to partial preclearance under the bail-in provision.See Jeffers, 740 F.Supp. at 601–02; Crum, 119 Yale L.J. at 2010 & n.101 (citing Sanchez v. Anaya, No. 82–0067M, slip op. at 8 (D.N.M. Dec. 17, 1984)). Federal courts have also bailed in jurisdictions in several states, including Los Angeles County, California; Escambia County, Florida; Thurston County, Nebraska; Bernalillo County, New Mexico; Buffalo County, South Dakota; Charles Mix County, South Dakota; and the city of Chattanooga, Tennessee. See Crum, 119 Yale L.J. at 2010 & nn.102–08.

Bailout plays an even more important role in ensuring that

section 5 covers only those jurisdictions with the worst

records of racial discrimination in voting. As the Supreme

Court explained in City of Boerne, the availability of

bailout “reduce[s] the possibility of overbreadth” and

helps “ensure Congress’ means are proportionate to [its]

ends.” 521 U.S. at 533, 117 S.Ct. 2157;see also

Katzenbach, 383 U.S. at 329, 86 S.Ct. 803

(“Acknowledging the possibility of overbreadth, the Act

provides for termination of special statutory coverage at

the behest of States and political subdivisions in which

the danger of substantial voting discrimination has not

materialized during the preceding five years.”). As of

May 9, 2012, having demonstrated that they no longer

discriminate in voting, 136 jurisdictions and

sub-jurisdictions had bailed out, including 30 counties, 79

towns and cities, 21 school boards, and 6 utility or

sanitary districts. U.S. Dep’t of Justice, Section 4 of the

Voting

Rights

Act,

http://www.justice.

gov/crt/about/vot/misc/sec_4.php# bailout_list (last

visited May 9, 2012) (“DOJ Bailout List”). In fact, by ruling in Northwest Austin that any jurisdiction covered by section 5 could seek bailout—a development unmentioned by the dissent—the Supreme Court increased significantly the extent to which bailout helps “ensure Congress’ means are proportionate to [its] ends,” Boerne, 521 U.S. at 533, 117 S.Ct. 2157.See Nw. Austin, 129 S.Ct. at 2516 (holding that “all political subdivisions—not only those described in § 14(c)(2)—are eligible to file a bailout suit”). Not surprisingly, then, the **401*882 pace of bailout increased after Northwest Austin: of the successful bailout actions since 1965, 30 percent occurred in the three years after the Supreme Court issued its decision in 2009. See DOJ Bailout List, http://www.justice.gov/crt/about/vot/misc/sec_4.php# bailout_list. Also, the Attorney General “has a number of active bailout investigations, encompassing more than 100 jurisdictions and subjurisdictions from a range of States.” Br. for Att’y Gen. as Appellee at 47–48, LaRoque v. Holder, 679 F.3d 905 (D.C.Cir.2012).
[27] The importance of this significantly liberalized bailout mechanism cannot be overstated. Underlying the debate over the continued need for section 5 is a judgment about when covered jurisdictions—many with very bad historic records of racial discrimination in voting—have changed enough so that case-by-case section 2 litigation is adequate to protect the right to vote. Bailout embodies Congress’s judgment on this question: jurisdictions originally covered because of their histories of discrimination can escape section 5 preclearance by demonstrating a clean record on voting rights for ten years in a row. See42 U.S.C. § 1973b(a)(1) (bailout criteria). As the House Report states, “covered status has been and continues to be within the control of the jurisdiction such that those jurisdictions that have a genuinely clean record and want to terminate coverage have the ability to do so.”H.R.Rep. No. 109–478, at 25. Bailout thus helps to ensure that section 5 is “sufficiently related to the problem that it targets,” Nw. Austin, 129 S.Ct. at 2512.
Shelby County complains that bailout helps only “at the margins,” Appellant’s Br. 53; see also Dissenting Op. at 901, and the dissent emphasizes that only about 1 percent of covered jurisdictions and subjurisdictions have applied for bailout, Dissenting Op. at 901. But absent evidence that there are “clean” jurisdictions that would like to bail out but cannot meet the standards, the low bailout rate tells us nothing about the effectiveness of the bailout provision. See Shelby Cnty., 811 F.Supp.2d at 500–01 (describing “several plausible explanations for th[e]
21

Shelby County, Ala. v. Holder, 679 F.3d 848 (2012)
failure to seek bailout,” including “the minimal administrative cost associated with preclearance, and the fact that covered jurisdictions see no need to avoid the preclearance requirement”). As the dissent concedes, since 1982 no bailout application has been denied, Dissenting Op. at 900–01, and Congress considered evidence that the bailout criteria “are easily proven for jurisdictions that do not discriminate in their voting practices.” Voting Rights Act: An Examination of the Scope and Criteria for Coverage Under the Special Provisions of the Act: Hearing Before the Subcomm. on the Constitution of the H. Comm. on the Judiciary, 109th Cong. 90 (2005). The dissent speculates that “opaque standards” may prevent bailouts, Dissenting Op. at 900–01, but neither it nor Shelby County specifically challenges Congress’s definition of what constitutes a clean jurisdiction or how the Attorney General is applying the bailout criteria. In fact, as noted above, Shelby County never even tried to bail out and has brought only a facial challenge. If something about the bailout criteria themselves or how the Attorney General is applying them is preventing jurisdictions with clean records from escaping section 5 preclearance, those criteria can be challenged in a separate action brought by any adversely affected jurisdiction. See United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987) (explaining that in a facial challenge, “[t]he fact that [a law] might operate unconstitutionally under some conceivable set of circumstances is insufficient to render it wholly invalid”).
*883**402[28] This, then, brings us to the critical question: Is the statute’s “disparate geographic coverage ... sufficiently related to the problem that it targets”? Nw. Austin, 129 S.Ct. at 2512. Of course, if the statute produced “a remarkably bad fit,” Dissenting Op. at 898–99, then we would agree that it is no longer congruent and proportional. But as explained above, although the section 4(b) formula relies on old data, the legislative record shows that it, together with the statute’s provisions for bail-in and bailout—hardly “tack[ed] on,” id. at 901 (internal quotation marks omitted), but rather an integral part of the coverage mechanism—continues to single out the jurisdictions in which discrimination is concentrated. Given this, and given the fundamental principle that we may not “strik[e] down an Act of Congress except upon a clear showing of unconstitutionality,” Salazar v. Buono, ––– U.S. ––––, 130 S.Ct. 1803, 1820, 176 L.Ed.2d 634 (2010) (plurality opinion), we see no principled basis for setting aside the district court’s conclusion that section 5 is “sufficiently related to the problem that it targets,” Nw. Austin, 129

S.Ct. at 2512.
C.
We turn, finally, to the dissent’s argument that section 5 “requires a jurisdiction not only to engage in some level of race-conscious decisionmaking, but also on occasion to sacrifice principles aimed at depoliticizing redistricting.” Dissenting Op. at 886; see also Nw. Austin, 129 S.Ct. at 2512 (explaining that “federalism concerns are underscored by the argument that ... ‘considerations of race that would doom a redistricting plan under the Fourteenth Amendment or § 2 seem to be what save it under § 5’ ” and that “[a]dditional constitutional concerns are raised in saying that this tension between §§ 2 and 5 must persist in covered jurisdictions and not elsewhere” (quoting Georgia v. Ashcroft, 539 U.S. at 491, 123 S.Ct. 2498 (Kennedy, J., concurring))). According to the dissent, this concern and the burden imposed by section 5 are aggravated by the amendments to section 5 Congress added in conjunction with the 2006 reauthorization. Dissenting Op. at 886–88; see also 2006 Act § 5.
[29] The dissent’s thoughtful arguments face a serious obstacle. Shelby County neither challenges the constitutionality of the 2006 amendments or even argues that they increase section 5’s burdens, nor does it argue that section 5 requires covered jurisdictions to undertake impermissible considerations of race. These issues, in other words, are entirely unbriefed, and as we have repeatedly made clear, “appellate courts do not sit as self-directed boards of legal inquiry and research, but essentially as arbiters of legal questions presented and argued by the parties before them.” Carducci v. Regan, 714 F.2d 171, 177 (D.C.Cir.1983). Where, as here, “counsel has made no attempt to address the issue, we will not remedy the defect, especially where, as here, important questions of far-reaching significance are involved.” Id. (internal quotation marks omitted).
Even were they not forfeited, the dissent’s concerns would not have satisfied the standards for mounting a facial constitutional challenge. Such a challenge, the Supreme Court has made clear, is “the most difficult ... to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid.” Salerno, 481 U.S. at 745, 107 S.Ct. 2095. Yet the amendments, as well as the Supreme Court’s concern that section 5 may sometimes require otherwise
22

Shelby County, Ala. v. Holder, 679 F.3d 848 (2012)
impermissible race-conscious decisionmaking, are implicated only in a subset of cases. Specifically, the amendment overturning Bossier II is implicated only in cases involving a discriminatory **403*884 but non-retrogressive purpose, see42 U.S.C. § 1973c(c); the amendments overturning Georgia v. Ashcroft, like the Supreme Court’s concern about race-conscious decisionmaking, are implicated primarily in redistricting cases where section 5 seems to require consideration of race as a “ ‘predominant factor.’ ” See Nw. Austin, 129 S.Ct. at 2512 (quoting Georgia v. Ashcroft, 539 U.S. at 491, 123 S.Ct. 2498 (Kennedy, J., concurring)); 42 U.S.C. § 1973c(b), (d). In other words, even assuming the dissent is correct, it would not have established that “no set of circumstances exists under which the Act would be valid,” Salerno, 481 U.S. at 745, 107 S.Ct. 2095. Indeed, addressing the dissent’s arguments would lead us into the very kind of “speculation” and “ anticipat [ion]” of constitutional questions that require courts to “ disfavor[ ]” facial challenges. Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 450, 128 S.Ct. 1184, 170 L.Ed.2d 151 (2008) (internal quotation marks omitted).
IV.
In Northwest Austin, the Supreme Court signaled that the extraordinary federalism costs imposed by section 5 raise substantial constitutional concerns. As a lower federal court urged to strike this duly enacted law of Congress, we must proceed with great caution, bound as we are by Supreme Court precedent and confined as we must be to resolve only the precise legal question before us: Does the severe remedy of preclearance remain “congruent and proportional”? The legislative record is by no means unambiguous. But Congress drew reasonable conclusions from the extensive evidence it gathered and acted pursuant to the Fourteenth and Fifteenth Amendments, which entrust Congress with ensuring that the right to vote—surely among the most important guarantees of political liberty in the Constitution—is not abridged on account of race. In this context, we owe much deference to the considered judgment of the People’s elected representatives. We affirm.
So ordered.
WILLIAMS, Senior Circuit Judge, dissenting:

Section 5 of the Voting Rights Act imposes rather

extraordinary burdens on “covered” jurisdictions—nine

states (and every jurisdiction therein), plus a host of

jurisdictions scattered through several other states. See

Voting Section, U.S. Dep’t of Justice, Section 5 Covered

Jurisdictions,

http://www.

justice.gov/crt/about/vot/sec_5/covered.php (last visited

May 9, 2012) (listing the covered jurisdictions). Unless

and until released from coverage (a process discussed

below), each of these jurisdictions must seek the Justice

Department’s approval for every contemplated change in

election procedures, however trivial. See 42 U.S.C. §

1973c. Alternatively, it can seek approval from a

three-judge district court in the District of Columbia. See

id. Below I’ll address the criteria by which the

Department and courts assess these proposals; for now,

suffice it to say that the act not only switches the burden

of proof to the supplicant jurisdiction, but also applies

substantive standards quite different from those governing

the rest of the nation.

Section 4(b) of the act states two criteria by which jurisdictions are chosen for this special treatment: whether a jurisdiction had (1) a “test or device” restricting the opportunity to register or vote and (2) a voter registration or turnout rate below 50%. See 42 U.S.C. § 1973b(b). But § 4(b) specifies that the elections for which these two criteria are measured must be ones that took place several decades ago. The freshest, most recent data relate to conditions in November 1972—34 years before Congress extended the act for another **404*885 25 years (and thus 59 years before the extension’s scheduled expiration). See id. The oldest data—and a jurisdiction included because of the oldest data is every bit as covered as one condemned under the newest—are another eight years older. See id.

Of course sometimes a skilled dart-thrower can hit the bull’s eye throwing a dart backwards over his shoulder. As I will try to show below, Congress hasn’t proven so adept. Whether the criteria are viewed in absolute terms (are they adequate in themselves to justify the extraordinary burdens of § 5?) or in relative ones (do they draw a rational line between covered and uncovered jurisdictions?), they seem to me defective. They are not, in my view, “congruent and proportional,” as required by controlling Supreme Court precedent. My colleagues find they are. I dissent.

* * *

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Shelby County, Ala. v. Holder, 679 F.3d 848 (2012)

Although it is only the irrational coverage formula of § 4(b) that I find unconstitutional, it is impossible to assess that formula without first looking at the burdens § 5 imposes on covered jurisdictions. Any answer to the question whether § 4(b) is “sufficiently related to the problem it targets,” Northwest Austin Municipal Utility Dist. No. One v. Holder, 557 U.S. 193, 129 S.Ct. 2504, 2512, 174 L.Ed.2d 140 (2009), that is, whether it is “congruent and proportional,” must be informed by the consequences triggered by § 4(b). (I agree with the majority that Northwest Austin “send[s] a powerful signal that congruence and proportionality is the appropriate standard of review.” Maj. Op. at 859.)1 The greater the burdens imposed by § 5, the more accurate the coverage scheme must be. If, for example, § 5 merely required covered jurisdictions to notify the Justice Department of an impending change in voting procedures, without giving the Department power to delay or thwart implementation, even a rather loose coverage formula would likely appear proportional.

1

Given such a standard, I cannot understand how we

could apply Salerno’s “no set of circumstances” test,

see Maj. Op. at 883, quite apart from the test’s

questionable continued vitality, see, e.g., Washington

State Grange v. Washington State Republican Party,

552 U.S. 442, 449, 128 S.Ct. 1184, 170 L.Ed.2d 151

(2008). Suppose Congress had actually designed the

coverage formula by having the chair of the Senate

Judiciary Committee throw darts at a map and had

included every jurisdiction where a dart landed. Would

we be expected to reject a facial challenge simply on a

showing that the behavior of one covered jurisdiction

was so blatantly unconstitutional as to cry out for

application of § 5?

But § 5 requires much more than notice. For covered jurisdictions, it mandates anticipatory review of state legislative or administrative acts, requiring state and local officials to go hat in hand to Justice Department officialdom to seek approval of any and all proposed voting changes. See 42 U.S.C. § 1973c(a). Since its inception, even supporters of the Voting Rights Act have recognized that the preclearance regime was particularly “strong medicine” for a particularly extreme problem. Voting Rights Act: Hearings on H.R. 6400 Before Subcomm. No. 5 of the House Comm. on the Judiciary, 89th Cong. 110 (1965) (statement of Rep. Chelf). When it first upheld the VRA, the Supreme Court recognized it as a “complex scheme of stringent remedies” and § 5 in particular as an “uncommon exercise of congressional

power.” South Carolina v. Katzenbach, 383 U.S. 301, 315, 334, 86 S.Ct. 803, 15 L.Ed.2d 769 (1966). And only a few years ago the Supreme Court reminded us that the federalism costs of § 5 are “substantial.” Northwest Austin, 129 S.Ct. at 2511.
A critical aspect of those costs is the shifted burden of proof (a matter I’ll discuss **405*886 below in the realm of its most significant application). So too is the section’s broad sweep: § 5 applies to any voting change proposed by a covered jurisdiction, without regard to kind or magnitude, and thus governs many laws that likely could never “deny or abridge” a “ minority group’s opportunity to vote.” See 42 U.S.C. § 1973c(a); Allen v. State Bd. of Elections, 393 U.S. 544, 566, 89 S.Ct. 817, 22 L.Ed.2d 1 (1969) (“The legislative history on the whole supports the view that Congress intended to reach any state enactment, which altered the election law of a covered State in even a minor way.”). This obvious point is underscored by the miniscule and declining share of covered jurisdictions’ applications that draw Justice Department objections—with only five objections for every ten thousand submissions between 1998 and 2002. See Richard L. Hasen, Congressional Power to Renew the Preclearance Provisions of the Voting Rights Act After Tennessee v. Lane, 192 OHIO ST. L.J. 177, 192 & fig.3 (2005) (noting that the Department’s objection rate has “been falling steadily” ever since the early years of the VRA and equaled 0.05% between 1998 and 2002). In the vast majority of cases, then, the overall effect of § 5 is merely to delay implementation of a perfectly proper law.
Of course the most critical features of § 5 are the substantive standards it applies to the covered jurisdictions. Whether a proposed voting change can be precleared turns on whether it would have a retrogressive effect on minority voters. See Beer v. United States, 425 U.S. 130, 141, 96 S.Ct. 1357, 47 L.Ed.2d 629 (1976). In practice this standard requires a jurisdiction not only to engage in some level of race-conscious decisionmaking, but also on occasion to sacrifice principles aimed at depoliticizing redistricting. Suppose a covered jurisdiction sought to implement what we may loosely call “good government” principles. It might, for example, delegate the task of redistricting to a computer programmed to apply criteria such as compactness, contiguity, conformity to existing political boundaries, and satisfaction of one person, one vote requirements. Despite these worthy goals, the resulting plan, if it happened to reduce the number of majority-minority districts, would fail preclearance, as the government acknowledged at oral argument. See Tr. of Oral Arg. at 37–38. As Justice Kennedy cautioned in
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Shelby County, Ala. v. Holder, 679 F.3d 848 (2012)
Georgia v. Ashcroft, 539 U.S. 461, 123 S.Ct. 2498, 156 L.Ed.2d 428 (2003), “[C]onsiderations of race that would doom a redistricting plan under the Fourteenth Amendment ... seem to be what save it under § 5.” Id. at 491, 123 S.Ct. 2498 (Kennedy, J., concurring); see also Miller v. Johnson, 515 U.S. 900, 927, 115 S.Ct. 2475, 132 L.Ed.2d 762 (1995) (noting that Justice Department’s “implicit command that States engage in presumptively unconstitutional race-based districting brings the Act ... into tension with the Fourteenth Amendment”).
Unfortunately, when Congress passed the 2006 version of the VRA, it not only disregarded but flouted Justice Kennedy’s concern. New subsections (b) and (d) were added to § 5 to overturn Georgia v. Ashcroft, thereby restricting the flexibility of states to experiment with different methods of maintaining (and perhaps even expanding) minority influence. The Georgia Court had prescribed a holistic approach to § 5, instructing courts confronting a proposed voting change “not [to] focus solely on the comparative ability of a minority group to elect a candidate of its choice,”2539 U.S. at 480, 123 S.Ct. 2498**406*887 (majority opinion), but also to consider the “extent to which a new plan changes the minority group’s opportunity to participate in the political process” writ large, id. at 482, 123 S.Ct. 2498.Georgia thus gave covered jurisdictions an opportunity to make trade-offs between concentrating minority voters in increasingly safe districts and spreading some of those voters out into additional districts; the latter choice, the Court pointed out, might increase the “substantive representation” they enjoy and lessen the risks of “isolating minority voters from the rest of the State” and of “narrowing [their] political influence to only a fraction of political districts.” Id. at 481, 93 S.Ct. 1702; see also Samuel Issacharoff, Is Section 5 of the Voting Rights Act a Victim of Its Own Success?, 104 COLUM. L.REV.. 1710, 1729 (2004) (expressing concern that § 5’s “narrow focus on securing the electability of minority candidates could compromise the range of political accords available to minority voters and thereby, under conditions of mature political engagement, actually thwart minority political gains”); David Epstein & Sharyn O’Halloran, Measuring the Electoral and Policy Impact of Majority–Minority Voting Districts, 43 AM. J. POL. SCI.. 367, 390–92 (1999) (noting that overreliance on majority-minority districts means that “moderate senators will likely be replaced by extremists,” undermining the ability to create “biracial coalitions [which] are a key to passing racially progressive policies”). In so doing, the Court recognized that a minority group might in fact “achieve greater overall representation ... by increasing the number of

representatives sympathetic to the interests of minority voters,” rather than merely by electing the maximum possible number of representatives dependent on securing a majority of minority votes. 539 U.S. at 483, 123 S.Ct. 2498.

2

The discourse revolving around § 5 invariably assumes

that members of a minority have virtually identical

interests and preferences. I follow that pattern here,

reserving for the end of the opinion consideration of

how such an assumption relates to the real world and to

the 15th Amendment.

As amended, the act forecloses this choice. Preclearance now has an exclusive focus—whether the plan diminishes the ability of minorities (always assumed to be a monolith) to “elect their preferred candidates of choice,” irrespective of whether policymakers (including minority ones) decide that a group’s long-term interests might be better served by less concentration—and thus less of the political isolation that concentration spawns. See 42 U.S.C. § 1973c(b); id. § 1973c(d); see also Texas v. United States, 831 F.Supp.2d 244, at 250–51, 2011 WL 6440006, at *4 (D.D.C. Dec. 22, 2011) (interpreting the amended law to overturn Georgia ). The amended § 5 thus not only mandates race-conscious decisionmaking, but a particular brand of it. In doing so, the new § 5 aggravates both the federal-state tension with which Northwest Austin was concerned and the tension between § 5 and the Reconstruction Amendments’ commitment to nondiscrimination.
Another 2006 amendment makes the § 5 burden even heavier. Section 5 prohibits preclearance of laws that have the “purpose” of “denying or abridging the right to vote on account of race or color.” 42 U.S.C. § 1973c(a). The Court had interpreted “purpose” to be consistent with § 5’s effects prong, so that the term justified denying preclearance only to changes with a “retrogressive” purpose, rather than changes with either that or a discriminatory purpose. See Reno v. Bossier Parish School Bd., 528 U.S. 320, 341, 120 S.Ct. 866, 145 L.Ed.2d 845 (2000) (“Bossier II ”). The 2006 amendments reversed that decision, specifying that “purpose” encompassed “any discriminatory purpose.” 42 U.S.C. § 1973c(c) (emphasis added). This broadening of the § 5 criteria may seem unexceptionable, but the Court had previously found that assigning covered jurisdictions the burden of proving the absence**407*888 of discriminatory purpose was precisely the device that the Department had employed in its pursuit of maximizing
25

Shelby County, Ala. v. Holder, 679 F.3d 848 (2012)
majority-minority districts at any cost: “The key to the Government’s position, which is plain from its objection letters if not from its briefs to this court ..., is and always has been that Georgia failed to proffer a nondiscriminatory purpose for its refusal in the first two submissions to take the steps necessary to create [an additional] majority-minority district.” Miller, 515 U.S. at 924, 115 S.Ct. 2475. By inserting discriminatory purpose into § 5, and requiring covered jurisdictions affirmatively to prove its absence, Congress appears to have, at worst, restored “the Justice Department’s implicit command that States engage in presumptively unconstitutional race-based districting,” id. at 927, 115 S.Ct. 2475, and at best, “exacerbate[d] the substantial federalism costs that the preclearance procedure already exacts,” Bossier II, 528 U.S. at 336, 120 S.Ct. 866.
The majority correctly notes that Shelby did not argue that either of these amendments is unconstitutional. See Maj. Op. at 883. Neither do I. Appellant does argue however that § 4(b) is unconstitutional, that is, that § 4(b) is not a congruent and proportional response to the problem currently posed by voting discrimination. To answer that question one must necessarily first assess the severity of the consequences of coverage under § 4(b) (i.e., subjection to § 5 as it exists today). See supra at p. 885.
Whether Congress is free to impose § 5 on a select set of jurisdictions also depends in part, of course, on possible shortcomings in the remedy that § 2 provides for the country as a whole. That section creates a right to sue any jurisdiction to stop voting practices that “result[ ] in a denial or abridgement” of the right to vote “on account of race or color.” 42 U.S.C. § 1973(a). Doubtless the section is less drastic a remedy than § 5 (and thus by some criteria less effective). But it is easy to overstate the inadequacies of § 2, such as cost and the consequences of delay. Compare Maj. Op. at 872. Unlike in most litigation, plaintiffs’ costs for § 2 suits can in effect be assumed by the Department of Justice by its either exercising its authority to bring suit itself, see, e.g., United States v. Blaine County, 363 F.3d 897 (9th Cir.2004), or by intervening in support of the plaintiff, as it often does. See, e.g., Brown v. Bd. of School Comm’rs, 706 F.2d 1103, 1107 (11th Cir.1983). So far as Departmental resource constraints are concerned, narrowing § 5’s reach would, as a matter of simple arithmetic, enable it to increase § 2 enforcement with whatever resources it stopped spending on § 5. For those cases where the Justice Department still fails to intervene, § 2 provides for reimbursement of attorney and expert fees for prevailing parties. See 42

U.S.C. § 1973l(e). Finally, as to the risk that discriminatory practices may take hold before traditional litigation has run its course, courts may as always use the standard remedy of a preliminary injunction to prevent irreparable harm caused by adjudicative delay. See Perry v. Perez, ––– U.S. ––––, 132 S.Ct. 934, 942, 181 L.Ed.2d 900 (2012).
Indeed, the ubiquitous availability of § 2 is of course a reminder that § 5 was created for the specific purpose of overcoming state and local resistance to federal antidiscrimination policy. When the Supreme Court first upheld the act in 1966, it found that § 5 was necessary because “case-by-case litigation,” now governed by § 2, was “inadequate to combat the widespread and persistent discrimination in voting.” Katzenbach, 383 U.S. at 328, 86 S.Ct. 803. While § 2 was tailored to redress actual instances of discrimination, § 5 was crafted to overcome a “century of systematic **408*889 resistance to the Fifteenth Amendment” and ongoing “obstructionist tactics.” Id.
But life in the covered jurisdictions has not congealed in the 48 years since the first triggering election (or the 40 years since the most recent). “[C]urrent burdens ... must be justified by current needs,” Northwest Austin, 129 S.Ct. at 2512, and the burden imposed by § 5 has only grown heavier in those same years.
In order for § 4(b) to be congruent and proportional then, the disparity in current evidence of discrimination between the covered and uncovered jurisdictions must be proportionate to the severe differential in treatment imposed by § 5. Put another way, a distinct gap must exist between the current levels of discrimination in the covered and uncovered jurisdictions in order to justify subjecting the former group to § 5’s harsh remedy, even if one might find § 5 appropriate for a subset of that group.
* * *
I now turn to assessing the evidence used to justify the § 4(b) coverage formula. The parties have offered no sophisticated statistical analysis of voting discrimination in the covered and uncovered jurisdictions, and what follows does not purport to fill the sophistication gap.
The data considered are drawn from the evidence the parties have cited, as well as the more general set compiled by Congress, especially data the Supreme Court has previously found important. For instance, when it upheld the preclearance regime in 1980, the Supreme
26

Shelby County, Ala. v. Holder, 679 F.3d 848 (2012)
Court noted both the “significant disparity” that still existed between African–American and white voter registration rates, and the fact that the number of black elected officials in covered jurisdictions “fell far short of being representative” of the number of African–Americans residing in covered jurisdictions. City of Rome v. United States, 446 U.S. 156, 180–81, 100 S.Ct. 1548, 64 L.Ed.2d 119 (1980). Beyond voter registration and black elected officials, the parties point us to comparative, state-by-state data detailing the number of federal observers sent into states to oversee elections, plus the number of successful § 2 lawsuits. I take each of these in turn.

both partially covered states, because the few small townships covered constitute only a minute portion of those states and, as far as I can tell, have never been the subject of a § 5 action.

4

The only covered jurisdictions excluded are Alaska,

New Hampshire, and South Dakota. Of those, only

Alaska is a fully covered state. The other states

excluded for want of data are Hawaii, Idaho, Iowa,

Kansas, Maine, Montana, Nebraska, New Mexico,

North Dakota, Oregon, Rhode Island, Utah, Vermont,

West Virginia, and Wyoming.

Voter Registration and Turnout
Section 4(b)’s coverage formula is keyed to two indicators of voter access: voter turnout and the use of tests and devices in voter registration. See 42 U.S.C. § 1973b(b). In 1966 the Supreme Court characterized the VRA as “specifically designed” to remedy the “misuse of tests and devices” that characterized the “widespread and persistent discrimination” at the time. Katzenbach, 383 U.S. at 331, 86 S.Ct. 803. Section 5 was thus meant, at the very least, to ensure that members of minority groups had equal access to the voting booth.
Figures I and II3 focus on this central problem. The two charts compare white and black registration and turnout rates in the 2004 election, using state-by-state estimates from the U.S. Census Bureau. See U.S. Census Bureau, Reported Voting and Registration of the Total Voting–Age Population, at tbl.4a, available at http://www.census. gov/hhes/www/socdemo/voting/publications/p20/2004/ta bles.html. Each chart takes the number of non-Hispanic whites who registered or turned out as a proportion of the total citizen voting-age population (“CVAP”) and compares that ratio to the same ratio for the black population, i.e., it displays the ratio of these two ratios for each state. Thus the greater the ratio (and the further to the left on the **409*890 chart), the greater the racial disparity. The chart excludes states where the Census Bureau was unable to make reliable estimates of black registration and turnout rates (presumably because the black population was too small to get a sufficient sample).4

3

All the charts exclude Michigan and New Hampshire,

*891**410 There appears to be no positive correlation between inclusion in § 4(b)’s coverage formula 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 significantly higher proportion than African–Americans—are not covered. These include, for example, the three worst—Massachusetts, 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.
Black Elected Officials
The other metric that the Rome Court considered was the
27

Shelby County, Ala. v. Holder, 679 F.3d 848 (2012)

number of black elected officials. Figure III uses U.S.

Census Bureau data from 2000 and a state-by-state

breakdown of such officials from that same year and

displays the number of African–Americans who had been

elected to office as a proportion of their share of the total

CVAP in a given state. See David A Bostis, Joint Ctr. for

Pol. & Econ. Studies, Black Elected Officials: A

Statistical **411*892 Summary 2000, available at

http://www.

jointcenter.

org/research/black–elected–officials–a–statistical–summa

ry–2000; U.S. Census Bureau, Voting–Age Population

and Voting–Age Citizens, at tbls.1–1 & 1–3, available at

http://www.

census.gov/population/www/cen2000/briefs/phc-

t

31/index.html. Thus, the higher the percentage (and

accordingly the further to the right on the chart), the

closer African–Americans’ share of elected positions is to

equaling their share of the CVAP. States where the

African–American share of CVAP was less than 3% are

excluded.

Again the results are the inverse of § 4(b)’s presuppositions. Covered jurisdictions have far more black officeholders as a proportion of the black population than do uncovered ones. Of the ten states with the highest proportion of black elected officials relative to population, eight 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 uncovered states be chalked up to small black populations. Illinois, Missouri, Delaware and Michigan, where African–Americans **412*893 comprise at least 10% of the CVAP, all fall to the left (i.e., on the worse side) of every one of the states fully covered by § 4(b). While the relatively high number of black officeholders in covered states might be taken as a testament to § 5’spast success, no one could credibly argue that the numbers are proof of the coverage scheme’s continued rationality.
In upholding § 5, the district court acknowledged that the number of black elected officials had increased but found

the nature of the positions insufficient, pointing particularly to the nationwide disparity between the black proportion of the population (11.9%) and the number of black officials elected to statewide office (5%). Shelby County v. Holder, 811 F.Supp.2d 424, 468–69 (D.D.C.2011). It is unclear how this supports singling out the covered jurisdictions. Of the 35 black officials holding statewide elective office in the whole country in 2000 (including 2 from the U.S. Virgin Islands), nearly a third (11) came from fully covered states, Bostis, supra, at 24 tbl.7A, a proportion roughly equivalent to these jurisdictions’ share of the nation’s African–American citizen voting-age population (about 33%), see U.S. Census Bureau, Voting–Age Population and Voting–Age Citizens, supra, at tbl.1–3. Of course one might expect that the higher average African–American share of the population in the covered states would lead to a higher share of statewide elected officials. But if on that account one thinks there has been a shortfall in the covered states, it might be caused in part by the Justice Department’s policy of maximizing majority-minority districts, with the concomitant risks of “isolating minority voters from the rest of the State” and “narrowing [their] political influence to only a fraction of political districts.” Georgia v. Ashcroft, 539 U.S. 461, 481, 123 S.Ct. 2498, 156 L.Ed.2d 428 (2003). If African–American candidates primarily face solidly African–American constituencies, and thus develop political personas pitched overwhelmingly to the Democratic side of the aisle, it would hardly be surprising that they might face special obstacles seeking statewide office (assuming, of course, racially-polarized voting, as § 5 does). See Epstein, supra, at 390–92.
Federal Observers
Section 8 of the VRA authorizes the Department to send federal observers to covered jurisdictions in order to enter polling places and monitor elections if “necessary to enforce the guarantees of the 14th or 15th amendment.” 42 U.S.C. § 1973f(a)(2)(B). Additionally, § 3(a) permits a court to authorize the appointment of federal observers in any political subdivision, whether covered or uncovered, if the court finds it “appropriate to enforce the voting guarantees of the fourteenth or fifteenth amendment.” Id.§ 1973a(a); see also id. § 1973f(a)(1). In an extensive report, the National Commission on the Voting Rights Act mapped the number of occasions these observers had been assigned to states in the 22–year period between the prior VRA authorization (1982) and the 2004 election. See
28

Shelby County, Ala. v. Holder, 679 F.3d 848 (2012)
Nat’l Comm’n on the Voting Rights Act, Protecting Minority Voters: The Voting Rights Act at Work 1982–2005, at 61 & Map 10B (Feb.2006) (“Nat’l Comm’n Report”). Figure IV shows the state-by-state distribution of observer coverages per million minority residents, where the minority population is calculated by subtracting the non-Hispanic white population from the total 2004 population, as estimated by the U.S. Census Bureau. See U.S. Census Bureau, Annual Estimates of the Population for Race Alone and Hispanic or Latino Origin for the United States and States: July 1, 2004, available at http://www.census.gov/popest/data/historical/2000 s/vintage_2004/state.html.
*894**413 Superficially, Figure IV supports § 4(b), indicating that observers are being sent to covered states more often than to uncovered ones. Six of the “worst” eight states are covered ones. But a number of factors undermine any serious inference. First, the National Commission report explains that it has captured “each occasion when federal observers are detailed to a jurisdiction covered by Section 5 or Section 203.” Nat’l Comm’n Report at 60 (emphasis added). The apparent implication is that the Commission didn’t purport to collect data for jurisdictions not covered by either of those sections; if so, the data are useless for comparative purposes. Indeed, testimony before Congress suggests that the Civil Rights Division simply doesn’t use “observers” for uncovered states, preferring instead to send its own staff lawyers to monitor elections “[i]n areas of the country where Federal observers cannot be sent” (presumably meaning, “cannot be sent without the necessity and deterrent of getting court approval”). Voting Rights Act: Sections 6 and 8—The Federal Examiner and Observer Program: Hearing Before the Subcomm. on the Constitution of the Comm. on the Judiciary, 109th Cong. 196 (2005) (statement of Bernard Schlozman). In fact, when calling this to Congress’s attention, a Department official noted that the “the great bulk of ... recent enforcement cases since, say 1993, have involved jurisdictions (e.g., Massachusetts, California, New York, New Jersey, Florida, Washington, and Pennsylvania) where there is no statutory authority to send Federal observers.” Id.

*895**414 Even if we were to assume the National Commission’s figures to be complete, and thus that every federal observer between 1982 and 2004 was sent to a jurisdiction already covered under some part of the VRA (either § 5 or § 203), this suggests another limitation on the data’s relevance: The same Department that administers § 5 preclearance also decides where to send observers, so it is unsurprising that the covered states, which are already in the Department’s sights, would also receive the most observers. Finally, § 3 forces the Justice Department to go to court for authorization to assign observers to uncovered areas, while § 8 imposes no such hurdle for the covered ones, undermining further the data’s already questionable value.
Successful Section 2 Lawsuits
The final metric for which comparative data exist is reported, successful § 2 lawsuits. Appellees point us to a comprehensive list of reported, post–1982 § 2 cases compiled by Professor Ellen Katz and the Voting Rights Initiative at the University of Michigan Law School. See Ellen Katz & The Voting Rights Initiative, VRI Database **415*896 Master List (2006) (“Katz Master List”), available at http://sitemaker.umich.edu/votingrights/files/ masterlist. xls. Relying on these data, the district court noted that more than 56% of successful § 2 suits from 1982 to 2006 have been filed in covered jurisdictions, although those jurisdictions comprise only a quarter of the nation’s population. See Shelby County, 811 F.Supp.2d at 506.
But the persuasive power of this statistic dissolves when we disaggregate the data by state. Figure V looks at each state’s number of successful § 2 lawsuits between 1982 and 2005, per million residents, using the same 2004 U.S. Census Bureau population estimates used above. Because Professor Katz’s database helpfully informs us whether each lawsuit was located in a covered or uncovered jurisdiction, it is possible to break out the covered portions of partially covered states from the uncovered portions:5 A “(C)” below the state’s abbreviation indicates
29

Shelby County, Ala. v. Holder, 679 F.3d 848 (2012)

that the data pertain only to the covered portion of that state, and an “(NC)” indicates the opposite. Because one successful case in a covered portion of South Dakota in 24 years produced a ratio of 43 cases for every hypothetical million residents, the covered portions of South Dakota are excluded in order to avoid distorting the chart’s scale.

5

In order to separately calculate the populations of the

covered portions of partially covered states (namely,

New York, California, North Carolina, and Florida),

Chart V uses the county-specific population estimates

from the U.S. Census Bureau. See U.S. Census Bureau,

Annual Estimates of the Resident Population for

Counties: April 1, 2000 to July 1, 2004,

http://www.census.gov/popest/data/counties/totals/2004

/CO–EST2004–01.html (linking to county-specific data

for these states and others); Voting Section, U.S. Dep’t

of Justice, Section 5 Covered Jurisdictions,

http://www.justice.gov/crt/about/vot/sec_5/covered.php

(last visited May 9, 2012).

*897**416 Like the federal observer data discussed above, Figure V suggests that a more narrowly tailored coverage formula—capturing only Mississippi, Alabama, and Louisiana, and possibly the covered portions of South Dakota and North Carolina—might be defensible. But beyond these, the covered jurisdictions appear indistinguishable from their uncovered peers. The five worst uncovered jurisdictions, including at least two quite populous states (Illinois and Arkansas), have worse records than eight of the covered jurisdictions: the six covered states appearing to the right, plus two fully covered states—Arizona and Alaska—which do not appear on the chart at all because there has been not one successful § 2 suit in those states in the whole 24–year period. Of the ten jurisdictions with the greatest number of successful § 2 lawsuits, only four are covered (five if we add back in the covered portion of South Dakota). A formula with an error rate of 50% or more does not seem “congruent and proportional.”

To bolster these numbers, the majority relies on an account of purportedly successful, but unreported § 2 cases, numbers **417*898 that it rightly notes one should “ approach ... with caution.” Maj. Op. at 877. Indeed, beyond the serious concerns about these data already elucidated by the majority (e.g., completely different groups gathered the data regarding covered and uncovered jurisdictions), we also have almost no information for how Mr. McCrary and his staff identified particular cases as “successful” or not. All we know is that he required “some evidence” that the case was “resolved” under § 2 and “some reference” to settlement. Joint Appendix 95. And the inference of “success” from evidence of possible settlements seems exceptionally weak, for both the unreported cases in the covered jurisdictions compiled by the National Commission and those from the uncovered jurisdictions compiled by Mr. McCrary. It overlooks not only the range of outcomes embraced in the concept of settlement but also the strategic factors, including legal fees and reputational risk, that go into a jurisdiction’s decision to settle.
Additionally, defenders of the coverage scheme point to two circumstances that might also artificially reduce § 2 figures for the covered states, namely the “blocking” effect of actual § 5 vetoes, and the deterrent effect of jurisdictions’ having to seek preclearance. As to blocking, there seems little basis to infer that many of the 626 objections spread over 24 years were substitutes for successful § 2 suits. Any such inference is undermined by the Department’s ability to almost costlessly “Just Say No,” the allocation of the burden of proof to the jurisdiction, the legal fees that fighting the Department will entail, and the difference in the substantive standards governing § 2 and § 5 proceedings.
As to the imputed deterrence, it is plainly unquantifiable. If we assume that it has played a role, how much should we inflate the covered states’ figures to account for it, and which covered states? Given much weight, the supposed deterrent effect would justify continued VRA renewals out to the crack of doom. Indeed, Northwest Austin’s insistence that “current burdens ... must be justified by current needs,” 129 S.Ct. at 2512, would mean little if § 5’s supposed deterrent effect were enough to justify the current scheme. See Tr. of Oral Arg. at 28, Northwest Austin Municipal Utility Dist. No. One v. Holder, 557 U.S. 193, 129 S.Ct. 2504, 174 L.Ed.2d 140 (2009) (No. 08–322) (statement of Chief Justice Roberts) (“Well, that’s like the old—you know, it’s the elephant whistle. You know, I have this whistle to keep away the elephants.... Well, there are no elephants, so it must
30

Shelby County, Ala. v. Holder, 679 F.3d 848 (2012)
work.”).
* * *
To recap, of the four metrics for which comparative data exist, one (voter registration and turnout) suggests that the coverage formula completely lacks any rational connection to current levels of voter discrimination, another (black elected officials), at best does nothing to combat that suspicion, and, at worst, confirms it, and two final metrics (federal observers and § 2 suits) indicate that the formula, though not completely perverse, is a remarkably bad fit with Congress’s concerns. Given the drastic remedy imposed on covered jurisdictions by § 5, as described above, I do not believe that such equivocal evidence can sustain the scheme.
The Supreme Court’s initial review of the formula in 1966 provides a model for evaluating such an imperfect correlation. It assessed the evidence of discrimination before it and divided the covered jurisdictions into three categories: (1) a group for which “federal courts have repeatedly found substantial voting discrimination”; (2) another group “for which there was more fragmentary evidence of recent voting discrimination”; and (3) a third set consisting of the “few remaining States **418*899 and political subdivisions covered by the formula,” for which there was little or no such evidence of discrimination, but whose use of voting tests and low voter turnout warranted inclusion, “at least in the absence of proof that they have been free of substantial voting discrimination in recent years.”Katzenbach, 383 U.S. at 329–30, 86 S.Ct. 803. In that original review, the Supreme Court placed three states (Alabama, Mississippi, and Louisiana) in category one, another three (Georgia, South Carolina, and the covered portions of North Carolina) in category two, and finally two fully covered states (Virginia and Alaska) plus a few counties in Hawaii, Idaho, and Arizona, in category three.
The evidence adduced above yields a far worse fit than the data reviewed in Katzenbach. Indeed, one would be hard-pressed to put any of the covered jurisdictions into Katzenbach’s first category. Based on any of the comparative data available to us, and particularly those metrics relied on in Rome, it can hardly be argued that there is evidence of a “substantial” amount of voting discrimination in any of the covered states, and certainly not at levels anywhere comparable to those the Court faced in Katzenbach. In terms of successful § 2 law suits, only three covered states—Mississippi, Louisiana, and Alabama—plus uncovered Montana—have more than

two successful suits per million residents over the past quarter-century (excluding of course the covered portion of South Dakota, which scores high only because with such a small population the one suit there produces a high ratio per hypothetical million); in fact, these three states are the only ones with more than 10 successful suits in the 24 years between 1982 and 2006.6 See Katz Master List. And of course, even this number may be artificially large since a successful § 2 suit does not necessarily entail a finding of unconstitutional behavior (i.e., intentionally discriminatory acts); indeed, the Katz Study itself reports only 12 findings of intentional discrimination in the covered jurisdictions over the same two-and-a-half decades, and on my reading of the cases Professor Katz lists, there are even fewer. See, e.g., Brown v. Bd. of School Comm’rs, 706 F.2d 1103, 1107 (11th Cir.1983) (listed in both the Senate and Katz reports as a case finding discriminatory intent, but the case finds such intent only as to an electoral system enacted in 1876 ).

6

I exclude North Carolina here because four of its ten

successful suits were located in uncovered portions of

the state. See Katz Master List.

Even assuming that these small numbers would qualify as “fragmentary evidence” adequate to place those three in Katzenbach’s second category, that leaves six fully covered states (plus several jurisdictions in partially covered states) in category three, many more than in 1966, when only two fully covered states (Virginia and Alaska) were not included in either category one or two. See Katzenbach, 383 U.S. at 318, 329–30, 86 S.Ct. 803. A coverage scheme that allows two or three of the worst offenders to drag down other covered jurisdictions, whose continued inclusion is merely a combination of historical artifact and Congress’s disinclination to update the formula, can hardly be thought “congruent and proportional.” See Nathaniel Persily, The Promise and Pitfalls of the New Voting Rights Act, 117 YALE L.J. 174, 208–09 (2007) (concluding that any “debate over the coverage formula” would “likely have led to the complete unraveling” of the VRA’s 2006 reauthorization campaign); id. at 208 (“The most one can say in defense of the formula is that it is the best of the politically feasible alternatives....”). Congress’s inability to agree on a currently coherent formula is **419*900 not a good reason for upholding its extension of an anachronism.
Moreover, the Court in 1966 relied on rather a natural inference from the data available. The tight relationship
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Shelby County, Ala. v. Holder, 679 F.3d 848 (2012)
between the two trigger criteria (i.e., voter turnout and the use of voting “tests and devices”) and evidence of discrimination in the states in categories one and two, made it logical to suppose that Congress reasonably inferred a comparable fit for the remaining covered jurisdictions for which direct evidence of discrimination was missing (i.e., those in category three). But today the trigger criteria have lost any inherent link to the key concern. The newest triggering data hark back to 1972, 34 years before the current formula was enacted, and nearly 60 years before the current act expires. Indeed, if the formula were to be updated to use more recent election data, it would cover only Hawaii. See 152 CONG. REC. H5131, H5181 (daily ed. July 13, 2006).
More critically, the Court’s acceptance of the § 4(b) formula in 1966 was explicitly based on certain reasonable understandings of § 5’s focus. Explaining why it saw no serious problem in the challengers’ claim of underinclusiveness— § 4(b)’s exclusion of localities not employing “tests or devices” but showing evidence of voting discrimination by other means—the Court observed that Congress had learned that persistent discrimination “has typically entailed the misuse of tests and devices, and this was the evil for which the new remedies were specifically designed.” Katzenbach, 383 U.S. at 331, 86 S.Ct. 803 (emphasis added). Despite § 5’s language imposing preclearance on all manner of voting rules not within the act’s definition of “tests or devices,” the Court understandably saw the act as focused on, or in its words “specifically designed” for, rooting out “the misuse of tests and devices.” But § 5 litigation no longer centers at all on “tests and devices.” Instead, the majority of § 5 objections today concern redistricting. See Peyton McCrary et al., The Law of Preclearance: Enforcing Section 5, inTHE FUTURE OF THE VOTING RIGHTS ACT 20, 25 tbl.2.1 (David Epstein et al. eds., 2006) (redistricting objections comprised only 17% of Justice Department objections in the 1970s; in the ′90s, they constituted 52% of all objections). Accordingly, quite apart from the trigger criteria’s hopeless fossilization, the intrinsic link between them and their consequences has ceased to exist.
Nor is the coverage formula materially helped by the VRA’s bailout provision. Although Katzenbach did note that § 4(a)’s bailout provision might alleviate concerns about overinclusiveness, see 383 U.S. at 331, 86 S.Ct. 803, its ability to act as a reliable escape hatch is questionable. In its original form, § 4(a) essentially permitted bailout for any jurisdiction that had not used a voting “test or device” in the previous five years. See Voting Rights Act

of 1965, Pub.L. 89–110, § 4(a), 79 Stat. 437, 438. This in effect excluded any covered jurisdiction whose record was not clean as of the date of initial enactment, and until 1982 the later reenactments’ language continued that effect (i.e., allowed access to bailout only for those jurisdictions with clean records as of the VRA’s initial adoption). While the majority correctly notes that the 1982 amendments relaxed that constraint, see Maj. Op. at 855–56, those same amendments tightened the remaining substantive standards. A covered jurisdiction can now obtain bailout if, and only if, it can demonstrate that, during the preceding ten years, it has (simplifying slightly): (1) effectively engaged in no voting discrimination (proven by the absence of any judicial finding of discrimination or even a Justice Department “objection” (unless judicially overturned)); (2) faithfully complied with § 5 **420*901 preclearance; (3) “eliminated voting procedures and methods of election which inhibit or dilute equal access to the electoral process”; and (4) engaged in “constructive efforts to eliminate intimidation and harassment of persons exercising rights protected” under the act and “in other constructive efforts, such as the expanded opportunity for convenient registration.” 42 U.S.C. § 1973b(a)(1). Perhaps because of these opaque standards, actual bailouts have been rare; only 136 of the more than 12,000 covered political subdivisions (i.e., about 1%) have applied for bailout (all successfully). Appellant’s Reply Br. 37; Voting Section, U.S. Dep’t of Justice, Terminating Coverage Under the Act’s Special Provisions, http://www. justice.gov/crt/about/vot/misc/sec_4.php# bailout (last visited May 9, 2012) (listing successful bailouts). Moreover, a successful action under § 4(a) does not actually end federal oversight of bailed-out jurisdictions; for a decade after bailout, the court “retain[s] jurisdiction” just in case the Justice Department or “any aggrieved person” wishes to file a motion “alleging that conduct has occurred which ... would have precluded” bailout in the first place. 42 U.S.C. § 1973b(a)(5).
All of this suggests that bailout may be only the most modest palliative to § 5’s burdens. One scholar hypothesizes that bailout may “exist [ ] more as a fictitious way out of coverage than [as] an authentic way of shoring up the constitutionality of the coverage formula.” Persily, supra, at 213. In fairness, the same scholar also entertains various other explanations, including the possibility that the eligible jurisdictions are just the ones for whom § 5 poses only a very light burden, see id. at 213–14, and ultimately concludes that no one knows which theory “best explains the relative absence of bailouts,” id. at 214. Regardless of the reason for the
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Shelby County, Ala. v. Holder, 679 F.3d 848 (2012)
trivial number of bailouts, irrational rules—here made so by their encompassing six states and numerous additional jurisdictions not seriously different from the uncovered states—cannot be saved “by tacking on a waiver procedure” such as bailout. ALLTEL Corp. v. FCC, 838 F.2d 551, 561 (D.C.Cir.1988); cf. U.S. Telecomm. Ass’n v. FCC, 359 F.3d 554, 571 (D.C.Cir.2004).
Finally the government argues that because the VRA is meant to protect the fundamental right of racial minorities (i.e., a suspect classification), a heightened level of deference to Congress is in order. Appellees’ Br. 22–23. Purportedly supporting this proposition is Chief Justice Rehnquist’s statement in Nevada Dep’t of Human Resources v. Hibbs, 538 U.S. 721, 123 S.Ct. 1972, 155 L.Ed.2d 953 (2003), that when a statute is designed to protect a fundamental right or to prevent discrimination based on a suspect classification, “it [is] easier for Congress to show a pattern of state constitutional violations.” Id. at 736, 123 S.Ct. 1972. But the passage simply makes the point that where a classification is presumptively invalid (e.g., race), an inference of unlawful discrimination follows almost automatically from rules or acts that differentiate on the presumptively forbidden basis, whereas for classifications judged under the “rational basis” test, such as disability or age, “Congress must identify, not just the existence of age- or disability-based state decisions, but a widespread pattern of irrational reliance on such criteria.” Id. at 735, 123 S.Ct. 1972 (emphasis added). This special element of race or other presumptively unconstitutional classifications has no bearing on review of whether Congress’s remedy “fits” the proven pattern of discrimination. To hold otherwise would ignore completely the “vital principles necessary to maintain separation of powers and the federal balance” that the Court held paramount in Boerne (which of course also involved a fundamental right, namely the right to practice one’s religion **421*902City of Boerne v. Flores, 521 U.S. 507, 536, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997).
* * *
A current political dispute—state adoptions of voter identification requirements—highlights the oddity of § 4(b). In 2005, the state of Indiana enacted a law requiring its citizens to present a government-issued photo identification before voting. Against a variety of legal challenges, the Supreme Court upheld the law. See Crawford v. Marion County Election Bd., 553 U.S. 181, 128 S.Ct. 1610, 170 L.Ed.2d 574 (2008). In 2011, Texas and South Carolina both passed similar laws. See Gina

Smith, Haley Signs Voter ID Bill into Law,THE STATE,

May 18, 2011; Sommer Ingram, Gov. Rick Perry Signs

Voter ID Bill into Law,ASSOC. PRESS, May 27, 2011,

available

at

http://www.yumasun.

com/articles/perry–51036–monitortx–rick–austin.html.

But because of those states’ inclusion under § 4(b), they

had to look to Justice Department attorneys in

Washington to seek further approval. In the end, the

Department blocked both laws. See Jerry Markon, S.C.’s

Voter ID Law Rejected,WASH. POST,, Dec. 24, 2011, at

A4; Daniel Gilbert, Election 2012: Texas Law Requiring

Voter IDs Is Blocked,WALL ST. J., Mar. 13, 2012, at A4.

Why should voter ID laws from South Carolina and Texas be judged by different criteria (at a minimum, a different burden of persuasion, which is often critical in cases involving competing predictions of effect) from those governing Indiana? A glimpse at the charts shows that Indiana ranks “worse” than South Carolina and Texas in registration and voting rates, as well as in black elected officials (Figures I, II and III). As to federal observers, Indiana appears clearly “better”—it received none (Figure IV). As to successful § 2 suits South Carolina and Texas are “worse” than Indiana, but all three are below the top ten offenders, which include five uncovered states (Figure V). This distinction in evaluating the different states’ policies is rational?

Despite a congressional record of over 15,000 pages and 22 hearings, Shelby County, 811 F.Supp.2d at 496, there is little to suggest that § 4(b)’s coverage formula continues to capture jurisdictions with especially high levels of voter discrimination. To the extent that the answer is, as the district court suggested, that Congress wished to “continue to focus on those jurisdictions with the worst historical records of voting discrimination,” id. at 506, such an overwhelming focus on historical practices appears foreclosed by Northwest Austin’s requirement that current burdens be justified by current needs.

It goes without saying that racism persists, as evidenced by the odious examples offered by the majority, see Maj. Op. at 865–66. But without more evidence distinguishing current conditions in the covered jurisdictions from those in the uncovered ones, § 4(b)’s coverage formula appears to be as obsolete in practice as one would expect, in a dynamic society, for markers 34–to–59 years old. Accordingly, I dissent.

* * *

33

Shelby County, Ala. v. Holder, 679 F.3d 848 (2012)
The analysis above is my sole basis for finding § 4(b) of the VRA unconstitutional and thus for dissenting from the court’s opinion. I need not and do not reach the constitutionality of § 5 itself. But before concluding, I want to address a critical aspect of § 5, and of some of the cases interpreting earlier versions of that section. I address it first simply as a matter of language—specifically the use of language to obscure reality—and then in relation to the words and political philosophy of the 15th Amendment. Though unnecessary to my dissent’s outcome, the troubling tension between the act’s encouragement **422*903 of racial gerrymandering and the ideals embodied in the 15th Amendment seems worthy of attention.
Section 5(b) makes unlawful any voting practice or procedure with respect to voting “that has the purpose of or will have the effect of diminishing the ability of any citizens of the United States on account of race or color ... to elect their preferred candidates of choice.” 42 U.S.C. § 1973c(b) (emphasis added). And of course similar phrasing has been included in § 2 since 1982. See Voting Rights Act Amendments of 1982, Pub.L. No. 97–205, § 3, 96 Stat. 131, 134 (codified at 42 U.S.C. § 1973(b)) (prohibiting policies that prevent minority groups’ equal opportunity “to elect representatives of their choice.”).
The language (or a close equivalent) seems to have originated in one of the Court’s earliest opinions on § 5, though only as an offhand phrase in its explanation of how a shift from district to at-large voting might dilute minority impact: “Voters who are members of a racial minority might well be in the majority in one district, but a decided minority in the county as a whole. This type of change could therefore nullify their ability to elect the candidate of their choice.” Allen v. State Bd. of Elections, 393 U.S. 544, 569, 89 S.Ct. 817, 22 L.Ed.2d 1 (1969). But the use of such language became troubling in Georgia v. Ashcroft, where the Court said that in the application of § 5 “a court should not focus solely on the comparative ability of a minority group to elect a candidate of its choice.” 539 U.S. 461, 480, 123 S.Ct. 2498, 156 L.Ed.2d 428 (2003) (emphasis added). The “solely” of course indicates approval of such a consideration as one among several criteria for compliance with § 5.
Implied from the statutory “their” is necessarily a “they.” In the context of a statute speaking of impingements on citizens’ voting “on account of race or color,” and indeed in the universally accepted understanding of the provision, the “they” are necessarily members of minority groups. But in what sense do minority groups as such have a

“preferred candidate”? Individuals, of course, have preferred candidates, but groups (unless literally monolithic) can do so only in the limited sense that a majority of the group may have a preferred candidate. Thus, when the provision is translated into operational English, it calls for assuring “the ability of a minority group’s majority to elect their preferred candidates.”
This raises the question of what happened to the minority group’s own minority—those who dissent from the preferences of the minority’s majority?
Of course in any polity that features majority rule, some people are bound to be outvoted on an issue or a candidate and thus to “lose”—on that round of the ongoing political game. Such losses are a necessary function of any system requiring less than unanimity (which would be hopelessly impractical). And in an open society that allows people freely to form associations, and to design those associations, some people obviously will be members of associations whose representatives from time to time express, in their name, opinions they do not share. But that again is a necessary function of having associations free to adopt a structure that empowers their leadership to speak with less than unanimous backing.
But the implied “they” of § 5 is not a polity in itself; nor is it an association freely created by free citizens. Quite the reverse: It is a group constructed artificially by the mandate of Congress, entirely on the lines of race or ethnicity.
On what authority has Congress constructed such groups? Purportedly the 15th Amendment to the Constitution. But that says that the “right of citizens of the **423*904 United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.”
It is hard to imagine language that could more clearly invoke universal individual rights. It is “citizens” who are protected, and they are protected from any denial of their rights that might be based on the specified group characteristics—race, color, or previous condition of servitude. The members of Congress who launched the amendment, said Senator Willard Warner, “profess to give to each individual an equal share of political power.” CONG. GLOBE, 40th Cong., 3d Sess. 861 (1869).
The 15th Amendment was a pivot point in the struggle for universal human rights. The roots of the struggle are deep and obscure. Many trace the concept to the three great
34

Shelby County, Ala. v. Holder, 679 F.3d 848 (2012)

monotheistic religions, Judaism, Christianity, and Islam. See, e.g., MICHELINE R. ISHAY, THE HISTORY OF HUMAN RIGHTS (2004) (noting the contributions of these three traditions, among others). No matter how spotty the actual performance of those religions’ adherents may have been over the centuries, the idea of a single God, claiming the allegiance of all mankind, surely implies a recognition of the dignity and worth of all humans, undistorted by local group loyalties historically linked to local gods. Perhaps the Enlightenment, though in tension with organized religion, has a better title; it is clearly the immediate root of the French Declaration of the Rights of Man and of the Citizen. But at all events the 15th Amendment states a clear national commitment to universal, individual political rights regardless of race or color.

Of course conventional political discourse often uses such terms as “the black vote,” “the youth vote,” “the senior vote,” etc. But those who use these terms—politicians, their consultants, pundits, journalists—know perfectly well that they are oversimplifications, used to capture general political tendencies, not a justification for creating or assuming a political entity that functions through a demographic group’s “majority.” The Supreme Court has recognized that these generalizations are no such justification. In Shaw v. Reno, 509 U.S. 630, 113 S.Ct. 2816, 125 L.Ed.2d 511 (1993), it confronted racial gerrymandering that took the form of including in one district persons separated by geographic and political boundaries and who “may have little in common with one another but the color of their skin.” Id. at 647, 113 S.Ct. 2816. Such a plan:

bears

an

uncomfortable

resemblance to political apartheid.

It reinforces the perception that

members of the same racial

group—regardless of their age,

education, economic status, or the

community in which they

live—think alike, share the same

political interests, and will prefer

the same candidates at the polls.

We have rejected such perceptions

elsewhere as impermissible

stereotypes.

Id.
The pre-Enlightenment history of continental Europe included just such entities—“estates,” whose members voted separately from those of the other estates. Most famously, separately elected representatives of the nobility, the clergy, and the “common” people gathered in 1789 in the French Estates–General. For the last time. By the middle of that year, the Estates–General had ceased to exist. By transforming itself into a National Assembly, it precipitated the French Revolution and the permanent abolition of voting by estates, ultimately throughout Europe. The 15th Amendment can be traced back to that basic development. Section 5’s mandate to advance “the ability of any citizens of the United States on account of race or color ... to elect their preferred **424*905 candidates of choice ” is a partial retreat to pre-Revolutionary times, an era perhaps now so long past that its implications are forgotten.
None of this is to suggest that the country need for a minute countenance deliberate voting rule manipulations aimed at reducing the voting impact of any racial group, whether in the form of restrictions on ballot access or of boundary-drawing. And in judicial proceedings to stamp out such manipulations, it would of course be no defense for the perpetrators to say that they sought only to downweight a minority’s majority. But a congressional mandate to assure the electoral impact of any minority’s majority seems to me more of a distortion than an enforcement of the 15th Amendment’s ban on abridging the “right of citizens of the United States to vote ... on account of race, color, or previous condition of servitude.” Preventing intentional discrimination against a minority is radically different from actively encouraging racial gerrymandering in favor of the minority (really, the majority of the minority), as § 5 does. Assuming there are places in which a colorblind constitution does not suffice as a “universal constitutional principle,” Parents Involved in Community Schools v. Seattle School Dist. No. 1, 551 U.S. 701, 788, 127 S.Ct. 2738, 168 L.Ed.2d 508 (2007) (opinion of Kennedy, J.), the voting booth should not be one of them.

35

 
 Shelby County, Ala. v. Holder, 133 S.Ct. 594 (Mem) (2012)

133 S.Ct. 594 Supreme Court of the United States
SHELBY COUNTY ALABAMA, petitioner, v.
Eric H. HOLDER, Jr., Attorney General, et al.
No. 12–96. | Nov. 9, 2012.
Case below, 679 F.3d 848.

Opinion
Petition for writ of certiorari to the United States Court of Appeals for the Tenth Circuit granted limited to the following question: Whether Congress’ decision in 2006 to reauthorize Section 5 of the Voting Rights Act Under the pre-existing coverage formula of Section 4(b) of the Voting Rights Act exceeded its authority under the Fourteenth and Fifteenth Amendments and thus violated the Tenth Amendment and Article IV of the United States Constitution.

© 2013 Thomson Reuters. No claim to original U.S. Government Works.

1

 
 No. 12-96
IN THE
Supreme Court of the United States

SHELBY COUNTY, ALABAMA, Petitioner,
v. ERIC H. HOLDER, JR., ATTORNEY GENERAL, ET AL.,
Respondents.

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

FRANK C. ELLIS, JR. WALLACE, ELLIS, FOWLER,
HEAD & JUSTICE 113 North Main Street Columbiana, AL 35051 (205) 669-6783
December 26, 2012

BERT W. REIN Counsel Of Record
WILLIAM S. CONSOVOY THOMAS R. MCCARTHY BRENDAN J. MORRISSEY WILEY REIN LLP
1776 K Street, N.W. Washington, DC 20006 (202) 719-7000 brein@wileyrein.com
Attorneys for Petitioner

244796

A
(800) 274-3321 • (800) 359-6859

i
QUESTION PRESENTED
Whether Congress’ decision in 2006 to reauthorize Section 5 of the Voting Rights Act under the pre-existing coverage formula of Section 4(b) of the Voting Rights Act exceeded its authority under the Fourteenth and Fifteenth Amendments and thus violated the Tenth Amendment and Article IV of the United States Constitution.

ii
PARTIES TO THE PROCEEDING AND RULE 29.6 STATEMENT
Petitioner in this case is Shelby County, Alabama.
Respondents are Eric H. Holder, Jr., in his ofﬁcial capacity as Attorney General of the United States, and Earl Cunningham, Harry Jones, Albert Jones, Ernest Montgomery, Anthony Vines, William Walker, Bobby Pierson, Willie Goldsmith, Sr., Mary Paxton-Lee, Kenneth Dukes, Alabama State Conference of the National Association for the Advancement of Colored People, and Bobby Lee Harris.

iii TABLE OF CONTENTS
Page QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . . . . . i PARTIES TO THE PROCEEDING AND RULE 29.6 STATEMENT . . . . . . . . . . . . . . . . . . . . . . . ii TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . iii TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . vi BRIEF FOR PETITIONER . . . . . . . . . . . . . . . . . . . . . . .1 OPINIONS BELOW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1 JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1 CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED . . . . . . . . . . . . . . . . . . . . . . . .1 STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . .1
A. History of the Voting Rights Act. . . . . . . . . . . . . .1 1. The Voting Rights Act of 1965. . . . . . . . . . . .1 2. The 1970, 1975, and 1982 Reauthorizations . . . . . . . . . . . . . . . . . . . . . . .6 3. The 2006 Reauthorization . . . . . . . . . . . . . . .9 4. The Northwest Austin Litigation . . . . . . . .11

iv
Table of Contents
Page B. Proceedings Below . . . . . . . . . . . . . . . . . . . . . . . .12
SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . 17
ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .23
I. C O N G R E S S D I D N O T B U I L D A RECORD OF CURRENT CONDITIONS ESTABLISHING THAT SECTION 5 PRECLEARANCE REMAINS APPROPRIATE . . . . . . . . . . . . . . .23
A. The w idespread and ingenious voting discrimination that once made Section 5 preclearance an appropriate enforcement remedy has ended. . . . . . . . . .24
B. T he lo we r c ou r t ’s r e a s on s for upholding Section 5 conflict with this Court’s decisions and would justify preclearance in perpetuity . . . . . . .34
II. CONGRESS DID NOT DOCUMENT CURRENT CONDITIONS JUSTIFYING SECTION 4(B)’S UNEQUAL TREATMENT OF SOVEREIGN STATES. . . . . . . . . . . . . . . . .40
A. Section 4(b)’s coverage formula is no longer rational in theory. . . . . . . . . . . . . . . .40

v
Table of Contents Page
B. Section 4( b)’s coverage for mu la is no longer rational in practice. . . . . . . . . .43
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .58
ADDENDUM — RELEVANT STATUTORY PROVISIONS
Fourteenth Amendment to the United States Constitution . . . . . . . . . . . . . . . . . . .1a
Fifteenth Amendment to the United States Constitution . . . . . . . . . . . . . . . . . . .2a
42 U.S.C. § 1973 Voting Rights Act § 2 . . . . . . . . . . . . . . . . . . . . . . . .3a
42 U.S.C. § 1973a Voting Rights Act § 3 . . . . . . . . . . . . . . . . . . . . . . . .4a
42 U.S.C. § 1973b Voting Rights Act § 4 . . . . . . . . . . . . . . . . . . . . . . . .6a
42 U.S.C. § 1973c Voting Rights Act § 5 . . . . . . . . . . . . . . . . . . . . . . .18a

vi

TABLE OF CITED AUTHORITIES Cases:

Page

Allen v. State Bd. of Elections, 393 U.S. 544 (1969) . . . . . . . . . . . . . . . . . . . . . . . . . 2, 28

Beer v. United States, 425 U.S. 130 (1976) . . . . . . . . . . . . . . . . . . . . . . 8, 26, 28

Bond v. United States, 131 S. Ct. 2355 (2011) . . . . . . . . . . . . . . . . . . . . . . . . . .24

Chisom v. Roemer, 501 U.S. 380 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . .31

City of Boerne v. Flores, 521 U.S. 507 (1997) . . . . . . . . . . . . . . . . . . . . . . . passim

City of Pinson v. Holder, 12-cv-255 (D.D.C. Apr. 20, 2012) . . . . . . . . . . . . . . . . .56

City of Rome v. United States, 446 U.S. 156 (1980) . . . . . . . . . . . . . . . . . . . . . . . passim

City of Sandy Springs v. Holder, No. 10-cv-1502 (D.D.C. Oct. 26, 2010) . . . . . . . . . . . . .56

Coleman v. Court of Appeals of Md., 132 S. Ct. 1327 (2012) . . . . . . . . . . . . . . . . . . . .33, 39, 53

Fayetteville v. Cumberland County, No. 90-2029, 1991 WL 23590 (4th Cir. Feb. 28, 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .36

vii
Cited Authorities Page
Georgia v. Ashcroft, 539 U.S. 461 (2003) . . . . . . . . . . . . . . . . . . . . . . . passim
Georgia v. United States, 411 U.S. 526 (1973) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6
Gregory v. Ashcroft, 501 U.S. 452 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . .24
Nev. Dep’t of Human Res. v. Hibbs, 538 U.S. 721 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . .38
Nw. Austin Mun. Util. Dist. No. One v. Holder, 557 U.S. 193 (2009) . . . . . . . . . . . . . . . . . . . . . . . passim
Nw. Austin Mun. Util. Dist. No. One v. Mukasey, 573 F. Supp. 2d 221 (D.D.C. 2008) . . . . . . . . . . . . . . . .53
Oregon v. Mitchell, 400 U.S. 112 (1970) . . . . . . . . . . . . . . . . . . . . . . . . . 17, 34
Presley v. Etowah County Comm’n, 502 U.S. 491 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . .27
Reno v. Bossier Parish Sch. Bd., 520 U.S. 471 (1997) (“Bossier I”). . . . . . . . . . . . . . . . .26
Reno v. Bossier Parish Sch. Bd., 528 U.S. 320 (2000) (“Bossier II”). . . . . . . . . . . passim

viii
Cited Authorities Page
South Carolina v. Katzenbach, 383 U.S. 301 (1966) . . . . . . . . . . . . . . . . . . . . . . . passim
Tennessee v. Lane, 541 U.S. 509 (2004) . . . . . . . . . . . . . . . . . . . . . .34, 37, 38
Terry v. Adams, 345 U.S. 461 (1953) . . . . . . . . . . . . . . . . . . . . . . . . . . . .31
Texas v. United States, 831 F. Supp. 2d 244 (D.D.C. 2011) . . . . . . . . . . . . . . . .26
Thornburg v. Gingles, 478 U.S. 30 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .41
United States v. Bd. of Comm’rs of Shefﬁeld, 435 U.S. 110 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . .24
United States v. Georgia, 546 U.S. 151 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . .33
Constitution & Statutes:
U. S. const. Amendment X . . . . . . . . . . . . . .1, 7, 23, 24, 34
U. S. const. Amendment XIV. . . . . . . . . . . . . . . . . passim
U. S. const. Amendment XV . . . . . . . . . . . . . . . . . passim
28 U.S.C. § 1254(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1

ix Cited Authorities
Page 42 U.S.C. § 1973 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1 42 U.S.C. § 1973a . . . . . . . . . . . . . . . . . . . . . . . . 1, 17, 33, 57 42 U.S.C. § 1973b. . . . . . . . . . . . . . . . . . . . . . . 1, 54, 55, 56 42 U.S.C. § 1973c . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 10 42 U.S.C. § 1973l . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15 42 U.S.C. § 1983 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20 42 U.S.C. § 1988 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .33 Fannie Lou Hamer, Rosa Parks, and Coretta
Scott King Voting Rights Act Reauthorization and Amendments Act of 2006, Pub. L. No. 109246, 120 Stat. 577 (2006) (“VRARAA”) . . . . . . passim Pub. L. No. 89-110, § 2, 79 Stat. 437 (1965) . . . . . . . . . . .2 Pub. L. No. 91-285, 84 Stat. 134 (1982) . . . . . . . . . . . . . . .6 Pub. L. No. 94-73, 89 Stat. 400 (1975) . . . . . . . . . . . . . . . .7 Pub. L. No. 97-205, 96 Stat. 131 (1982) . . . . . . . . . . . . . . .8 Federal Register Notices: 30 Fed. Reg. 9897 (Aug. 7, 1965) . . . . . . . . . . . . . . . . . . . .3

x Cited Authorities
Page 30 Fed. Reg. 14505 (Nov. 19, 1965) . . . . . . . . . . . . . . . . . .3
31 Fed. Reg. 19 (Jan. 4, 1966) . . . . . . . . . . . . . . . . . . . . . . .3
31 Fed. Reg. 982 (Jan. 25, 1966). . . . . . . . . . . . . . . . . . . . .3
31 Fed. Reg. 3317 (Mar. 2, 1966) . . . . . . . . . . . . . . . . . . . .3
36 Fed. Reg. 5809 (Mar. 27, 1971) . . . . . . . . . . . . . . . . . . .6
39 Fed. Reg. 16912 (May 10, 1974) . . . . . . . . . . . . . . . . . . .6
40 Fed. Reg. 43746 (Sept. 23, 1975) . . . . . . . . . . . . . . . . . .7
40 Fed. Reg. 49422 (Oct. 22, 1975). . . . . . . . . . . . . . . . . . .7
41 Fed. Reg. 784 (Jan. 5, 1976) . . . . . . . . . . . . . . . . . . . . . .7
41 Fed. Reg. 34329 (Aug. 13, 1976) . . . . . . . . . . . . . . . . . .7
Other Authorities:
151 Cong. Rec. H5131, H5181 (daily ed. July 13, 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .44
151 Cong. Rec. H5182 (daily ed. July 13, 2006) . . . . . . .49
Richard L. Hasen, Congressional Power to Renew the Preclearance Provisions of the Voting Rights Act after Tennessee v. Lane, 66 Ohio St. L.J. 177 (2005) . . . . . . . . . . . . . . . . . . . . . .30

xi
Cited Authorities
Page H.R. Rep. No. 109-478 (2006) (House Report). . . passim
H.R. Rep. No. 91-397, reprinted in 1970 U.S.C.C.A.N. 3277. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6
Introduction to the Expiring Provisions of the Voting Rights Act, 109th Cong. at 216 (May 9, 2006) . . . . . .35
Ellen Katz & The Voting Rights Initiative, VRI Database Master List, available at http:// sitemaker.umich.edu/votingrights/ﬁles/ masterlist.xls . . . . . . . . . . . . . . . . . . . . . . . . . . .47, 48, 50
Ellen Katz et al., Documenting Discrimination in Voting, 39 U. Mich. J.L. Reform 643 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .36
Modern Enforcement of the Voting Rights Act, Hearing before the Senate Committee on the Judiciary, 109th Cong., at 110 (May 10, 2006) . . . . . .25
Nathaniel Persily, The Promise and Pitfalls of the New Voting Rights Act, 117 Yale L.J. 174 (2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .45
S. Rep. No. 109-295 (2006) (Senate Report). . . . . passim
The Continuing Need for Section 5 PreClearance: Hearing before the Senate Committee on the Judiciary, 109th Cong. (May 16, 2006) . . . . . . . . . . . . . . . . . . . . . . . . . .45, 46, 51

xii
Cited Authorities
Page To Examine the Impact & Effectiveness of
the Voting Rights Act: Hearing Before the Subcommittee on the Constitution of the House Committee on the Judiciary, 109th Cong., at 974, 1019-20 (Oct. 18, 2005) . . . . . . . . . . . . .47
Voting Rights Act: Evidence of Continued Need: Hearing. Before the Subcommittee on the Constitution of the House Committee on the Judiciary, 109th Cong., at 208 (Mar. 8, 2006) . . . . . .51

1
BRIEF FOR PETITIONER
OPINIONS BELOW
The opinion of the United States Court of Appeals for the D.C. Circuit is available at 679 F.3d 848 and is reprinted in the appendix to the Petition for Certiorari (“Pet. App.”) at 1a-110a. The opinion of the United States District Court for the District of Columbia is available at 811 F. Supp. 2d 424 and is reprinted at Pet. App. 111a-291a.
JURISDICTION
The United States Court of Appeals for the D.C. Circuit issued its decision on May 18, 2012. Pet. App. 1a. This Court granted a timely petition for certiorari on November 9, 2012. This Court has jurisdiction under 28 U.S.C. §1254(1).
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
The Fourteenth and Fifteenth Amendments to the United States Constitution and 42 U.S.C. §1973, 42 U.S.C. §1973a, 42 U.S.C. §1973b, and 42 U.S.C. §1973c are reprinted in an addendum to this brief.
STATEMENT OF THE CASE
A. History of the Voting Rights Act
1. The Voting Rights Act of 1965
In 1965, 95 years after the Fifteenth Amendment’s ratiﬁcation, African-Americans were still widely denied

2
the right to vote throughout the South. Despite the Fifteenth Amendment’s unequivocal command, as well as prior congressional efforts to strengthen the ability to challenge voting rights abuses in court, discriminatory devices and extra-legal harassment were rampant. South Carolina v. Katzenbach, 383 U.S. 301, 310-11 (1966). Further, states and localities routinely evaded curative judicial actions by enacting alternatives with the same discriminatory effect. Id at 312-15; Allen v. State Bd. of Elections, 393 U.S. 544, 548 (1969).
To end “nearly a century of systematic resistance to the Fifteenth Amendment” and “to banish the blight of racial discrimination in voting,” Katzenbach, 383 U.S. at 308, 328, Congress invoked its Fifteenth Amendment enforcement authority to enact the Voting Rights Act of 1965 (“VRA”). The VRA created a network of stringent remedies that signaled Congress’ determination to ensure that African-Americans could freely exercise the franchise. Section 2 of the VRA created a nationwide judicial remedy against any “voting qualification or prerequisite to voting, or standard, practice, or procedure … imposed or applied … to deny or abridge the right of any citizen of the United States to vote on account of race or color.” Pub. L. No. 89-110, §2, 79 Stat. 437 (1965). That remedy is available to both government and private plaintiffs.
Other VRA provisions operated against “covered” States and political subdivisions identiﬁed by a statutory formula. A jurisdiction became “covered” if it “maintained on November 1, 1964, any test or device” prohibited by Section 4(a) and “less than 50 per centum of the persons of voting age residing therein were registered on November

3
1, 1964” or “less than 50 per centum of such persons voted in the presidential election of November 1964.” Id. §4(b), 79 Stat. at 438.1 Congress determined that this formula accurately captured those jurisdictions where systematic voting abuses were ongoing and ingenious deﬁance was to be expected. To limit over- and under-inclusion, Congress permitted a presumptively covered jurisdiction to “bailout” by showing that it had not used a “test or device” in the preceding ﬁve years for the purpose or with the effect of denying or abridging the right to vote on account of race, id. §4(a), 79 Stat. at 438, and empowered federal courts in appropriate circumstances to “bail in” a noncovered jurisdiction found to have violated the Fifteenth Amendment, id. §3(c), 79 Stat. at 437.
Those temporary measures, which were enacted for a ﬁve-year period, included a prohibition on the use of certain voting qualiﬁcations (including literacy tests), id. §4(a), 79 Stat. at 438; an exposure to having federal examiners rather than state ofﬁcials administer voting qualiﬁcations, id. §§6(b), 7, 9, 13(a), 79 Stat. at 440-44; and Section 5’s unprecedented “preclearance” requirement, id. §5, 79 Stat. at 439. Section 5 overrode the prerogative of “covered” jurisdictions to establish voting practices and procedures by suspending “any voting qualiﬁcation or prerequisite to voting, or standard, practice, or procedure
1. Alabama, Alaska, Georgia, Louisiana, Mississippi, South Carolina, and Virginia, and parts of North Carolina, Arizona, Idaho, and Hawaii became covered under this formula. See 30 Fed. Reg. 9897 (Aug. 7, 1965); 30 Fed. Reg. 14505 (Nov. 19, 1965); 31 Fed. Reg. 19 (Jan. 4, 1966); 31 Fed. Reg. 982 (Jan. 25, 1966); 31 Fed. Reg. 3317 (Mar. 2, 1966). As a political subdivision of Alabama, Shelby County became a covered jurisdiction. Pet. App. 123a-124a.

4
with respect to voting different from that in force or effect on November 1, 1964” until the Attorney General or a three-judge court in Washington, DC was satisﬁed that the proposed voting change “does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color.” Id. Preclearance prevented flagrant Fifteenth Amendment violators “from circumventing the direct prohibitions imposed by provisions such as §§2 and 4(a).” Nw. Austin Mun. Util. Dist. No. One v. Holder, 557 U.S. 193, 218 (2009) (“Nw. Austin”) (Thomas, J., concurring the judgment in part and dissenting in part).
In 1966, the Court rejected South Carolina’s constitutional challenge to Section 5 preclearance and Section 4(b)’s coverage formula. Katzenbach, 383 U.S. at 324-33. Congress had compiled “reliable evidence of actual voting discrimination in a great majority of the States and political subdivisions affected by the new remedies of the Act,” which justiﬁed Fifteenth Amendment enforcement. Id. at 329. The legislative record painstakingly documented the web of discriminatory practices used to deny AfricanAmericans ballot access, and statistical evidence veriﬁed the widespread impact of voting discrimination throughout the South. The “registration of voting-age Negroes in Alabama rose only from 14.2% to 19.4% between 1958 and 1964; in Louisiana it barely inched ahead from 31.7% to 31.8% between 1956 and 1965; and in Mississippi it increased only from 4.4% to 6.4% between 1954 and 1964. In each instance, registration of voting-age whites ran roughly 50 percentage points or more ahead of Negro registration.” Id. at 313. Moreover, “voter turnout levels in covered jurisdictions ha[d] been at least 12% below the national average in the 1964 Presidential election.” Nw. Austin, 557 U.S. at 222 (Thomas, J.).

5
The Court nevertheless recognized that the VRA was an “uncommon exercise of congressional power” and a departure from the “doctrine of equality of the states.” Katzenbach, 383 U.S. at 328-29, 334. Accordingly, the Court’s decision turned on ﬁnding that Congress had evidence supporting the need for preclearance to combat systematic evasion and that the “covered” jurisdictions had been singled out by a formula “rational in both practice and theory.” Id. at 330.
Preclearance met the urgent need to put an end to gamesmanship in covered jurisdictions. “Congress knew that some of the States covered 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.” Id. at 335. It thus “had reason to suppose that these States might try similar maneuvers in the future in order to evade the remedies prescribed for voting discrimination contained in the Act itself.” Id. Given the failure of traditional alternatives, “the speciﬁc remedies in the Act were an appropriate means of combating the evil.” Id. at 328. “[L]egislative measures not otherwise appropriate” were constitutional under those “exceptional conditions” and “unique circumstances.” Id. at 334-35.
Section 4(b) was rational in theory because “the use of tests and devices for voter registration” were the “tool for perpetrating the evil,” and a voting rate in the 1964 presidential election at least 12 points below the national average” was indicative of “widespread and persistent” efforts to disenfranchise African-Americans. Id. at 330-31. It was rational in practice because the formula omitted none of the jurisdictions where voting discrimination was

6
worst. Id. at 329. That there were “no States or political subdivisions exempted from coverage under §4(b) in which the record reveal[ed] recent racial discrimination involving tests and devices … conﬁrme[d] the rationality of the formula.” Id. at 331.
2. The 1970, 1975, and 1982 Reauthorizations
Congress had “expected that within a 5-year period Negroes would have gained sufﬁcient voting power in the States affected so that special federal protection [by preclearance] would no longer be needed.” H.R. Rep. No. 91-397, reprinted in 1970 U.S.C.C.A.N. 3277, 3281. In 1970, however, Congress found it necessary to reauthorize the expiring provisions for ﬁve years, Pub. L. No. 91-285, 84 Stat. 314 (1970), and to expand Section 4(b)’s formula to add coverage of any jurisdiction that had maintained a prohibited “test or device” on November 1, 1968, and had voter registration on that date or turnout in the 1968 presidential election of less than 50 percent, id. §4, 84 Stat. at 315.2 Congress also extended Section 4(a)’s temporary ban on the use of any prohibited “test or device” to noncovered jurisdictions for a period of ﬁve years. Id. §6, 84 Stat. at 315. The Court upheld the reauthorization as constitutional for “the reasons stated at length in South Carolina v. Katzenbach.” Georgia v. United States, 411 U.S. 526, 435 (1973).
2. Parts of Alaska, Arizona, California, Connecticut, Idaho, Maine, Massachusetts, New Hampshire, New York, and Wyoming became covered because of the 1970 reauthorization. 36 Fed. Reg. 5809 (Mar. 27, 1971); 39 Fed. Reg. 16912 (May 10, 1974).

7
In 1975, Congress extended the VRA’s temporary provisions for seven years, Pub. L. No. 94-73, 89 Stat. 400 (1975), and further expanded coverage to any jurisdiction that had maintained a prohibited “test or device” on November 1, 1972, and had voter registration on that date or turnout in the 1972 presidential election of less than 50 percent, id. §202, 89 Stat. at 401.3 Also, the nationwide ban on prohibited “tests or devices” was made permanent. Id. §201, 89 Stat. at 400.
The Court upheld the 1975 reauthorization. In doing so, it stressed that the “7-year extension of the Act was necessary to preserve the ‘limited and fragile’ achievements of the Act and to promote further amelioration of voting discrimination.” City of Rome v. United States, 446 U.S. 156, 182 (1980). As the Court explained, “significant disparity persisted between the percentages of whites and Negroes registered in at least several of the covered jurisdictions” and “though the number of Negro elected ofﬁcials had increased since 1965, most held only relatively minor positions, none held statewide ofﬁce, and their
3. Congress also amended the deﬁnition of “test or device” to include “any practice or requirement by which any State or political subdivision provided any registration or voting notices, forms, instructions, assistance, or other materials or information relating to the electoral process, including ballots, only in the English language,” in a jurisdiction where more than 5% “of the citizens of voting age residing in such State or political subdivision are members of a single language minority.” Pub. L. No. 94-73, §203, 89 Stat. at 401-402. Alaska, Arizona, Texas, and parts of California, Florida, Michigan, New York, North Carolina, and South Dakota, fell within the 1975 reauthorization. 40 Fed. Reg. 43746 (Sept. 23, 1975); 40 Fed. Reg. 49422 (Oct. 22, 1975); 41 Fed. Reg. 784 (Jan. 5, 1976); 41 Fed. Reg. 34329 (Aug. 13, 1976).

8
number in the state legislatures fell far short of being representative of the number of Negroes residing in the covered jurisdictions.” Id. at 180-81.
In 1982, Congress reauthorized the VRA for 25 years. Pub. L. No. 97-205, 96 Stat. 131 (1982). Congress did not amend Section 5 or Section 4(b)’s coverage formula, but altered Section 4(b)’s bailout provision in several ways. First, Congress permitted a “political subdivision” within a fully-covered State to seek bailout. Id. §2(b)(2), 96 Stat. at 131. Second, Congress made bailout eligibility contingent on speciﬁc categories of conduct by all “governmental units” within the territory seeking bailout. Id. §2(b)(4) (D), 96 Stat. at 131-32. Third, Congress expanded the “clawback” period of the bailout provision from ﬁve years to ten years. Id. §2(b)(5), 96 Stat. at 133.
Although the 1982 reauthorization was not challenged facially, the Court twice interpreted Section 5 to limit the federalism burden of preclearance. In Reno v. Bossier Parish Sch. Bd., 528 U.S. 320 (2000) (“Bossier II”), the Court cautioned that interpreting Section 5’s discriminatory “purpose” preclearance requirement too broadly would exacerbate federalism costs “perhaps to the extent of raising concerns about §5’s constitutionality,” id. at 336. It thus interpreted the “purpose” prong to impose only the “trivial” burden of proving the absence of a “retrogressive” purpose. Id. at 331.
The Court cabined the intrusiveness of Section 5’s “effect” prong in Georgia v. Ashcroft, 539 U.S. 461 (2003). It interpreted “effective exercise of the electoral franchise,” the retrogression standard ﬁrst set forth in Beer v. United States, 425 U.S. 130 (1976), to take into

9
account a “minority group’s opportunity to participate in the political process” and not just “the comparative ability of a minority group to elect a candidate of its choice.” Id. at 479-80. This test more closely tracked the constitutional standard, which guarantees electoral opportunity not electoral results, and thus helped to avoid the equalprotection problems associated with making minority candidate success the exclusive focus of preclearance determinations. Id. at 491 (Kennedy, J., concurring).
3. The 2006 Reauthorization
Prior to Section 5’s expiration, Congress held reauthorization hearings addressing particular topics, including the preclearance standard, this Court’s interpretations of Section 5 between 1982 and 2006, evidence supporting the “continuing need” for preclearance, and possible modiﬁcation of the coverage formula. The Senate and House of Representatives issued reports summarizing their ﬁndings. H.R. Rep. No. 109-478 (2006) (“House Report”); S. Rep. No. 109-295 (2006) (“Senate Report”).
In 2006, Congress reauthorized the VRA for another 25 years. 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 (2006) (“VRARAA”). Congress acknowledged “that the number of African-Americans who are registered and who turn out to cast ballots ha[d] increased signiﬁcantly over the last 40 years, particularly since 1982. In some circumstances, minorities register to vote and cast ballots at levels that surpass those of white voters.” House Report at 12. Congress also found that “the disparities between

10
African-American and white citizens who are registered to vote ha[d] narrowed considerably in six southern States covered by the temporary provisions … and … North Carolina.” Id. Congress concluded that “many of the ﬁrst generation barriers to minority voter registration and voter turnout that were in place prior to the VRA ha[d] been eliminated.” Id.
Despite these gains, Congress did not update Section 4(b)’s coverage formula, choosing again to base coverage on election data from 1964, 1968, and 1972. Nor did Congress ease Section 5’s preclearance burden. Instead, it made the burden more onerous by amending Section 5 to overrule Bossier II and Ashcroft. Section 5’s “purpose” prong now denies preclearance to a change made for “any discriminatory purpose,” 42 U.S.C. §1973c(c), and its “effect” prong now requires denial of preclearance if the change “diminish[es] the ability of [minority] citizens … to elect their preferred candidates of choice,” id. §1973c(b), (d). And unlike in 1965, 1970, and 1975—where Congress imposed preclearance for periods of ﬁve and seven years despite deep and widespread voting discrimination in covered jurisdictions—the 2006 reauthorization extended Section 5 for an additional twenty-ﬁve years.
Congress justiﬁed reauthorization by ﬁnding that “vestiges of discrimination in voting continue to exist as demonstrated by second generation barriers constructed to prevent minority voters from fully participating in the electoral process.” VRARAA, §2(b)(2), 120 Stat. at 577. These “second generation” barriers were evidenced by racially polarized voting; Section 5 preclearance statistics; “section 2 litigation ﬁled to prevent dilutive techniques from adversely affecting minority voters; the enforcement

11
actions ﬁled to protect language minorities; and the tens of thousands of Federal observers dispatched to monitor polls in jurisdictions covered by the [VRA].” Id. §2(b)(8), 120 Stat. at 578.
4. The Northwest Austin Litigation
In resolving a constitutional challenge by a covered jurisdiction on statutory grounds, the Court in Northwest Austin held that the VRA’s “preclearance requirements and its coverage formula raise serious constitutional questions” in light of dramatic changes in the covered jurisdictions. 557 U.S. at 204. Writing for eight Justices, Chief Justice Roberts explained that Section 5 “imposes current burdens and must be justiﬁed by current needs,” and Section 4(b)’s “departure from the fundamental principle of equal sovereignty requires a showing that a statute’s disparate geographic coverage is sufﬁciently related to the problem that it targets.” Id. at 203. “These federalism concerns are underscored by the argument that the preclearance requirements in one State would be unconstitutional in another. Additional constitutional concerns are raised in saying that this tension between §§2 and 5 must persist in covered jurisdictions and not elsewhere.” Id.
Justice Thomas would have decided the merits of the constitutional challenge. In his view, “the lack of current evidence of intentional discrimination with respect to voting” meant that Section 5 “could no longer be justiﬁed as an appropriate mechanism for enforcement of the Fifteenth Amendment.” Id. at 216. Justice Thomas recognized that “Congress passed §5 of the VRA in 1965 because that promise had remained unfulﬁlled for far too

12
long. But now—more than 40 years later—the violence, intimidation, and subterfuge that led Congress to pass §5 and this Court to uphold it no longer remains. An acknowledgment of §5’s unconstitutionality represents a fulﬁllment of the Fifteenth Amendment’s promise of full enfranchisement and honors the success achieved by the VRA.” Id. at 229.
B. Proceedings Below
1. In April 2010, Shelby County, seeking resolution of the “serious constitutional questions” unresolved in Northwest Austin, sought a declaration that Section 5 and Section 4(b) are facially unconstitutional and a permanent injunction prohibiting the Attorney General from enforcing those provisions. The district court granted summary judgment to the Attorney General, Pet. App. 111a-291a, and Shelby County timely appealed.
2. By a 2-1 vote, the D.C. Circuit afﬁrmed. Writing for the majority, Judge Tatel concluded that “Northwest Austin sets the course for our analysis,” thus requiring that Section 5’s “‘current burdens’” be justiﬁed by “‘current needs’” and that Section 4(b)’s “‘disparate geographic coverage [be] sufﬁciently related to the problem that it targets’” to justify its departure from the fundamental principle of “‘equal sovereignty.’” Id. 14a-15a (quoting Nw. Austin, 557 U.S. at 203).
Turning to the evidence needed to sustain Section 5’s reauthorization, the court concluded that preclearance need not be justiﬁed by “a widespread pattern of electoral gamesmanship showing systematic resistance to the Fifteenth Amendment.” Id. 24a. In its view, the issue was

13
not “whether the legislative record reﬂects the kind of ‘ingenious deﬁance’ that existed prior to 1965, but whether Congress has documented sufﬁciently widespread and persistent racial discrimination in voting in covered jurisdictions to justify its conclusion that section 2 litigation remains inadequate.” Id. 26a. Also, although acknowledging that “the Supreme Court … has [n]ever held that [intentional] vote dilution violates the Fifteenth Amendment,” the court concluded that Congress could rely on such evidence because Section 5 also enforces the Fourteenth Amendment. Id. 27a.
“Having resolved these threshold issues,” id. 29a, the court held the legislative record sufﬁcient to sustain Section 5. It found that “the record contains numerous ‘examples of modern instances’ of racial discrimination in voting,” id. 29a (quoting City of Boerne v. Flores, 521 U.S. 507 530 (1997)), and that “several categories of evidence in the record support Congress’ conclusion that intentional racial discrimination in voting remains so serious and widespread in covered jurisdictions that Section 5 preclearance is still needed,” id. 31a. The court also concluded that Section 5’s “deterrent” effect supported reauthorization, id. 47a, and ultimately held that Congress’ decision was “reasonable” and “deserves judicial deference,” id. 68a, 48a.
The court also upheld Section 4(b). It rejected Shelby County’s argument that the formula is no longer rational in theory as “rest[ing] on a misunderstanding” because Congress did not rely on any logical connection between the concededly outdated triggers for coverage and the evidence on which Congress purported to rely. Id. 56a. The court concluded that the coverage triggers “were

14
never selected because of something special that occurred in those years.” Id. Congress “identiﬁed the jurisdictions it sought to cover … and then worked backward reverseengineering a formula to cover those jurisdictions.” Id. The court nevertheless recognized that whether Section 4(b) was constitutional “present[ed] a close question” given the evidence of Section 2 litigation that Congress included in the legislative record. Id. 58a (discussing the Katz Study of Section 2 litigation).
Relying on a post-enactment declaration that the United States submitted to the district court, the court found that several covered States “appear to be engaged in much more unconstitutional discrimination compared to non-covered jurisdictions than the Katz data alone suggests.” Id. 59a. The court reasoned that these States “appear comparable to some non-covered states only because section 5’s deterrent and blocking effect screens out discriminatory laws before section 2 litigation becomes necessary.” Id 59a-60a. Finally, (again relying on postenactment evidence) it concluded that the availability of bail-in and bailout alleviated any remaining concerns with Section 4(b)’s imperfections. Id. 61a-65a.
3. Judge Williams dissented. He found Section 4(b)’s coverage criteria defective whether “viewed in absolute terms (are they adequate in themselves to justify the extraordinary burdens of §5?) or in relative ones (do they draw a rational line between covered and uncovered jurisdictions?).” Id. 70a. Per Judge Williams, although “sometimes a skilled dart-thrower can hit the bull’s eye throwing a dart backwards over his shoulder … Congress hasn’t proven so adept.” Id.

15
Judge Williams explained that the requirement that Section 4(b) be “sufﬁciently related to the problem it targets” means that “[t]he greater the burdens imposed by §5, the more accurate the coverage scheme must be.” Id. 71a. He found several aspects of the preclearance regime troubling. First, Section 5 creates severe federalism problems by “mandat[ing] anticipatory review of state legislative or administrative acts, requiring state and local ofﬁcials to go hat in hand to Justice Department officialdom to seek approval of any and all proposed voting changes.” Id. Second, Section 5’s “broad sweep” applies “without regard to kind or magnitude” of the voting change. Id. 72a. Third, the 2006 amendments to the preclearance standard increased Section 5’s federalism burden and “not only disregarded but ﬂouted Justice Kennedy’s” equal-protection concerns. Id. 73a.
Judge Williams agreed that “[w]hether Congress is free to impose §5 on a select set of jurisdictions also depends in part … on possible shortcomings in the remedy that §2 provides for the country as a whole.” Id. 77a. But he added that “it is easy to overstate the inadequacies of §2, such as cost and the consequences of delay” because “plaintiffs’ costs for §2 suits can in effect be assumed by” the Department of Justice (“DOJ”), and where DOJ does not step in, “§2 provides for reimbursement of attorney and expert fees for prevailing parties.” Id. (citing 42 U.S.C. §1973l(e)). Further, courts can “use the standard remedy of a preliminary injunction to prevent irreparable harm caused by adjudicative delay.” Id. 77a-78a.
Judge Williams then reasoned that “a distinct gap must exist between the current level of discrimination in the covered and uncovered jurisdictions in order to

16
justify subjecting the former group to §5’s harsh remedy, even if one might ﬁnd §5 appropriate for a subset of that group.” Id. 78a. Instead he found a negative correlation “between inclusion in §4(b)’s coverage formula and low black registration or turnout,” noting that “condemnation under §4(b) is a marker of higher black registration and turnout.” Id. 83a. The same was true for minority elected ofﬁcials. Id. 85a.
Evidence of “second generation” barriers only further undermined the formula. Id. 91a-93a. “The ﬁve worst uncovered jurisdictions … have worse records than eight of the covered jurisdictions …. Of the ten jurisdictions with the greatest number of successful §2 lawsuits, only four are covered …. A formula with an error rate of 50% or more does not seem ‘congruent and proportional.’” Id. 93a. Judge Williams rejected as unreliable the Attorney General’s post-enactment survey of “purportedly successful, but unreported §2 cases.” Id. 93a-94a. Judge Williams also attributed no signiﬁcance to Section 5’s “deterrent effect” as it “would justify continued VRA renewals out to the crack of doom. Indeed, Northwest Austin’s insistence that ‘current burdens … must be justiﬁed by current needs’ would mean little if §5’s supposed deterrent effect were enough to justify the current scheme.” Id. 94a. And he explained that “tacking on a waiver procedure such as bailout” could never solve the coverage formula’s severe problems. Id. 101a (citation and quotation omitted).
Judge Williams thus concluded that “[b]ased on any of the comparative data available to us, and particularly those metrics relied on in Rome, it can hardly be argued that there is evidence of a substantial amount of voting

17
discrimination in any of the covered states, and certainly not at levels anywhere comparable to those the Court faced in Katzenbach.” Id. 96a. “[T]here is little to suggest that §4(b)’s coverage formula continues to capture jurisdictions with especially high levels of voter discrimination.” Id. 104a. Section 4(b) could not satisfy “Northwest Austin’s requirement that current burdens be justiﬁed by current needs.” Id.
SUMMARY OF THE ARGUMENT
The Fifteenth Amendment’s guarantee that “[t]he right of citizens … to vote shall not be denied or abridged by … any State on account of race, color or previous condition of servitude,” U.S. Const. amend. XV, §1, limits but does not usurp the States’ sovereign power to regulate elections, see Oregon v. Mitchell, 400 U.S. 112, 126 (1970). When Congress, as in the VRA, seeks “to enforce this article,” U.S. Const. amend. XV, §2, it is the Article III responsibility of this Court to ensure that Congress is reacting to constitutional violations and has appropriately addressed them without intruding into matters reserved to the States under the Tenth Amendment or unjustiﬁably denying equal State sovereignty. See Nw. Austin, 557 U.S. at 205.
The VRA created a network of prophylactic remedies designed “to banish the blight of racial discrimination in voting, which ha[d] infected the electoral process in parts of our country for nearly a century.” Katzenbach, 383 U.S. at 308. Section 2, as amended, creates a nationwide right of action and bans any law that even unintentionally “results in a denial or abridgment” of the right to vote. 42 U.S.C. §1973(a). Congress also has permanently outlawed literacy

18
tests and other ballot-access restrictions that were used to disenfranchise minority voters. And Congress has enacted a “bail in” provision that can subject any state or local jurisdiction found to have violated constitutional voting rights to judicially-supervised preclearance. None of these provisions is challenged here.
Shelby County challenges the reauthorization until 2031 of Section 5’s preclearance obligation and Section 4(b)’s coverage formula. Section 5 exacts a heavy, unprecedented federalism cost by forbidding the implementation of all voting changes in jurisdictions identiﬁed by Section 4(b) until federal ofﬁcials are satisﬁed that the changes do not undermine minority voting rights. Nw. Austin, 557 U.S. at 202. And Section 4(b)’s coverage formula “differentiates between the States, despite our historic tradition that all the States enjoy equal sovereignty.” Id. at 203 (citation and quotation omitted). Whether these “legislative measures not otherwise appropriate” remain constitutional under current conditions is the crux of this case. Katzenbach, 383 U.S. at 335.
This Court has previously upheld the preclearance regime against facial constitutional challenge under conditions then-prevailing in covered jurisdictions. Id. at 303; Rome, 446 U.S. at 180-81. But “[p]ast success alone … is not adequate justiﬁcation to retain the preclearance requirements.” Nw. Austin, 557 U.S. at 202. Section 5 “imposes current burdens and must be justiﬁed by current needs.” Id. at 203. Absent the documented “widespread and persisting” pattern of constitutional violations and the continuing alteration of discriminatory voting laws to circumvent minority litigation victories that supported preclearance in the ﬁrst place, Section 5’s federalism cost is too great. Katzenbach, 383 U.S. at 309.

19
In 2006, Congress was unable to develop this record. Congress acknowledged that “many of the ﬁrst generation barriers to minority voter registration and voter turnout that were in place prior to the VRA ha[d] been eliminated.” House Report at 12. Indeed, there is broad agreement that “[t]hings have changed in the South .... Blatantly discriminatory evasions of federal decrees are rare.” Voter registration and turnout “now approach parity” and “minority candidates hold ofﬁce at unprecedented levels.” Nw. Austin, 557 U.S. at 202 (citations omitted).
At most, the 2006 legislative record shows scattered and limited interference with voting rights, a level plainly insufﬁcient to sustain Section 5 preclearance. The lower court speculated that the lack of evidence of discriminatory practices in the covered jurisdictions arose not from changed attitudes, but from Section 5’s “deterrent” effect. Pet. App. 42a-44a. But speculative deterrence is plainly insufﬁcient to impose preclearance. Congress needed to ﬁnd that Section 5 was justiﬁed under actual conditions uniquely present in the covered jurisdictions; it could not proceed from an unsubstantiated and unbounded assumption that the covered jurisdictions have a latent propensity to discriminate that does not exist elsewhere in the country. Nw. Austin, 557 U.S. at 226 (Thomas, J.); Pet. App. 94a (Williams, J.).
In 2006, Congress shifted its reliance to evidence of “second generation” barriers that are not even remotely probative of intentional interference with the right to vote—let alone the kind of systematic violations that previously justiﬁed Section 5. Nw. Austin, 557 U.S. at 228 (Thomas, J.); Pet. App. 97a (Williams, J.). Moreover, Congress could not legitimately rely on vote dilution to

20
ﬁll the gap in the legislative record. Vote dilution does not violate the Fifteenth Amendment, Bossier II, 528 U.S. at 334 n.3, and this Court has never upheld Section 5 under the Fourteenth Amendment, Pet. App. 27a. Preclearance is not an appropriate remedy for practices that affect the weight of votes cast and can be effectively addressed via Section 2.
Nothing in the legislative record indicates that more traditional and less intrusive remedies such as 42 U.S.C. §1983 and Section 2 of the VRA are an inadequate solution for the residuum of voting discrimination. In fact, “the majority of §5 objections today concern redistricting,” Pet. App. 99a (Williams, J.), and Section 2 is an effective vehicle for challenging redistricting changes—especially statewide redistricting plans. Moreover, there is no evidence in the legislative record that adverse Section 2 decrees are being evaded by recalcitrant jurisdictions, and the discriminatory tests and devices that recalcitrant jurisdictions employed to make case-by-case litigation futile have been permanently banned.
Unlike Section 5’s sweeping suspension of all voting changes, Section 2 creates a nationwide right of action allowing direct challenge to discriminatory voting laws and thus ties its remedy to proven violations. Especially in conjunction with Section 3’s bail-in mechanism, which can be utilized to remedy a judicial ﬁnding that a jurisdiction has violated constitutional voting rights, Section 2 is now the “appropriate” prophylactic remedy for any pattern of discrimination that Congress documented in the 2006 legislative record.

21
But even if preclearance were still appropriate for some jurisdictions, Section 4(b)’s coverage formula is a wholly inappropriate mechanism for identifying them. In Katzenbach, the Court upheld Section 4(b)’s coverage formula because it accurately captured “the geographic areas where immediate action seemed necessary” and where “local evils” had caused signiﬁcant violations of Fifteenth Amendment voting rights. 383 U.S. at 328-29. The Court therefore found the formula “rational in both practice and theory.” Id. at 330. In other words, Section 4(b)’s “disparate geographic coverage [must be] sufﬁciently related to the problem that it targets.” Nw. Austin, 557 U.S. at 203. “The evil that §5 is meant to address” must remain “concentrated in the jurisdictions singled out for preclearance” and must “account[s] for current political conditions.” Id. The reauthorized coverage formula cannot meet this standard.
The formula is not rational in theory. Katzenbach held that the “the misuse of tests and devices … was the evil for which the new remedies were speciﬁcally designed” and that “a low voting rate [was] pertinent for the obvious reason that widespread disenfranchisement must inevitably affect the number of actual voters.” 383 U.S. at 330-31. Thus, the Court found a rational connection between the triggers for coverage and the problems that preclearance was devised to remedy. But that rational connection no longer exists. Congress justiﬁed Section 5’s reauthorization based on “second generation” barriers in the record, which relate primarily to the weight of a vote once cast. Yet coverage under Section 4(b) continues to depend only on registration and turnout data from 1964, 1968, and 1972, which point to decades-old ballot-access interference. Accordingly, there is a serious mismatch

22
between the formula’s triggers for coverage and the purported constitutional basis for reauthorization of preclearance.
The formula fares no better in practice. If the statutory benchmarks for coverage had been applied to the last three presidential elections preceding reauthorization, Hawaii (which is not covered) would be the only State subject to preclearance. Further, the “second generation barriers” are not “concentrated in the jurisdictions singled out for coverage.” Nw. Austin, 557 U.S. at 203. Section 2 litigation and racially polarized voting occur nationwide. If Congress were serious about imposing preclearance on jurisdictions where such problems are most prominent, States like New York, Illinois, and Tennessee would have been covered instead of many (if not most) of the covered jurisdictions. The “modest palliative” of bailout, which now looks to a covered jurisdiction’s ongoing compliance with Section 5 rather than whether it should have been covered in the first place, cannot save such an inappropriate formula. Pet. App. 101a (Williams, J.).
* * *
The Voting Rights Act of 1965 changed the course of history in the covered jurisdictions. But the record before Congress in 2006 bears little resemblance to the record that led the Court to uphold Section 5’s sweeping prophylactic remedy in Katzenbach and Rome. “Admitting that a prophylactic law as broad as §5 is no longer constitutionally justified based on current evidence of discrimination is not a sign of defeat. It is an acknowledgment of victory.” Nw. Austin, 557 U.S. at 226 (Thomas, J.). Sections 5 and 4(b) have accomplished their

23
mission and their encroachment on Tenth Amendment rights and the constitutional principle of equal sovereignty is no longer appropriate.
ARGUMENT
I. Congress Did Not Build A Record Of Current Conditions Establishing That Section 5 Preclearance Remains Appropriate.
Northwest Austin “sets the course” for evaluating whether reauthorizing Section 5 for another 25 years appropriately enforces the Fifteenth or Fourteenth Amendment. Pet. App. 14a. Section 5 “imposes current burdens and must be justiﬁed by current needs” because “[p]ast success alone … is not adequate justiﬁcation to retain the preclearance requirements.” Nw. Austin, 557 U.S. at 202-03.4 Congress must establish, in other words, that “exceptional conditions” and “unique circumstances” previously justifying “legislative measures not otherwise appropriate” still exist. Katzenbach, 383 U.S. at 334. As shown below, changes over time have foreclosed that ﬁ nding.
4. “[T]he questions the Court raised” in Northwest Austin are the “very questions one would ask to determine whether section 5 is ‘congruen[t] and proportional[ ] [to] the injury to be prevented.’” Pet. App. 16a (quoting Boerne, 521 U.S. at 520). Although Boerne has been applied in the Fourteenth Amendment setting, it should apply equally in Fifteenth Amendment cases given the “parallel” enforcement clauses. Boerne, 521 U.S. at 518. Regardless, Section 5 and Section 4(b) are no longer “appropriate” enforcement legislation under any applicable standard of review.

24
A. The widespread and ingenious voting discrimination that once made Section 5 preclearance an appropriate enforcement remedy has ended.
The Court repeatedly has found that Section 5 imposes burdens on States different in kind from any other federal enforcement remedy. “[The] Framers of the Constitution intended the States to keep for themselves, as provided in the Tenth Amendment, the power to regulate elections.” Gregory v. Ashcroft, 501 U.S. 452, 461-62 (1991). Preclearance overrides that sovereign authority and goes far “beyond the prohibition of the Fifteenth Amendment by suspending all changes to state election law—however innocuous—until they have been precleared by federal authorities in Washington, D.C.” Nw. Austin, 557 U.S. at 202. It thus prevents covered jurisdictions from “respond[ing], through the enactment of positive law, to the initiative of those who seek a voice in shaping the destiny of their own times without having to rely solely upon the political processes that control a remote central power.” Bond v. United States, 131 S. Ct. 2355, 2364 (2011). By design, then, Section 5 is “one of the most extraordinary remedial provisions in an Act noted for its broad remedies” and a “substantial departure … from ordinary concepts of our federal system; its encroachment on state sovereignty is signiﬁcant and undeniable.” United States v. Bd. of Comm’rs of Shefﬁeld, 435 U.S. 110, 141 (1978) (Stevens, J., dissenting).
Section 5’s federalism costs are also concrete. Preclearance has an outsized effect on the basic operation of state and local government. Based on the experience of covered jurisdictions between 1982 and 2006, renewed

25
Section 5 will foreclose the implementation of more than 100,000 electoral changes unless and until they are precleared. Senate Report at 13-14. Under Section 5, a covered jurisdiction that wishes to change its laws must either go “hat in hand to [DOJ] ofﬁcialdom to seek approval,” Pet. App. 71a (Williams, J.), or embark on expensive litigation in a remote judicial venue if it wishes to make any voting change. Both routes can be burdensome and require covered jurisdictions to allocate substantial resources to Section 5 compliance. Brief of Arizona, Alabama, Georgia, South Carolina, South Dakota, and Texas as Amici Curiae in Support of Petitioner at 23-26, No. 12-96 (ﬁled August 23, 2012). “Without any measureable beneﬁt, preclearance compliance has over the past decade required the commitment of state and local resources easily valued at over a billion dollars.” Modern Enforcement of the Voting Rights Act, Hearing before the Senate Committee on the Judiciary, 109th Cong., at 110 (May 10, 2006) (Coleman).
Congress compounded the burdens of preclearance in 2006 by expanding the substantive grounds for denying preclearance at a time when the “conditions that [the Court] relied upon in upholding the statutory scheme in Katzenbach and [Rome] ha[d] unquestionably improved.” Nw. Austin, 557 U.S. at 202. Given this improvement in conditions throughout the covered jurisdictions, any increase in the preclearance burden is by definition “an unwarranted response” to the problem confronting Congress. Boerne, 521 U.S. at 530. There is no justiﬁcation for making it more difﬁcult to secure preclearance in 2006 than it was in 1965.

26
Congress’ changes to Section 5 only made matters worse. “As a practical matter it is never easy to prove a negative.” Reno v. Bossier Parish School Bd., 520 U.S. 471, 480 (1997) (“Bossier I”) (citations and quotations omitted). But preclearance must now be denied unless a covered jurisdiction proves the absence of “any discriminatory purpose.” VRARAA, 120 Stat. at 577 (2006). Congress thus ignored this Court’s warning that imposing such a difficult preclearance burden “would exacerbate the substantial federalism costs that the preclearance procedure already exacts, perhaps to the extent of raising concerns about §5’s constitutionality.” Bossier II, 528 U.S. at 321-22 (citations and quotations omitted).
The amended preclearance standard also forecloses any change that diminishes a minority group’s “ability to elect” a favored candidate even if it would not interfere with any voter’s “effective exercise of the electoral franchise,” Beer, 425 U.S. at 141. By changing Section 5’s mission from preventing “backsliding,” Bossier II, 528 U.S. at 335, to ensuring a certain number of minoritypreferred elected ofﬁcials, Congress further detached Section 5 from its original anti-discrimination objective. The “ability to elect” standard makes preclearance far more difﬁcult to secure, see, e.g., Texas v. United States, 831 F. Supp. 2d 244 (D.D.C. 2011), and exacerbates the concern that, by making race the “predominant factor,” Congress has created a “scheme in which [DOJ] is permitted or directed to encourage or ratify a course of unconstitutional conduct in order to ﬁnd compliance with a statutory directive.” Ashcroft, 539 U.S. at 491 (Kennedy, J., concurring). The 2006 preclearance standard thus “aggravates both the federal-state tension with which Northwest Austin was concerned and the tension between

27
§5 and the Reconstruction Amendments’ commitment to non-discrimination.” Pet. App. 75a (Williams, J.).
2. A uniquely burdensome enforcement remedy that radically departs from the ordinary operation of our federal system can be supported only by a legislative record documenting “current needs” of corresponding magnitude. It was the “unremitting and ingenious deﬁance” of the Fifteenth Amendment that justiﬁed this uncommon remedy in Katzenbach. 383 U.S. at 309. Then, registration data, turnout statistics, and the absence of minorities in public ofﬁce, all of which the Court deemed reasonable barometers of pervasive interference with the right to register and vote, showed that the deﬁance was unremitting. Id. at 313, 329-30. In Rome, the Court further examined the “number and nature of [Section 5] objections interposed by the Attorney General” between 1965 and 1975. 446 U.S. at 181. This was all considered “reliable evidence of actual voting discrimination.” Katzenbach, 383 U.S. at 329. Thus, while the “suspension of new voting regulations pending preclearance was an extraordinary departure from the traditional course of relations between the States and the Federal Government,” it was “constitutional as a permitted congressional response to the unremitting attempts by some state and local ofﬁcials to frustrate their citizens’ equal enjoyment of the right to vote.” Presley v. Etowah County Comm’n, 502 U.S. 491, 500-01 (1992) (citing Katzenbach, 383 U.S. at 334).
But more than the documented refusal to honor Fifteenth Amendment guarantees made preclearance necessary; preclearance responded to “the extraordinary stratagem of contriving new rules of various kinds for the sole purpose of perpetrating voting discrimination in the

28
face of adverse federal court decrees.” Katzenbach, 383 U.S. at 328, 335. The congressional record documented the “common practice in some jurisdictions of staying one step ahead of the federal courts by passing new discriminatory voting laws as soon as the old ones had been struck down.” Beer, 425 U.S. at 140; Allen, 393 U.S. at 548. Hence, “Section 5 was directed at preventing a particular set of invidious practices that had the effect of undo[ing] or defeat[ing] the rights recently won by nonwhite voters.” Miller, 515 U.S. at 925.
The invidious practice of subtly and continuously altering discriminatory voting laws to circumvent the effect of minority litigation victories gave Congress “reason to suppose that these States might try similar maneuvers in the future in order to evade the remedies for voting discrimination contained in the Act itself. Under these unique circumstances, Congress responded in a permissibly decisive manner.” Katzenbach, 383 U.S. at 335. In short, “the constitutionality of §5 has always depended on the proven existence of intentional discrimination so extensive that elimination of it through case-by-case enforcement would be impossible.” Nw. Austin, 557 U.S. at 225 (Thomas, J.).
3. The 2006 legislative record failed to document “current needs” that could justify the “current burdens” of preclearance. Nothing in the record suggests that covered jurisdictions remain engaged in the pervasive voting discrimination and electoral gamesmanship that once made case-by-case adjudication of constitutional violations a futile enterprise and spurred Congress to act. Section 5 is only constitutionally defensible as a last resort. Because such extraordinary conditions no longer exist, Congress failed to “justify legislative measures not otherwise appropriate.” Katzenbach, 383 U.S. at 334.

29
Evidence related to restricted ballot access that the Court relied on in Katzenbach and Rome conﬁrms that current conditions cannot justify preclearance. As Congress found, “signiﬁcant progress has been made in eliminating first generation barriers experienced by minority voters, including increased numbers of registered minority voters, minority voter turnout, and minority representation in Congress, State legislatures, and local elected ofﬁcials.” VRARAA, §2(b)(1), 120 Stat. at 577; House Report at 12 (concluding that “many of the ﬁrst generation barriers to minority voter registration and voter turnout that were in place prior to the VRA have been eliminated”). “Things have changed in the South. Voter turnout and registration rates now approach parity. Blatantly discriminatory evasions of federal decrees are rare. And minority candidates hold ofﬁce at unprecedented levels.” Nw. Austin, 557 U.S. at 202.
The “number and nature” of Section 5 objections, Rome, 446 U.S. at 181, further conﬁrms that a prior restraint is unnecessary. Between 1982 and 2004, only 0.74% of all preclearance submissions resulted in an objection (752 of 101,440 submissions). Senate Report at 13. Even more signiﬁcantly, the objection rate has been declining steadily. In 1982, the objection rate was 2.32%; by 2003, the rate had fallen to 0.17%, and the rates in 2004 and 2005 were 0.06% and 0.02%, respectively.5 Id. In the year before Section 5’s reauthorization, the Attorney General objected to one preclearance submission. By comparison, the objection rate between 1965 and 1974 was 14.2%. House Report at 22. That difference is massive.
5. The Senate Report indicates that the objection rate was 0.002% in 2005. This figure is inaccurate. It reflects a computational error that becomes apparent when the numbers of submissions are compared with the number of objectives.

30
If that rate had prevailed, there would have been 14,404 objections between 1982 and 2004 instead of only 752. This evidence does not remotely suggest “unremitting” and “ingenious” deﬁance of minority voting rights.
Furthermore, unlike the “nature” of preclearance objections from the years immediately following the VRA’s passage, modern preclearance denials are “poor proxies for intentional discriminatory state action in voting.” Richard L. Hasen, Congressional Power to Renew the Preclearance Provisions of the Voting Rights Act after Tennessee v. Lane, 66 Ohio St. L.J. 177, 190 (2005). A preclearance denial provides no proof of intentional discrimination because Section 5’s proper focus during the relevant period was retrogression. Ashcroft, 539 U.S. at 480; Miller, 515 U.S. at 926. And even when the Attorney General went beyond his statutory authority to block preclearance submissions based on a covered jurisdiction’s purportedly discriminatory intent, he often did so in pursuit of the unconstitutional “‘blackmaximization’ policy.” Miller, 515 U.S. at 921. Nor are more information requests from the DOJ (“MIRs”) evidence of a constitutional violation; they show only that the Attorney General has “insufﬁcient information … to enable” him “to make a [preclearance] determination.” House Report at 40. Preclearance statistics between 1982 and 2006—administrative or judicial—thus are not “reliable evidence of actual voting discrimination.” Katzenbach, 383 U.S. at 329.6
6. A Section 5 enforcement action is similarly unreliable, see VRARAA, §2(b)(4)(A), as it can establish only that a voting change—and quite possibly a nondiscriminatory one—was not properly submitted for preclearance.

31
The other evidence of “second generation” barriers is even less indicative of voting discrimination. Racially polarized voting, which Congress called the “clearest and strongest evidence” of the need to reauthorize Section 5, House Report at 34; VRARAA, §2(b)(3), 120 Stat. at 577, is not governmental discrimination—the only type of conduct Congress may remedy, Terry v. Adams, 345 U.S. 461, 473 (1953)—let alone intentional discrimination. “[T]he continued ﬁling of section 2 cases,” VRARAA, §2(b) (4)(C), 120 Stat. at 578, establishes nothing more than a yet-unproven allegation that a law not requiring proof of intentional discrimination has been violated, Chisom v. Roemer, 501 U.S. 380, 393 (1991). And the dispatching of election observers, VRARAA, §2(b)(5), 120 Stat. at 578, reﬂects only the Attorney General’s prediction that there might be conduct with the effect of disenfranchising minority citizens, which might or might not be intentional voting discrimination. House Report at 44. In sum, “second generation” evidence “bears no resemblance to the record initially supporting §5, and is plainly insufﬁcient to sustain such an extraordinary remedy.” Nw. Austin, 557 U.S. at 228 (Thomas, J.).
But even if the Court gives weight to all of the evidence in the legislative record, it at most shows scattered and limited interference with Fifteenth Amendment rights in some covered jurisdictions and thus cannot sustain a remedy as intrusive as preclearance. Like the Religious Freedom Restoration Act, Section 5’s “sweeping coverage ensures its intrusion at every level of government, displacing laws and prohibiting ofﬁcial actions.” Boerne, 521 U.S. at 532. Given Section 5’s unprecedented federalism costs, Nw. Austin, 557 U.S. at 202, “[t]he burden remains with Congress to prove that the urgent

32
circumstances warranting §5’s enactment persist today. A record of scattered infringement of the right to vote is not a constitutionally acceptable substitute,” id. at 229 (Thomas, J.).
In addition, most of this scattered evidence relates to vote dilution. Pet. App. 28a-29a. But vote dilution does not violate the Fifteenth Amendment, Bossier II, 528 U.S. at 334 n.3; Pet. App 27a, thus distinguishing this case from Katzenbach and Rome, which upheld Section 5 exclusively under the Fifteenth Amendment. And even assuming that Congress also acted under Section 5 of the Fourteenth Amendment, the legislative record does not reﬂect vote dilution so serious as to warrant preclearance of all voting changes. Congress identiﬁed only twelve published judicial decisions between 1982 and 2006 with a ﬁnding of intentional discrimination, and half of them involved discrimination against white voters. Senate Report at 13. Nor is there evidence that covered jurisdictions have tried to evade federal decrees arising from a judicial ﬁnding of intentional vote dilution.
In any event, the character of modern vote dilution cannot justify preclearance. Whereas the South during the 1960s was plagued with vote-denial schemes interfering with ballot access, modern vote dilution claims involve diminishing the effect of ballots once cast. Because there are countless ways to suppress minorities’ ability to cast votes, Section 2 suits in the vote-denial context were particularly vulnerable to “the extraordinary stratagem of contriving new rules … in the face of adverse federal court decrees.” Katzenbach, 383 U.S. at 335. In contrast, because vote-dilution claims involving minorities’ groupvoting power typically arise in the districting context, it

33
is nearly impossible for a jurisdiction to evade a Section 2 decree. Any invalidated district will be replaced with a valid one under judicial supervision; jurisdictions simply cannot continually “contriv[e] new” districts “in the face of adverse federal court decrees.” Id. Section 2 is an effective way of redressing vote dilution.
Indeed, given current conditions, other remedies already on the books are “appropriate” remedies “drawn in narrow terms to address or prevent” any residuum of voting discrimination that exists throughout the nation. Coleman v. Court of Appeals of Md., 132 S. Ct. 1327, 1334 (2012). Voters denied their constitutional rights can bring a Section 1983 action for declaratory and injunctive relief and may recover attorneys’ fees if victorious. See 42 U.S.C. §1988. Moreover, Section 2 applies nationwide, permitting speciﬁc challenges to discriminatory voting practices and focusing a judicial remedy on proven violations. United States v. Georgia, 546 U.S. 151, 158 (2006) (“[N]o one doubts that … Congress [has] the power to ‘enforce … the provisions’ of the Amendment by creating private remedies against the States for actual violations of those provisions.”). Section 2 also prophylactically bans any practice that even unintentionally “results in the denial or abridgment” of the right to vote. 42 U.S.C. §1973(a). Especially in conjunction with Section 3’s bail-in mechanism, Section 2 can effectively remedy the “lesser” harm that Congress documented in 2006, Boerne, 521 U.S. at 530.

34
B. The lower court’s reasons for upholding Section 5 conﬂict with this Court’s decisions and would justify preclearance in perpetuity.
The court of appeals did not dispute that the ﬁrstgeneration barriers relied upon in Katzenbach and Rome were no longer present. Pet. App. 22a-23a. Instead, it relied upon legal theories alien to this Court’s decisions analyzing the scope of Congress’ enforcement authority. If the lower court’s reasoning is correct, preclearance would no longer be an extraordinary remedy for rampant constitutional evasion—but a permanent usurpation of the Tenth Amendment powers reserved to the States.
1. By treating the judicial task as akin to review of agency decisions, Pet. App. 47a, the court inappropriately deferred to Congress in every aspect of its analysis. The judiciary has the Article III responsibility to ensure that Congress has documented “reliable evidence of actual voting discrimination” before exercising its enforcement authority. Katzenbach, 383 U.S. at 329; Tennessee v. Lane, 541 U.S. 509, 564 (2004) (Scalia, J., dissenting) (“Congress may impose prophylactic §5 legislation” only when “there has been an identiﬁed history of relevant constitutional violations.”). In Boerne, the Court rejected Congress’ determination that a “widespread pattern of religious discrimination” existed, because the legislative record did not document constitutional violations. 521 U.S. at 531. Congress may rely on evidence from “any probative source.” Katzenbach, 383 U.S. at 330. But the ultimate responsibility for deciding whether that evidence establishes a constitutional violation rests with this Court. Mitchell, 400 U.S. at 125-26; Boerne, 539 U.S. at 519-20; Nw. Austin, 557 U.S. at 224-26 (Thomas, J.).

35
The court below acknowledged its obligation to ensure that Congress documented “substantial probative evidence” of a widespread pattern of voting discrimination, Pet. App. 47a, yet upheld Section 5 principally by deferring to Congress on the evidence’s probative value. For example, it relied on preclearance objections that purportedly were based on a ﬁnding of discriminatory intent, id., without determining whether those Section 5 objections were based on constitutional violations or, instead, the Attorney General’s mistaken interpretation of that standard. And the court had every reason to believe that preclearance objections based on a ﬁnding of intentional discrimination during the relevant period deviated from the constitutional standard. See, e.g., Miller, 515 U.S. at 917 (explaining that DOJ “would accept nothing less than abject surrender to its maximization agenda”); Introduction to the Expiring Provisions of the Voting Rights Act, 109th Cong. at 216 (May 9, 2006) (Hasen) (explaining that the Attorney General followed a “policy of objecting to certain state actions that were perfectly constitutional”).7
7. The court also deferred to Congress’ supposed judgment that “absolute numbers” of preclearance objections were more probative than “objection rates.” Pet. App. 35a. But nothing in the legislative record suggests that Congress made such a determination. Moreover, looking to absolute numbers ignores that there were six times as many submissions between 1982 and 2004 (101,400) than between 1965 and 1982 (15,416). House Report at 22. The annual objection rate is thus far more probative of current conditions. Otherwise, there would be no difference between 100 objections out of 200 submissions or 100 objections out of 1,000,000 submissions.

36
The court’s deference to Congress’ assessment of the evidence also pervaded its examination of other secondgeneration evidence. It acknowledged that MIRs “are less probative of discrimination” than preclearance objections, but permitted Congress to conclude that “some” of them are probative. Pet. App. 35a-36a. It found deployment of observers “hardly conclusive evidence of unconstitutional discrimination,” but held that Congress “could reasonably rely upon it as modest additional evidence of current needs.” Id. 40a. It found Congress “reasonably concluded that successful section 2 suits provide powerful evidence of unconstitutional discrimination,” id. 38a, even though such suits, i.e., those “resulting in outcomes favorable to minority plaintiffs,” id. 49a, included many suits with no ﬁnding of intentional discrimination, suits not resolved on the merits, or both, Ellen Katz et al., Documenting Discrimination in Voting, 39 U. Mich. J.L. Reform 643, 653-54 n.35 (2006).8 And, ﬁnally, it found Congress “could reasonably have concluded” that all 105 Section 5 enforcement actions could “provide at least some evidence” supporting reauthorization because two of them suggested intentional discrimination. Pet. App. 40a.
The Constitution grants Congress power to enforce the Reconstruction Amendments, not to rewrite them. The Court thus must draw “the line between measures that remedy or prevent unconstitutional actions and measures that make a substantive change in the governing law.”
8. For example, one case was included in the legislative record as a successful Section 2 case even though it was dismissed because the suit “challenged the lawfulness of a system which was no longer viable” and there was “a scant amount of evidence in support of the claims.” Fayetteville v. Cumberland County, No. 90-2029, 1991 WL 23590, at *2 (4th Cir. Feb. 28, 1991).

37
Boerne, 521 U.S. at 519. The court below abdicated that Article III duty by deferring to Congress’ conclusion that the legislative record includes “reliable evidence,” Katzenbach, 383 U.S. at 329, of a widespread pattern of “relevant constitutional violations,” Lane, 541 U.S. at 564 (Scalia, J., dissenting). “[A]s broad as the congressional enforcement power is, it is not unlimited.” Boerne, 521 U.S. at 518. If Congress can dictate the constitutional signiﬁcance of the evidence in the legislative record, “it is difﬁcult to conceive of a principle that would limit congressional power.” Id. at 529.
2. Not only did the lower court indulge in excessive deference, it held Congress to a lighter evidentiary burden than precedent allows. Ignoring this Court’s repeated conclusion that Section 5 was an appropriate response to evasionary tactics and electoral gamesmanship, supra at 5, the court looked exclusively to the “magnitude” of violations to decide whether “section 2 litigation remains inadequate.” Pet. App. 26a. It claimed that the inherent characteristics of case-by-case adjudication necessitated preclearance because “section 2 claims involve ‘intensely complex litigation that is both costly and time-consuming,” despite the availability of preliminary injunctive relief. Id. 45a (internal citations and quotations omitted). But Congress could not have thought that it was the almost universal attributes of traditional litigation that made Section 2 ineffective. If it had, Section 5 would have been extended nationwide.
But even if Section 2 litigation does have the sometimes frustrating attributes of ordinary civil litigation, case-bycase enforcement is hardly futile under current conditions. In 1965, “Congress had found that case-by-case litigation

38
was inadequate to combat widespread and persistent discrimination in voting, because of the inordinate amount of time and energy required to overcome the obstructionist tactics invariably encountered in these lawsuits.” Katzenbach, 383 U.S. at 328 (emphasis added). Absent similar evidence in the 2006 legislative record, or at least evidence of discrimination in covered jurisdictions “so extensive that elimination of it through case-by-case enforcement would be impossible,” Nw. Austin, 557 U.S. at 225 (Thomas, J.), there is no basis for upholding Section 5. If the efﬁcient prevention of isolated violations could sustain the invasive preclearance obligation, then Section 5 would be a constitutional remedy even where the legislative record documents the existence of minimal voting discrimination. Such a result cannot be reconciled with Katzenbach or any other decision.
Under the lower court’s constitutional reasoning, preclearance could be imposed to counteract any perceived threat of Fourteenth or Fifteenth Amendment violation given the lure of prior restraint. Instead of creating a right of action to remedy discrimination against the disabled in accessing judicial services, Lane, 541 U.S. at 517, or against women in the workplace, Nev. Dep’t of Human Res. v. Hibbs, 538 U.S. 721, 724 (2003), Congress could suspend the right of state and local governments to make physical changes to their facilities or make changes to their employee leave policies “until they have been precleared by federal authorities in Washington, D.C,” Nw. Austin, 557 U.S. at 202. But Katzenbach teaches that an unprecedented preclearance remedy requires evidence of systematic violations not remediable by less restrictive means. Federalism interests cannot be trampled solely in the interest of an efﬁcient remedy.

39
3. Finally, the court of appeals paradoxically cited the absence of current voting discrimination as proof that preclearance should continue for 25 years. At every turn, the court assumed that the lack of evidence was the result of Section 5’s alleged “deterrent” effect, ﬁnding “that Section 5 deters jurisdictions from even attempting to enact [discriminatory] laws, thereby reducing the need for section 2 litigation in covered jurisdictions.” Pet App. 38a. Based on this line of reasoning, the court found that “Congress had ‘some reason to believe that without [section 5’s] deterrent effect on potential misconduct,’ the evidence of continued discrimination in covered jurisdictions ‘might be considerably worse.’” Id. 42a-43a (quoting Senate Report at 11).
But this is precisely the kind of “supposition and conjecture” that cannot sustain enforcement legislation. Coleman, 132 S. Ct. at 1336. There is no evidence in the legislative record suggesting that the racial animus of the 1960s in covered jurisdictions has been hibernating for two generations. Congress is not entitled to blindly assume that the concededly fragmentary evidence of voting discrimination is the product of Section 5 deterrence. That offensive theory, see Nw. Austin, 557 U.S. at 226 (Thomas, J.), could never be disproved. As veriﬁable evidence of voting discrimination continued to abate, the “deterrent” effect would be assigned the credit thus depriving covered jurisdictions of the constitutional prerogative to regulate their own elections “to the crack of doom. Indeed, Northwest Austin’s insistence that ‘current burdens … must be justiﬁed by current needs’ would mean little if §5’s supposed deterrent effect were enough to justify the current scheme.” Pet. App. 94a (Williams, J.) (internal citation omitted).

40
II. Congress Did Not Document Current Conditions Justifying Section 4(b)’s Unequal Treatment of Sovereign States.
Even if preclearance might remain an appropriate response to ongoing discrimination in some jurisdictions, Section 4(b)’s formula is no longer an “appropriate” means of determining the jurisdictions that should be subject to coverage. A “departure from the fundamental principle of equal sovereignty requires a showing that a statute’s disparate geographic coverage is sufﬁciently related to the problem that it targets.” Nw. Austin, 557 U.S. at 203. An appropriate coverage formula must be “rational in both practice and theory.” Katzenbach, 383 U.S. at 330. As shown below, the archaic coverage formula reauthorized in 2006 is neither.
A. Section 4(b)’s coverage formula is no longer rational in theory.
1. In Katzenbach, the Court found Section 4(b)’s formula sound in theory because its inputs—“the use of tests and devices for voter registration, and a voting rate in the 1964 presidential election at least 12 points below the national average”—reliably indicated a “widespread and persistent” use of intentionally discriminatory tactics to keep minorities from voting. 383 U.S. at 33031. Tying coverage to “the use of tests and devices for voter registration” was appropriate because “of their long history as a tool for perpetrating the evil”; tying coverage to low registration and turnout rates was appropriate “for the obvious reason that widespread disenfranchisement must inevitably affect the number of actual voters.” Id. at 330.

41
But this now decades-old data does not describe current conditions. The discriminatory tests and devices targeted in Section 4(b) have been permanently banned for over 35 years, and the rates of minority registration and voting in 1964, 1968, and 1972 are vastly different from the “current political conditions” in the covered jurisdictions, Nw. Austin, 557 U.S. at 203. As “[v]oter turnout and registration rates now approach parity,” there is no rational basis for Congress’ determination that election data from 1964, 1968, and 1972 identiﬁes those jurisdictions likely to discriminate between 2007 and 2031. Id. at 202. It would have made little theoretical sense for Congress to base coverage in 1965 on voting data from the 1916, 1920, and 1924 elections. It made even less sense to rely on data from 1964, 1968, and 1972 in 2006. The coverage formula is unconstitutional for this reason alone.
2. The coverage formula also suffers from another fundamental theoretical ﬂaw. Although the statutory coverage factors—registration and turnout statistics— reflect interference with the ability to cast a ballot, Congress did not reauthorize Section 5 to deal with the “ﬁrst generation” problem of ballot access. Congress found that ballot-access problems had largely been solved and instead justiﬁed reauthorization based on “second generation” barriers to electoral success. Supra at 9-11. Therefore, there is a serious mismatch between the problem that Congress targeted and the triggers for coverage under Section 4(b)’s formula. Vote dilution and the other “second generation” barriers affect voting impact, see Thornburg v. Gingles, 478 U.S. 30, 48 (1986), but they do not deny ballot access to anyone and thus do not “inevitably affect the number of actual voters,” Katzenbach, 383 U.S. at 330.

42
It is irrational to retain a coverage formula that utilizes indicators of interference with the ability to cast a ballot in order to identify jurisdictions that employ electoral practices undermining the effectiveness of the ballot once cast. Congress’ failure to change the coverage formula to respond to its shift in focus is particularly problematic because there are readily available criteria and data that would have identiﬁed those States and localities where these “second generation” problems are most prevalent.
The court of appeals acknowledged these arguments but brushed them aside. The court found it unnecessary to evaluate the theoretical basis for Section 4(b)’s coverage formula and suggested that theoretical irrationality was not “Shelby County’s real argument.” Pet. App. 57a. But that is demonstrably wrong. Shelby County advanced this issue and briefed it extensively both in the district court (including in supplemental brieﬁng on whether the reauthorization of Section 4(b) was “rational in both practice and theory,” Pet. App. 292a-293a) and on appeal. As the coverage formula’s theoretical basis was one of the key reasons for upholding it in Katzenbach, Shelby County has always pressed this issue.
3. Brushing aside the absence of theoretical justiﬁcation for the formula, the court asserted that Shelby County’s argument “rests on a misunderstanding of the coverage formula” because Congress “identiﬁed the jurisdictions it sought to cover … and then worked backward, reverseengineering a formula to cover those jurisdictions.” Id. 56a. In the court’s view, the triggers “were never selected because of something special that occurred in [the identiﬁed] years” and “tests, devices, and low participation

43
rates” were not Congress’ main targets; they were instead “proxies for pernicious racial discrimination in voting.” Id. 56a-57a. According to the court of appeals, the only question to be answered “is not whether the formula relies on old data or techniques, but instead whether it … continues to identify the jurisdictions with the worst problems.” Id. 57a.
But determining whether the formula is rational in practice is not a substitute for testing it in theory. Katzenbach concluded that the formula was constitutional in part because there was a rational connection between the triggers for coverage and the problems preclearance was designed to remedy. Refusing to squarely address this aspect of the inquiry ignores the Court’s recent warning that the formula must be “sufficiently related to the problem” targeted by Congress. Nw. Austin, 557 U.S. at 203. Bypassing this question admits that it has no answer.
B. Section 4(b)’s coverage formula is no longer rational in practice.
1. In Katzenbach, the Court found that Section 4(b)’s coverage formula when tested in practice accurately captured those jurisdictions where there was “reliable evidence of actual voting discrimination.” 383 U.S. at 329. Those jurisdictions that had “misuse[d] … tests and devices” were committing the “evil for which the new remedies were speciﬁcally designed.” Id. at 331. Thus, that “no States or political subdivisions [were] exempted from coverage under §4(b) in which the record reveal[ed] recent racial discrimination involving tests and devices … conﬁrm[ed] the rationality of the formula.” Id.

44
By 2006, however, suspect tests and devices had been permanently banned and the evidence in the legislative record of comparative voter registration and turnout data “suggests that the coverage formula lacks any rational connection to current levels of voter discrimination.” Pet. App. 95a (Williams, J.). In fact, had Congress tied preclearance to voting data from the 1996, 2000, and 2004 Presidential elections in order to capture those jurisdictions with current first-generation problems, none of the currently covered States would be subject to preclearance—only Hawaii would be covered. 151 Cong. Rec. H5131, H5181 (daily ed. July 13, 2006).
Moreover, “the racial gap in voter registration and turnout is lower in the States originally covered by §5 than it is nationwide.” Nw. Austin, 557 U.S. at 203. For example, a comparison of white and black registration and turnout rates from the 2004 election demonstrates that there is “no positive correlation between inclusion in §4(b)’s coverage formula and low black registration or turnout. Quite the opposite. To the extent that any correlation exits, it appears to be negative—condemnation under §4(b) is a marker of higher black registration and turnout.” Pet. App. 83a (Williams, J.) (emphasis added); Senate Report at 11 (“[P]resently in seven of the covered States, AfricanAmericans are registered at a rate higher than the national average”; in two more, black registration in the 2004 election was “identical to the national average”; and in “California, Georgia, Mississippi, North Carolina, and Texas, black registration and turnout in the 2004 election ... was higher than that for whites.”). The formula thus clearly “fails to account for current political conditions.” Nw. Austin, 557 U.S. at 203.

45
2. If “second generation barriers” are now the “evil §5 is meant to address,” that evil is not “concentrated in the jurisdictions singled out for coverage.” Id. “Congress heard warnings from supporters of extending §5 that the evidence in the record did not address ‘systematic differences between the covered and the non-covered areas of the United States[,] … and, in fact, the evidence that is in the record suggests that there is more similarity than difference.’” Id. at 204 (quoting The Continuing Need for Section 5 Pre-Clearance: Hearing before the Senate Committee on the Judiciary, 109th Cong., at 10 (May 16, 2006) (Pildes) (“Continuing Need”)). It was readily apparent that “identify[ing] continuing problems in the covered jurisdictions, such as racially polarized voting, in complete isolation from consideration of whether similar problems exist in non-covered sites” was constitutionally problematic. Continuing Need at 200 (Pildes).
Yet Congress never addressed this issue “in any detail in the [Senate] hearings or in the House” and “little evidence in the [legislative] record examines whether systematic differences exist between the currently covered and noncovered jurisdictions.” Id. at 200-01 (Pildes). It may be that Congress was unwisely persuaded to conclude that it need not address the issue. See id. at 95 (“I do not believe that [Boerne] requires Congress to engage in a new and detailed comparison of voting practices and procedures and levels of minority participation and electoral success in covered and non-covered jurisdictions before renewing section 5.”) (Karlan). Or Congress might have known that conducting such a study could make reauthorization more difﬁcult to achieve. See Nw. Austin, 557 U.S. at 204 (citing Persily, The Promise and Pitfalls of the New Voting Rights Act, 117 Yale L.J. 174, 208 (2007)). Regardless, Congress

46
did not seriously consider whether the “statute’s disparate geographic coverage is sufﬁciently related to the problem that it targets,” id. at 203, let alone make an actual ﬁnding of meaningfully greater incidence of “second generation barriers” in the covered jurisdictions, VRARAA, §2(b)(4), 120 Stat. at 577. Given this failure, Congress was clearly acting as the proverbial “dart-thrower.” Pet. App. 70a (Williams, J.).
Had Congress studied the issue, it would have been plain that there are no longer “systematic differences between the covered and the non-covered areas of the United States[;] … in fact, the evidence that is in the record suggests that there is more similarity than difference.” Continuing Need at 10 (Pildes) (quoted in Northwest Austin, 557 U.S. at 204). Evidence of “second generation” barriers for which there is comparative data in the legislative record conﬁrms that the “evil” Congress targeted in Section 5 is “no longer … concentrated in the jurisdictions singled out for preclearance.” Nw. Austin, 557 U.S. at 203.
A state-by-state comparison of Section 2 litigation data and racially polarized voting statistics conﬁrms the irrationality of using Section 4(b)’s formula to address “second generation barriers.”9 The Katz Study of Section
9. Section 2 litigation and racially-polarized voting statistics are the only “second generation barriers” that could plausibly bear on this issue. Preclearance statistics provide no basis for a comparative analysis because non-covered jurisdictions are not subject to Section 5. Similarly, during the relevant period, the Attorney General was authorized to send observers only to covered jurisdictions or non-covered jurisdictions bailed-in under Section 3. Pet. App. 240a-241a n.13.

47
2 litigation—which the court of appeals considered “the most concrete evidence comparing covered and noncovered jurisdictions in the legislative record,” Pet. App. 49a—conclusively demonstrates that Congress did not correctly identify the States to be covered.
For example, taking the States with the highest number of Section 2 lawsuits ﬁled since 1982, the nine fully-covered States are only 5 of the top 10, 6 of the top 14, and 7 of the top 26. See Ellen Katz & The Voting Rights Initiative, VRI Database Master List, available at http:// sit ema ker.u m ich.edu / vot i ng r ight s /f i le s /ma st erl i st . x l s (cited in To Examine the Impact & Effectiveness of the Voting Rights Act: Hearing Before the Subcommittee on the Constitution of the House Committee on the Judiciary, 109th Cong., at 974, 1019-20 (Oct. 18, 2005)). In fact, noncovered Illinois had more Section 2 lawsuits ﬁled since 1982 than all but three fully-covered States. Id. The same is true of New York, and Florida, even disregarding the suits ﬁled against their scattered covered jurisdictions. Notably, one fully-covered State (Alaska) did not have a single reported Section 2 suit ﬁled during the entire period covered by the legislative record. Id. Thus, if reported Section 2 suits were a proper basis for coverage, Alaska could be covered only if every State in the Union were covered.
Similarly, focusing on adjudicated Section 2 violations, fully-covered States make up only 5 of the top 10, 6 of the top 18, and 7 of all 25. Id. Neither Alaska nor Arizona had a single Section 2 violation, yet Illinois had more of these than ﬁve fully-covered States (and all of the partially covered States). Id. And of the 20 States with Section 2 lawsuits that resulted in ﬁndings of intentional

48
discrimination, only 4 were fully-covered States. Id. On the other hand, of the 6 States with more than one ﬁnding of intentional discrimination, 4 were non-covered States. Id.10 In particular, Illinois and Tennessee had more Section 2 lawsuits that resulted in ﬁndings of intentional discrimination than all but one covered State. And with regard to Section 2 suits with “outcomes favorable to minority voters,” fully-covered States make up only 4 of the top 8, 5 of the top 11, and 7 of all 30. Id. While Alaska and Arizona had none of these cases, there were more of these cases in non-covered Illinois and the non-covered portions of Florida than in ﬁve fully-covered States. Id.
The outcome is the same for racially polarized voting. Of the 105 instances of racially polarized voting, only 48 occurred in covered States, and only 52 in all covered jurisdictions. Id. Among those 105 instances, only 4 of the 10 States with the highest number of instances of racially polarized voting are fully-covered States. Id. Two fully-covered States (Arizona and Alaska) did not have a single reported suit with a ﬁnding of racially polarized voting. Id. On the other hand, non-covered Arkansas, Illinois, and Tennessee, and the non-covered portions of Florida and New York each had more instances of racially polarized voting than ﬁve of the nine fully-covered States. Id. Finally, of the 16 instances of racially polarized voting the Katz Study identiﬁed as having occurred after 2000, only 5 (or 31%) occurred in covered States. Id.
10. Of the data in the Katz Study, intentional-discrimination ﬁndings should be the only relevant statistic since preclearance has always been justiﬁed primarily on the basis of “reliable evidence of actual voting discrimination.” Katzenbach, 383 U.S. at 329.

49
Ultimately, whether the Court considers all of the Section 2 lawsuits ﬁled or any subset thereof, the answer is the same: Section 4(b)’s formula is a “remarkably bad ﬁt” to the problems Congress was addressing. Pet. App. 95a (Williams, J.); id. 93a (“A formula with an error rate of 50% or more does not seem ‘congruent and proportional.’”). “There is a lot of paper, but not many facts or statistics to show why Georgia is different from Tennessee or why Texas is different from Oklahoma or why racially polarized voting in Wisconsin shouldn’t be addressed with a remedy such as [Section 5].” 151 Cong. Rec. H5182 (daily ed. July 13, 2006) (Rep. Westmoreland).
3. Because the Katz Study could not provide a basis for defending Section 4(b)’s coverage formula on its own terms, the court of appeals was forced to dig deeper. First, it considered only a carefully selected slice of data—Section 2 cases resulting in outcomes “favorable to minority plaintiffs,” a characterization that vastly overstates their signiﬁcance, Pet. App. 132a (Williams, J.), especially as Congress looked only to “continued ﬁling of Section 2 cases in covered jurisdictions,” VRARAA §2(b)(4)(C), 120 Stat. at 578 (emphasis added). As noted above, many of these Section 2 cases involved no ﬁnding of intentional discrimination, were not resolved on the merits, or both; and some of the “outcomes” deemed “favorable to minority voters” merely reﬂected voluntary changes in voting laws. See supra at 36 and n.8.
Second, the court primarily reviewed this slice of data in the aggregate, lumping States into “covered” and “non-covered” categories. But aggregating denies equal dignity to each sovereign State by obscuring each State’s individual record and thus concealing the fact that

50
many of them have records similar to (or better than) many non-covered States. As noted above, there was not a single Section 2 suit in Alaska or Arizona—much less a “successful” one—in the entire 24-year period. VRI Database Master List. Using the lower court’s preferred metric, then, no non-covered State had a better record than Alaska or Arizona. Moreover, eight non-covered States or non-covered portions of partially-covered States had at least as many “successful” Section 2 suits as Georgia and South Carolina, and six had at least as many as Virginia. See id. Only three fully-covered States had more “successful” Section 2 suits than Illinois, and only four fully-covered States had more than Tennessee and Arkansas and the non-covered portions of New York and Florida. See id.
Had the court of appeals assessed each State on an individual basis, it would have discovered that the formula is both grossly under- and over-inclusive. In other words, the court could not possibly have concluded that the coverage formula captures “the jurisdictions with the worst problems.” Pet. App. 57a. What the court labeled a “close question,” id. 58a, is in fact not close at all.
Even viewing the covered States collectively, the Katz Study fails to show a meaningful difference between covered and non-covered jurisdictions. There were more Section 2 lawsuits ﬁled in non-covered jurisdictions (171) than in covered jurisdictions (160). See VRI Database Master List. Additionally, there were almost twice as many Section 2 suits resulting in a ﬁnding of intentional discrimination in non-covered jurisdictions (21) than in covered jurisdictions (12), id., and on a closer “reading of the cases Professor Katz lists, there are even fewer,” Pet.

51
App. 97a (Williams, J.); see also Continuing Need at 202 (“[T]hese [Section 2] violations are not overwhelmingly or systematically concentrated in Section 5 areas; [the Katz] report itself documents that these violations arise in many places with signiﬁcant minority populations…. Since 1990, for example, there are as many judicial ﬁndings of Section 2 violations in Pennsylvania as in South Carolina—and more in New York.”) (Pildes).
To be sure, the court made much of the fact that covered jurisdictions “accounted for 56 percent of successful section 2 litigations since 1982.” Pet. App. 49a (emphasis added). But a narrow 56% to 44% divide is woefully insufﬁcient to justify retaining the outmoded coverage formula; as the National Commission on the Voting Rights Act found, this data shows that a “signiﬁcant” number of Section 2 cases “resolved favorably to plaintiffs” occurred in non-covered jurisdictions. See Voting Rights Act: Evidence of Continued Need: Hearing. Before the Subcommittee on the Constitution of the House Committee on the Judiciary, 109th Cong., at 208 (Mar. 8, 2006). Such a narrow covered-versus-non-covered split does not show that Section 2 litigation is concentrated in covered jurisdictions and thus cannot provide a legitimate basis for “depart[ing] from the fundamental principle of equal sovereignty,” Nw. Austin, 557 U.S. at 203.
Moreover, whatever the “persuasive power of this statistic” it dissolves once the Court “disaggregate[s] the data by state.” Pet. App. 91a (Williams, J.). Although the Katz Study found 68 “successful” Section 2 cases in the sixteen fully or partially-covered States, Congress could have selected an almost entirely different set of States for coverage and reached the same result. For

52
example, more successful Section 2 suits (69) would have occurred in covered jurisdictions had Congress selected Arkansas (4), California (3), Colorado (2), Florida (7), Illinois (9), Louisiana (10), Maryland (2), Massachusetts (1), Montana (2), New York (5), North Carolina (10), Ohio (2), Pennsylvania (3), Tennessee (4), Virginia (4), and Wisconsin (1).
And this is not a contrived example. Even excluding all of the seven original fully-covered States, one could still compile a list of sixteen States with nearly as many successful Section 2 suits (65) as occurred in the covered jurisdictions (68): Arkansas (4), California (3), Colorado (2), Delaware (1), Florida (7), Illinois (9), Maryland (2), Montana (2), New York (5), North Carolina (10), Ohio (2), Pennsylvania (3), Rhode Island (1), Tennessee (4), Texas (9), and Wisconsin (1). Because Section 2 litigation is not concentrated in covered States, there are seemingly innumerable combinations that would prove this same point. In short, the Katz data do not at all suggest that the coverage formula is rational in practice. They demonstrate the opposite.
Seemingly aware of this problem, the lower court examined the Katz data state-by-state only after supplementing it with data included in a post-enactment declaration submitted by Peyton McCrary, a DOJ employee. Pet. App. 93a. The court conceded that the declaration should be “approach[ed] … with caution,” id. 54a, because it was executed during this litigation and depended on extra-record evidence collected by different groups and pursuant to different methods than the Katz Study, id. The declaration also classiﬁed cases that were resolved through a settlement as “successful,” despite

53
the fact that this inference is “exceptionally weak,” as it “overlooks not only the range of outcomes embraced in the concept of settlement but also the strategic factors, including legal fees and reputational risk, that go into a jurisdiction’s decision to settle.” Id. 93a-94a (Williams, J.). Even ignoring these ﬂaws, the McCrary declaration should never have been accepted. The statute’s constitutionality must be measured against the legislative record alone. Pet. App. 299a-300a; Coleman, 132 S. Ct. at 1336-37; Nw. Austin Mun. Util. Dist. No. One v. Mukasey, 573 F. Supp. 2d 221, 247 (D.D.C. 2008).
In any event, the court’s attempt to analogize the 2006 record to the 1965 record based on this extra-record evidence fails. The 1965 record documented States where “federal courts ha[d] repeatedly found substantial voting discrimination,” a second category where “there was more fragmentary evidence of recent voting discrimination,” and a third category where the use of tests and devices and low voter turnout justiﬁed coverage, “at least in the absence of proof that they ha[d] been free of substantial voting discrimination in recent years.” Katzenbach, 383 U.S. at 329-30. In contrast, the 2006 record could not possibly place any State within the ﬁrst category and at most three States in the second category, “leav[ing] six fully covered states (plus several jurisdictions in partially covered states) in category three, many more than in 1966, when only two fully-covered states (Virginia and Alaska) were not included in either category one or two,” Pet. App. 97a. (Williams, J.). It is worth emphasis that none of these States now employ tests or devices, making them unlike even the category-three cases of decades ago. Moreover, the jurisdictions arguably falling in category three have records virtually indistinguishable from (if not better than) several non-covered States.

54
Had Congress chosen to individually identify those States with the highest incidence of “second generation barriers,” many (if not most) of the nine fully covered States would have avoided coverage. But States like New York, Illinois, and Tennessee and several others clearly would have been on that hypothetical coverage list. If Congress genuinely considered Section 2 litigation a legitimate barometer for whether a State should be subject to preclearance until 2031, it should not have retained the Section 4(b) formula, and it could not have targeted these nine States for coverage.
4. The court of appeals retreated to bailout as a solution to the irrationality of the coverage formula. Pet. App. 61a-64a. But there are several reasons why bailout is incapable of saving Section 4(b). First, history has shown that bailout can at best ameliorate over-inclusiveness only at the margin. Even ignoring that the court relied on bailout ﬁgures artiﬁcially inﬂated by post-reauthorization evidence, only a tiny percentage of the more than 12,000 covered jurisdictions have bailed out of coverage since 1982. Pet. App. 100a (“[O]nly 136 of the more than 12,000 covered political subdivisions (i.e., about 1%) have applied for bailout (all successfully).”)
The reason why bailout is so infrequent is statutory. Bailout eligibility 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 subjurisdictions have the same spotless record. 42 U.S.C. §1973b. Because any failure resets the ten-year bailout clock, “the promise of a bailout opportunity has, in the great majority of cases, turned out to be no more than a mirage.” Nw. Austin, 557 U.S. at 215 (Thomas, J.). Bailout

55
clearly affects the scope of Section 4(b)’s coverage only at the margin, and it thus cannot possibly solve the formula’s massive over- and under-inclusiveness problems. Pet. App. 99a-101a (Williams, J.).
Second, bailout today is fundamentally different from bailout in 1965. As originally enacted, the VRA permitted bailout for any jurisdiction that had not used a voting “test or device” in the preceding ﬁve years for the purpose or with the effect of denying or abridging the right to vote on account of race. See supra at 3. Bailout thus was intended to correct the formula’s inadvertent overreach by removing jurisdictions that “should not have been covered in the ﬁrst place.” BIO at 4. But after the 1982 amendments to the VRA, that is no longer its purpose. Under the current statute, a covered jurisdiction cannot secure bailout by demonstrating that it should not have been covered in the ﬁrst place. Nor are the statutory criteria purely objective. Rather, to secure bailout, covered jurisdictions also must prove to the satisfaction of DOJ and DDC that, among other things, they:
(i) have eliminated voting procedures and methods of election which inhibit or dilute equal access to the electoral process; (ii) have engaged in constructive efforts to eliminate intimidation and harassment of persons exercising rights protected [under the Act]; and (iii) have engaged in other constructive efforts, such as expanded opportunity for convenient registration and voting for every person of voting age and the appointment of minority persons as election ofﬁcials throughout the jurisdiction and at all stages of the election and registration process.
42 U.S.C. §1973b(a)(1)(F)(i)-(iii).

56
And even if a covered jurisdiction can satisfy these highly subjective criteria, it remains subject to Section 5’s “clawback” provision, id. §1973b(a)(5), 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. Thus, bailout does not afford a jurisdiction “a change in its status from covered to noncovered.” BIO 24. And it does not liberate jurisdictions that should have never been covered in the ﬁrst place. Instead, it turns covered jurisdictions into parolees that may ultimately be liberated only if they (and their sub-jurisdictions) continue to comply with the statutory criteria during a ten-year period of supervised release.
DOJ’s implementation of bailout illustrates the point. For example, DOJ recently required Pinson, Alabama, as a condition of bailout, to take “certain additional constructive measures” including the formation of a “citizens’ advisory group that is representative of the City’s diversity” to make election recommendations to the City and a report to the United States within 90 days after any municipal election administered by the City that details the “steps taken to increase opportunities for recruitment and participation of a diverse group of poll ofﬁcials as well as the total number of persons by race who served as election ofﬁcials in the election.” City of Pinson v. Holder, 12-cv-255 (D.D.C. Apr. 20, 2012) (Doc. 11) (¶¶ 47-50); see also City of Sandy Springs v. Holder, No. 10cv-1502 (D.D.C. Oct 26, 2010) (Doc. 8) (¶¶ 44-51) (imposing similar “administration and reports requirements” as a condition to bailout). If DOJ viewed bailout as an acknowledgement of the formula’s over-inclusiveness, it would not force a jurisdiction to agree to onerous nonstatutory conditions to secure bailout.

57
In short, there is no nexus between bailout under the current version of the VRA and the over-inclusiveness problem in Section 4(b)’s coverage formula. Bailout—as initially conceived in 1965—was a remedy for the coverage formula’s over-inclusiveness rather than a reward for statutory compliance. But that has not been the case since 1982, and today’s bailout is therefore, at most, a “modest palliative” that in no way solves the massive problems with the current coverage formula. Pet. App. 101a (Williams, J.). If bailout were sufﬁcient to save an ill-ﬁtting coverage formula, Congress could just randomly select jurisdictions for coverage so long as any unlucky jurisdiction could obtain relief from a federal court. The “fundamental principle” of equal sovereignty requires far more. Nw. Austin, 557 U.S. at 203.
Finally, the VRA’s judicial bail-in provision further undermines the formula’s constitutionality. See 42 U.S.C. §1973a(c). This provision is a nationwide, targeted, and far more appropriate means of imposing preclearance based on a speciﬁc judicial ﬁnding of unconstitutional voting discrimination. Unlike the outdated coverage formula, Section 3’s bail-in mechanism does not depart from equal sovereignty by treating some States differently from others based on pre-enactment history that bears no rational connection to modern voting problems. A noncovered State may become covered through bail-in only by virtue of a judicial ﬁnding of unconstitutional voting discrimination. Under current conditions, that remedy coupled with Section 2 fully safeguards minority voting rights.

58

CONCLUSION

For the foregoing reasons, the judgment of the D.C. Circuit should be reversed.

Respectfully submitted,

FRANK C. ELLIS, JR. WALLACE, ELLIS, FOWLER,
HEAD & JUSTICE 113 North Main Street Columbiana, AL 35051 (205) 669-6783

BERT W. REIN Counsel Of Record
WILLIAM S. CONSOVOY THOMAS R. MCCARTHY BRENDAN J. MORRISSEY WILEY REIN LLP
1776 K Street, N.W. Washington, DC 20006 (202) 719-7000 brein@wileyrein.com

December 26, 2012

Attorneys for Petitioner

1a Appendix A
ADDENDUM

1a
ADDENDAUdMde—nduRmELEVANT STATUTORY PROVISIONS
Fourteenth Amendment to the United States Constitution
Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial ofﬁcers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twentyone years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.
Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any ofﬁce, civil or military, under the United States,

2a
Addendum
or under any State, who, having previously taken an oath, as a member of Congress, or as an ofﬁcer of the United States, or as a member of any State legislature, or as an executive or judicial ofﬁcer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.
Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
Fifteenth Amendment to the United States Constitution
Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.
Section 2. The Congress shall have power to enforce this article by appropriate legislation.

3a
Addendum
42 U.S.C. § 1973 Voting Rights Act § 2
§ 1973 – Denial or abridgement of right to vote on account of race or color through voting qualiﬁcations or prerequisites; establishment of violation
(a) No voting qualiﬁcation or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color, or in contravention of the guarantees set forth in section 1973b(f)(2) of this title, as provided in subsection (b) of this section.
(b) A violation of subsection (a) of this section is established if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) of this section in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. The extent to which members of a protected class have been elected to ofﬁce in the State or political subdivision is one circumstance which may be considered: Provided, That nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population.

4a
Addendum
42 U.S.C. § 1973a Voting Rights Act § 3
§ 1973a – Proceeding to enforce the right to vote
(a) Authorization by court for appointment of Federal observers
Whenever the Attorney General or an aggrieved person institutes a proceeding under any statute to enforce the voting guarantees of the fourteenth or fifteenth amendment in any State or political subdivision the court shall authorize the appointment of Federal observers by the Director of the Ofﬁce of Personnel Management in accordance with section 1973d of this title to serve for such period of time and for such political subdivisions as the court shall determine is appropriate to enforce the voting guarantees of the fourteenth or ﬁfteenth amendment (1) as part of any interlocutory order if the court determines that the appointment of such observers is necessary to enforce such voting guarantees or (2) as part of any ﬁnal judgment if the court ﬁnds that violations of the fourteenth or ﬁfteenth amendment justifying equitable relief have occurred in such State or subdivision: Provided, That the court need not authorize the appointment of observers if any incidents of denial or abridgement of the right to vote on account of race or color, or in contravention of the voting guarantees set forth in section 1973b(f)(2) of this title (1) have been few in number and have been promptly and effectively corrected by State or local action, (2) the continuing effect of such incidents has been eliminated, and (3) there is no reasonable probability of their recurrence in the future.

5a
Addendum
(b) Suspension of use of tests and devices which deny or abridge the right to vote
If in a proceeding instituted by the Attorney General or an aggrieved person under any statute to enforce the voting guarantees of the fourteenth or ﬁfteenth amendment in any State or political subdivision the court ﬁnds that a test or device has been used for the purpose or with the effect of denying or abridging the right of any citizen of the United States to vote on account of race or color, or in contravention of the voting guarantees set forth in section 1973b(f)(2) of this title, it shall suspend the use of tests and devices in such State or political subdivisions as the court shall determine is appropriate and for such period as it deems necessary.
(c) Retention of jurisdiction to prevent commencement of new devices to deny or abridge the right to vote
If in any proceeding instituted by the Attorney General or an aggrieved person under any statute to enforce the voting guarantees of the fourteenth or fifteenth amendment in any State or political subdivision the court ﬁnds that violations of the fourteenth or ﬁfteenth amendment justifying equitable relief have occurred within the territory of such State or political subdivision, the court, in addition to such relief as it may grant, shall retain jurisdiction for such period as it may deem appropriate and during such period no voting qualiﬁcation or prerequisite to voting or standard, practice, or procedure with respect to voting different from that in force or effect at the time the proceeding was commenced shall be enforced unless and until the court ﬁnds that

6a
Addendum
such qualiﬁcation, prerequisite, standard, practice, or procedure does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color, or in contravention of the voting guarantees set forth in section 1973b(f)(2) of this title: Provided, That such qualiﬁcation, prerequisite, standard, practice, or procedure may be enforced if the qualiﬁcation, prerequisite, standard, practice, or procedure has been submitted by the chief legal ofﬁcer or other appropriate official of such State or subdivision to the Attorney General and the Attorney General has not interposed an objection within sixty days after such submission, except that neither the court’s ﬁnding nor the Attorney General’s failure to object shall bar a subsequent action to enjoin enforcement of such qualiﬁcation, prerequisite, standard, practice, or procedure.
42 U.S.C. § 1973b Voting Rights Act § 4
§ 1973b – Suspension of the use of tests or devices in determining eligibility to vote
(a) Action by State or political subdivision for declaratory judgment of no denial or abridgement; three-judge district court; appeal to Supreme Court; retention of jurisdiction by three-judge court
(1) To assure that the right of citizens of the United States to vote is not denied or abridged on account of race or color, no citizen shall be denied the right to vote in any Federal, State, or local election because of his failure to comply with any test or device in any

7a
Addendum
State with respect to which the determinations have been made under the ﬁrst two sentences of subsection (b) of this section or in any political subdivision of such State (as such subdivision existed on the date such determinations were made with respect to such State), though such determinations were not made with respect to such subdivision as a separate unit, or in any political subdivision with respect to which such determinations have been made as a separate unit, unless the United States District Court for the District of Columbia issues a declaratory judgment under this section. No citizen shall be denied the right to vote in any Federal, State, or local election because of his failure to comply with any test or device in any State with respect to which the determinations have been made under the third sentence of subsection (b) of this section or in any political subdivision of such State (as such subdivision existed on the date such determinations were made with respect to such State), though such determinations were not made with respect to such subdivision as a separate unit, or in any political subdivision with respect to which such determinations have been made as a separate unit, unless the United States District Court for the District of Columbia issues a declaratory judgment under this section. A declaratory judgment under this section shall issue only if such court determines that during the ten years preceding the ﬁling of the action, and during the pendency of such action--
(A) no such test or device has been used within such State or political subdivision for the purpose or with the effect of denying or abridging the

8a
Addendum
right to vote on account of race or color or (in the case of a State or subdivision seeking a declaratory judgment under the second sentence of this subsection) in contravention of the guarantees of subsection (f)(2) of this section;
(B) no ﬁnal judgment of any court of the United States, other than the denial of declaratory judgment under this section, has determined that denials or abridgements of the right to vote on account of race or color have occurred anywhere in the territory of such State or political subdivision or (in the case of a State or subdivision seeking a declaratory judgment under the second sentence of this subsection) that denials or abridgements of the right to vote in contravention of the guarantees of subsection (f)(2) of this section have occurred anywhere in the territory of such State or subdivision and no consent decree, settlement, or agreement has been entered into resulting in any abandonment of a voting practice challenged on such grounds; and no declaratory judgment under this section shall be entered during the pendency of an action commenced before the ﬁling of an action under this section and alleging such denials or abridgements of the right to vote;
(C) no Federal examiners or observers under subchapters I-A to I-C of this chapter have been assigned to such State or political subdivision;

9a
Addendum
(D) such State or political subdivision and all governmental units within its territory have complied with section 1973c of this title, including compliance with the requirement that no change covered by section 1973c of this title has been enforced without preclearance under section 1973c of this title, and have repealed all changes covered by section 1973c of this title to which the Attorney General has successfully objected or as to which the United States District Court for the District of Columbia has denied a declaratory judgment;
(E) the Attorney General has not interposed any objection (that has not been overturned by a ﬁnal judgment of a court) and no declaratory judgment has been denied under section 1973c of this title, with respect to any submission by or on behalf of the plaintiff or any governmental unit within its territory under section 1973c of this title, and no such submissions or declaratory judgment actions are pending; and
(F) such State or political subdivision and all governmental units within its territory--
(i) have eliminated voting procedures and methods of election which inhibit or dilute equal access to the electoral process;
(ii) have engaged in constructive efforts to eliminate intimidation and harassment of

10a
Addendum
persons exercising rights protected under subchapters I-A to I-C of this chapter; and
(iii) have engaged in other constructive efforts, such as expanded opportunity for convenient registration and voting for every person of voting age and the appointment of minority persons as election officials throughout the jurisdiction and at all stages of the election and registration process.
(2) To assist the court in determining whether to issue a declaratory judgment under this subsection, the plaintiff shall present evidence of minority participation, 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.
(3) No declaratory judgment shall issue under this subsection with respect to such State or political subdivision if such plaintiff and governmental units within its territory have, during the period beginning ten years before the date the judgment is issued, engaged in violations of any provision of the Constitution or laws of the United States or any State or political subdivision with respect to discrimination in voting on account of race or color or (in the case of a State or subdivision seeking a declaratory judgment under the second sentence of this subsection) in contravention of the guarantees

11a
Addendum
of subsection (f)(2) of this section unless the plaintiff establishes that any such violations were trivial, were promptly corrected, and were not repeated.
(4) The State or political subdivision bringing such action shall publicize the intended commencement and any proposed settlement of such action in the media serving such State or political subdivision and in appropriate United States post ofﬁces. Any aggrieved party may as of right intervene at any stage in such action.
(5) An action pursuant to this subsection shall be heard and determined by a court of three judges in accordance with the provisions of section 2284 of Title 28 and any appeal shall lie to the Supreme Court. The court shall retain jurisdiction of any action pursuant to this subsection for ten years after judgment and shall reopen the action upon motion of the Attorney General or any aggrieved person alleging that conduct has occurred which, had that conduct occurred during the ten-year periods referred to in this subsection, would have precluded the issuance of a declaratory judgment under this subsection. The court, upon such reopening, shall vacate the declaratory judgment issued under this section if, after the issuance of such declaratory judgment, a ﬁnal judgment against the State or subdivision with respect to which such declaratory judgment was issued, or against any governmental unit within that State or subdivision, determines that denials or abridgements of the right to vote on

12a
Addendum
account of race or color have occurred anywhere in the territory of such State or political subdivision or (in the case of a State or subdivision which sought a declaratory judgment under the second sentence of this subsection) that denials or abridgements of the right to vote in contravention of the guarantees of subsection (f)(2) of this section have occurred anywhere in the territory of such State or subdivision, or if, after the issuance of such declaratory judgment, a consent decree, settlement, or agreement has been entered into resulting in any abandonment of a voting practice challenged on such grounds.
(6) If, after two years from the date of the ﬁling of a declaratory judgment under this subsection, no date has been set for a hearing in such action, and that delay has not been the result of an avoidable delay on the part of counsel for any party, the chief judge of the United States District Court for the District of Columbia may request the Judicial Council for the Circuit of the District of Columbia to provide the necessary judicial resources to expedite any action ﬁled under this section. If such resources are unavailable within the circuit, the chief judge shall ﬁle a certiﬁcate of necessity in accordance with section 292(d) of Title 28.
(7) The Congress shall reconsider the provisions of this section at the end of the ﬁfteen-year period following the effective date of the amendments made by the Fannie Lou Hamer, Rosa Parks, Coretta Scott King, César E. Chávez, Barbara C. Jordan, William

13a
Addendum
C. Velásquez, and Dr. Hector P. Garcia Voting Rights Act Reauthorization and Amendments Act of 2006.
(8) The provisions of this section shall expire at the end of the twenty-ﬁve-year period following the effective date of the amendments made by the Fannie Lou Hamer, Rosa Parks, Coretta Scott King, César E. Chávez, Barbara C. Jordan, William C. Velásquez, and Dr. Hector P. Garcia Voting Rights Act Reauthorization and Amendments Act of 2006.
(9) Nothing 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. Any aggrieved party may as of right intervene at any stage in such action.
(b) Required factual determinations necessary to allow suspension of compliance with tests and devices; publication in Federal Register
The provisions of subsection (a) of this section shall apply in any State or in any political subdivision of a State which (1) the Attorney General determines maintained on November 1, 1964, any test or device, and with respect to which (2) the Director of the Census determines that less than 50 per centum of the persons of voting age residing therein were registered on November 1, 1964, or that less than 50 per centum of such persons voted in the presidential

14a
Addendum
election of November 1964. On and after August 6, 1970, in addition to any State or political subdivision of a State determined to be subject to subsection (a) of this section pursuant to the previous sentence, the provisions of subsection (a) of this section shall apply in any State or any political subdivision of a State which (i) the Attorney General determines maintained on November 1, 1968, any test or device, and with respect to which (ii) the Director of the Census determines that less than 50 per centum of the persons of voting age residing therein were registered on November 1, 1968, or that less than 50 per centum of such persons voted in the presidential election of November 1968. On and after August 6, 1975, in addition to any State or political subdivision of a State determined to be subject to subsection (a) of this section pursuant to the previous two sentences, the provisions of subsection (a) of this section shall apply in any State or any political subdivision of a State which (i) the Attorney General determines maintained on November 1, 1972, any test or device, and with respect to which (ii) the Director of the Census determines that less than 50 per centum of the citizens of voting age were registered on November 1, 1972, or that less than 50 per centum of such persons voted in the Presidential election of November 1972.
A determination or certiﬁcation of the Attorney General or of the Director of the Census under this section or under section 1973f or 1973k of this title shall not be reviewable in any court and shall be effective upon publication in the Federal Register.

15a
Addendum
(c) “Test or device” deﬁned
The phrase “test or device” shall mean any requirement that a person as a prerequisite for voting or registration for voting (1) demonstrate the ability to read, write, understand, or interpret any matter, (2) demonstrate any educational achievement or his knowledge of any particular subject, (3) possess good moral character, or (4) prove his qualiﬁcations by the voucher of registered voters or members of any other class.
(d) Required frequency, continuation and probable recurrence of incidents of denial or abridgement to constitute forbidden use of tests or devices
For purposes of this section no State or political subdivision shall be determined to have engaged in the use of tests or devices for the purpose or with the effect of denying or abridging the right to vote on account of race or color, or in contravention of the guarantees set forth in subsection (f)(2) of this section if (1) incidents of such use have been few in number and have been promptly and effectively corrected by State or local action, (2) the continuing effect of such incidents has been eliminated, and (3) there is no reasonable probability of their recurrence in the future.
(e) Completion of requisite grade level of education in American-ﬂag schools in which the predominant classroom language was other than English
(1) Congress hereby declares that to secure the rights under the fourteenth amendment of persons

16a
Addendum
educated in American-flag schools in which the predominant classroom language was other than English, it is necessary to prohibit the States from conditioning the right to vote of such persons on ability to read, write, understand, or interpret any matter in the English language.
(2) No person who demonstrates that he has successfully completed the sixth primary grade in a public school in, or a private school accredited by, any State or territory, the District of Columbia, or the Commonwealth of Puerto Rico in which the predominant classroom language was other than English, shall be denied the right to vote in any Federal, State, or local election because of his inability to read, write, understand, or interpret any matter in the English language, except that in States in which State law provides that a different level of education is presumptive of literacy, he shall demonstrate that he has successfully completed an equivalent level of education in a public school in, or a private school accredited by, any State or territory, the District of Columbia, or the Commonwealth of Puerto Rico in which the predominant classroom language was other than English.
(f) Congressional ﬁndings of voting discrimination against language minorities; prohibition of English-only elections; other remedial measures
(1) The Congress ﬁnds that voting discrimination against citizens of language minorities is pervasive

17a
Addendum
and national in scope. Such minority citizens are from environments in which the dominant language is other than English. In addition they have been denied equal educational opportunities by State and local governments, resulting in severe disabilities and continuing illiteracy in the English language. The Congress further ﬁnds that, where State and local ofﬁcials conduct elections only in English, language minority citizens are excluded from participating in the electoral process. In many areas of the country, this exclusion is aggravated by acts of physical, economic, and political intimidation. The Congress declares that, in order to enforce the guarantees of the fourteenth and fifteenth amendments to the United States Constitution, it is necessary to eliminate such discrimination by prohibiting English-only elections, and by prescribing other remedial devices.
(2) No voting qualiﬁcation or prerequisite to voting, or standard, practice, or procedure shall be imposed or applied by any State or political subdivision to deny or abridge the right of any citizen of the United States to vote because he is a member of a language minority group.
(3) In addition to the meaning given the term under subsection (c) of this section, the term “test or device” shall also mean any practice or requirement by which any State or political subdivision provided any registration or voting notices, forms, instructions, assistance, or other materials or information relating

18a
Addendum
to the electoral process, including ballots, only in the English language, where the Director of the Census determines that more than ﬁve per centum of the citizens of voting age residing in such State or political subdivision are members of a single language minority. With respect to subsection (b) of this section, the term “test or device”, as deﬁned in this subsection, shall be employed only in making the determinations under the third sentence of that subsection.
(4) Whenever any State or political subdivision subject to the prohibitions of the second sentence of subsection (a) of this section provides any registration or voting notices, forms, instructions, assistance, or other materials or information relating to the electoral process, including ballots, it shall provide them in the language of the applicable language minority group as well as in the English language: Provided, That where the language of the applicable minority group is oral or unwritten or in the case of Alaskan Natives and American Indians, if the predominate language is historically unwritten, the State or political subdivision is only required to furnish oral instructions, assistance, or other information relating to registration and voting.
42 U.S.C. § 1973c Voting Rights Act § 5
§ 1973c – Alteration of voting qualiﬁcations; procedure and appeal; purpose or effect of diminishing the ability of citizens to elect their preferred candidates

19a
Addendum
(a) Whenever a State or political subdivision with respect to which the prohibitions set forth in section 1973b(a) of this title based upon determinations made under the ﬁrst sentence of section 1973b(b) of this title are in effect shall enact or seek to administer any voting qualiﬁcation or prerequisite to voting, or standard, practice, or procedure with respect to voting different from that in force or effect on November 1, 1964, or whenever a State or political subdivision with respect to which the prohibitions set forth in section 1973b(a) of this title based upon determinations made under the second sentence of section 1973b(b) of this title are in effect shall enact or seek to administer any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting different from that in force or effect on November 1, 1968, or whenever a State or political subdivision with respect to which the prohibitions set forth in section 1973b(a) of this title based upon determinations made under the third sentence of section 1973b(b) of this title are in effect shall enact or seek to administer any voting qualiﬁcation or prerequisite to voting, or standard, practice, or procedure with respect to voting different from that in force or effect on November 1, 1972, such State or subdivision may institute an action in the United States District Court for the District of Columbia for a declaratory judgment that such qualiﬁcation, prerequisite, standard, practice, or procedure neither has the purpose nor will have the effect of denying or abridging the right to vote on account of race or color, or in contravention of the guarantees set forth in section 1973b(f)(2) of this title, and unless and until the court enters such judgment no person shall be denied the right to vote for failure to comply with such qualiﬁcation, prerequisite, standard, practice, or procedure: Provided,

20a
Addendum
That such qualiﬁcation, prerequisite, standard, practice, or procedure may be enforced without such proceeding if the qualiﬁcation, prerequisite, standard, practice, or procedure has been submitted by the chief legal ofﬁcer or other appropriate ofﬁcial of such State or subdivision to the Attorney General and the Attorney General has not interposed an objection within sixty days after such submission, or upon good cause shown, to facilitate an expedited approval within sixty days after such submission, the Attorney General has affirmatively indicated that such objection will not be made. Neither an afﬁrmative indication by the Attorney General that no objection will be made, nor the Attorney General’s failure to object, nor a declaratory judgment entered under this section shall bar a subsequent action to enjoin enforcement of such qualiﬁcation, prerequisite, standard, practice, or procedure. In the event the
Attorney General afﬁrmatively indicates that no objection will be made within the sixty-day period following receipt of a submission, the Attorney General may reserve the right to reexamine the submission if additional information comes to his attention during the remainder of the sixtyday period which would otherwise require objection in accordance with this section. Any action under this section shall be heard and determined by a court of three judges in accordance with the provisions of section 2284 of Title 28 and any appeal shall lie to the Supreme Court.
(b) Any voting qualiﬁcation or prerequisite to voting, or standard, practice, or procedure with respect to voting that has the purpose of or will have the effect of diminishing

21a
Addendum
the ability of any citizens of the United States on account of race or color, or in contravention of the guarantees set forth in section 1973b(f)(2) of this title, to elect their preferred candidates of choice denies or abridges the right to vote within the meaning of subsection (a) of this section.
(c) The term “purpose” in subsections (a) and (b) of this section shall include any discriminatory purpose.
(d) The purpose of subsection (b) of this section is to protect the ability of such citizens to elect their preferred candidates of choice.

 
 No. 12-96
In the Supreme Court of the United States
SHELBY COUNTY, ALABAMA, PETITIONER v.
ERIC H. HOLDER, JR., ATTORNEY GENERAL, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
BRIEF FOR THE FEDERAL RESPONDENT
DONALD B. VERRILLI, JR. Solicitor General Counsel of Record
THOMAS E. PEREZ Assistant Attorney General
SRI SRINIVASAN Deputy Solicitor General
SARAH E. HARRINGTON Assistant to the Solicitor General
DIANA K. FLYNN ERIN H. FLYNN
Attorneys Department of Justice Washington, D.C. 20530-0001 SupremeCtBriefs@usdoj.gov (202) 514-2217

QUESTION PRESENTED
Whether Congress’s decision in 2006 to reauthorize Section 5 of the Voting Rights Act of 1965 (VRA), 42 U.S.C. 1973c, under the pre-existing coverage formula of Section 4(b) of the VRA, 42 U.S.C. 1973b(b), exceeded its authority under the Fourteenth and Fifteenth Amendments and thus violated the Tenth Amendment and Article IV of the United States Constitution.
(I)

TABLE OF CONTENTS

Page

Opinions below ................................................................................1
Jurisdiction ......................................................................................1 Statutory provisions involved .......................................................1
Statement ......................................................................................... 2 Summary of argument ...................................................................9
Argument: The 2006 reauthorization of Sections 4(b) and 5 of the
Voting Rights Act validly enforces the guarantees of
the Fourteenth and Fifteenth Amendments .......................12 A. When Congress enacted Section 5, and in its
previous reauthorizations, it determined both that Section 5’s burdens were justified by then-
current needs and that its geographic scope was tailored to the problem it targets ...............................13
B. Section 5’s preclearance requirement is justified
by current needs ...........................................................20 1. Congress found substantial evidence of
ongoing discrimination in covered jurisdictions ......................................................................20
a. Evidence from the Section 5 process ..............21 b. Other evidence of ongoing discrimination ......30
2. Petitioner’s attempts to minimize the
legislative record are unavailing ...........................34 3. Section 5 is appropriately tailored to remedy
the documented discrimination in covered jurisdictions ..............................................................39
C. Section 5’s geographic scope is tailored to the
problem it seeks to remedy .........................................47 Conclusion ...................................................................................... 57
Appendix A — Jurisdictions that have been ordered by a district court to comply with preclear-
ance requirement pursuant to bail-in mechanism in Section 3(c) of the Voting
Rights Act ........................................................1a

(III)

IV

Table of Contents—Continued:

Page

Appendix B — Covered jurisdictions that have successfully terminated Section 5 coverage pur-
suant to bailout mechanism in Section
4(a) of the Voting Rights Act.........................4a Appendix C — Statutory provisions ......................................12a

TABLE OF AUTHORITIES

Cases:
Abrams v. Johnson, 521 U.S. 74 (1997)................................43 Allen v. State Bd. of Elec., 393 U.S. 544 (1969) ...................37 Beer v. United States, 425 U.S. 130 (1976)...........................27 Blodgett v. Holden, 275 U.S. 142 (1927) ...............................17 Briscoe v. Bell, 432 U.S. 404 (1977).................................21, 48 Bush v. Vera, 517 U.S. 952 (1996) .........................................47 City of Boerne v. Flores, 521 U.S. 507 (1997) ..........18, 19, 34 City of Mobile v. Bolden, 446 U.S. 55 (1980) .......................36 City of Rome v. United States, 446 U.S. 156
(1980) ............................................................................. passim Crawford v. Marion Cnty. Election Bd., 553 U.S. 181
(2008) ......................................................................................44 Dillard v. Baldwin Cnty. Comm’rs, 376 F.3d 1260
(11th Cir. 2004)......................................................................40 Dillard v. Crenshaw Cnty., 640 F. Supp. 1347
(M.D. Ala. 1986) ....................................................................38 Georgia v. Ashcroft, 539 U.S. 461 (2003) ..........................6, 45 Georgia v. United States, 411 U.S. 526 (1973).................4, 18 Harper v. Virginia Bd. of Elections, 383 U.S. 663
(1966) ......................................................................................12 League of United Latin Am. Citizens v. Perry,
548 U.S. 399 (2006) ...............................................................32 Lopez v. Monterey Cnty., 525 U.S. 266 (1999)...........5, 13, 18

V

Cases—Continued:

Page

McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819) ......................................................................................18
Miller v. Johnson, 515 U.S. 900 (1995).....................23, 42, 43
Nevada Dep’t of Human Res. v. Hibbs, 538 U.S. 721 (2003) ..........................................................................19, 25, 39
Northwest Austin Mun. Util. Dist. No. One v. Holder, 557 U.S. 193 (2009) ........................................ passim
Northwest Austin Mun. Util. Dist. No. One v. Mukasey, 573 F. Supp. 2d 221 (D.D.C. 2008) ...............6, 33
Perkins v. Matthews, 400 U.S. 379 (1971)............................37
Reno v. Bossier Parish Sch. Bd., 528 U.S. 320 (2000)..........6
Rogers v. Lodge, 458 U.S. 613 (1982) ....................................36
Shaw v. Reno, 509 U.S. 630 (1993) ........................................43
South Carolina v. United States, No. 12-cv-203, 2012 WL 4814094 (D.D.C. Oct. 10, 2012)...........................29
South Carolina v. Katzenbach, 383 U.S. 301 (1966) ............................................................................. passim
Tennessee v. Lane, 541 U.S. 509 (2004)....................18, 19, 25
Texas v. Holder, No. 12-cv-128, 2012 WL 3743676 (D.D.C. Aug. 30, 2012), notice of appeal filed (D.D.C. Aug. 30, 2012)..........................................................44
Texas v. United States, No. 11-1303, 2012 WL 3671924 (D.D.C. Aug. 28, 2012), appeal pending, No. 12-496 (S. Ct.) (filed Oct. 19, 2012)......25, 26, 29, 42, 43
Thornburg v. Gingles, 478 U.S. 30 (1986) ............................38
United States v. Georgia, 546 U.S. 151 (2006).....................45
United States v. Morrison, 529 U.S. 598 (2000)..................20
Vieth v. Jubelirer, 541 U.S. 267 (2004) .................................42
Village of Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252 (1977)...........................................26

VI

Cases—Continued:

Page

Virginia, Ex parte, 100 U.S. 339 (1880) .........................13, 18 Yick Wo v. Hopkins, 118 U.S. 356 (1886) .............................12

Constitution, statutes and regulations:

U.S. Const.: Art. IV.................................................................................13 Amend. X............................................................................13 Amend. XIV ...................................................2, 9, 13, 18, 19 § 1 (Equal Protection Clause)....................................36 Amend. XV ................................................................ passim
Act of Aug. 6, 1975, Pub. L. No. 94-73, Tit. I, 89 Stat. 400 ........................................................................4, 15 §§ 201-208, 89 Stat. 400-402 .............................................16 § 203, 89 Stat. 401-402 ........................................................4
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 ............................................................................5 § 2(b), 120 Stat. 577-578....................................................20 § 2(b)(1), 120 Stat. 577 ............................................5, 21, 34 § 2(b)(2), 120 Stat. 577 ..................................................5, 21 § 2(b)(3), 120 Stat. 577 ......................................................39 § 2(b)(4)(A), 120 Stat. 577.................................................22 § 2(b)(4)(C), 120 Stat. 578...........................................30, 31 § 2(b)(7), 120 Stat. 578 ..................................................5, 30 § 2(b)(8), 120 Stat. 578 ................................................22, 30 § 2(b)(9), 120 Stat. 578 ..................................................5, 34
Voting Rights Act of 1965, Pub. L. No. 89-110, 79 Stat. 437 ..............................................................................2 § 2, 79 Stat. 437 ......................................................... passim § 4(a), 79 Stat. 438 .............................................4, 14, 17, 54

VII

Statutes and regulations—Continued:

Page

§ 4(b), 79 Stat. 438 .................................................... passim § 5, 79 Stat. 439 ......................................................... passim § 8, 79 Stat. 441..................................................................30 Voting Rights Act of 1965, 42 U.S.C. 1973 et seq. .................2 42 U.S.C. 1973a(c) .........................................................3, 53 42 U.S.C. 1973b ...................................................................8 42 U.S.C. 1973b(a) (2006 & Supp. II 2008) ....................53 42 U.S.C. 1973b(a)(3) ........................................................56 42 U.S.C. 1973b(a)(5) ........................................................56 42 U.S.C. 1973b(b)...............................................................3 42 U.S.C. 1973c....................................................................2 42 U.S.C. 1973c(a) .............................................................45 42 U.S.C. 1973c(b) .........................................................6, 46 42 U.S.C. 1973c(c) ...............................................................6 42 U.S.C. 1973c(d) ...............................................................6 42 U.S.C. 1973f(a)(2)(A) ...................................................31 Voting Rights Act Amendments of 1970, Pub. L. No. 91-285, 84 Stat. 314............................................4 Voting Rights Act Amendments of 1982, Pub. L. No. 97-205, 96 Stat. 131............................................4 § 2(b)(4), 96 Stat. 131-132...................................................4 § 2(b)(5)(B), 96 Stat. 131-133 ...........................................17 § 2(b)(6), 96 Stat. 133 ........................................................16 28 C.F.R.: Section 51.54(a)..................................................................26 Section 51.56 ......................................................................43

Miscellaneous:
116 Cong. Rec. (1970): pp. 5517-5518......................................................................14 pp. 5520-5521......................................................................15

VIII

Miscellaneous—Continued:

Page

p. 5521 ...........................................................................14, 49
The Continuing Need for Section 5 Pre-Clearance: Hearing Before the Senate Judiciary Comm., 109th Cong., 2d Sess. 22-23 (2006) .....................................29
Continuing Need for Section 203’s Provisions for Limited English Proficient Voters: Hearing Before the Senate Judiciary Comm., 109th Cong., 2d Sess. (2006).......................................................................30
30 Fed. Reg. 9897 (Aug. 7, 1965) .............................................7
76 Fed. Reg. 7472 (Feb. 9, 2011) ...........................................42
H.R. Rep. No. 196, 94th Cong., 1st Sess. (1975) ........................................................15, 21, 22, 33, 37, 49
H.R. Rep. No. 227, 97th Cong., 1st Sess. (1981) ..............................................................15, 16, 21, 37, 54
H.R. Rep. No. 397, 91st Cong., 1st Sess. (1969) ............14, 21
H.R. Rep. No. 439, 89th Cong., 1st Sess. (1965)..................48
H.R. Rep. No. 478, 109th Cong., 2d Sess. (2006)........passim
Joint View of 10 Members of the Judiciary Committee Relating to Extension of the Voting Rights Act of 1965 (116 Cong. Rec. 5517-5521) (Mar. 2, 1970) ...........................................................................14, 15, 49
Modern Enforcement of the Voting Rights Act: Hearing Before the Senate Judiciary Comm., 109th Cong., 2d Sess. (2006)....................................25, 28, 54
Reauthorizing the Voting Rights Act’s Temporary Provisions: Policy Perspectives and Views From the Field: Hearing Before the Subcomm. on the Constitution, Civil Rights and Property Rights of the Senate Judiciary Comm., 109th Cong., 2d Sess. (2006) ................................................................................41, 54

IX

Miscellaneous—Continued:

Page

Renewing the Temporary Provisions of the Voting Rights Act: Legislative Options After LULAC v. Perry: Hearing Before the Subcomm. On the Constitution, Civil Rights and Property Rights, of the Senate Judiciary Comm., 109th Cong., 2d Sess. 23 (2006) ......................................................................................54
S. Rep. No. 295, 94th Cong., 1st Sess. (1975) ..............................................................15, 16, 21, 33, 37
S. Rep. No. 417, 97th Cong., 2d Sess. (1982) ............................................................................. passim
S. Rep. No. 295, 109th Cong., 2d Sess. (2006)......................20
To Examine the Impact and Effectiveness of the Voting Rights Act: Hearing Before the Subcomm. on the Constitution of the House Judiciary Comm., 109th Cong., 1st Sess. (2005).................28, 29, 37, 40, 46, 50
U.S. Census Bureau:
Statistical Abstract of the United States, State Rankings, Black or African-American Population Alone, Number—July 2008, http:// www.census.gov/compendia/statab/2012/ ranks/rank12.html ....................................................... 51
Statistical Abstract of the United States, State Rankings, Hispanic or Latino Population, Number—July 2008, http://www.census.gov/ compendia/statab/2012/ranks/rank16a.html ...........51
Voting Rights Act: Evidence of Continued Need: Hearing Before the Subcomm. on the Constitution of the House Judiciary Comm., 109th Cong., 2d Sess. (2006) .............................................................. passim

X

Miscellaneous—Continued:

Page

Voting Rights Act: Section 5—Preclearance Standards: Hering Before the Subcomm. on the Constitution of the House Judiciary Comm., 109th Cong., 1st Sess. (2005) ........23, 24, 29, 46, 50
Voting Rights Act: Section 5 of the Act— History, Scope, and Purpose: Hearing Before the Subcomm. on the Constitution of the House Judiciary Comm., 109th Cong., 1st Sess. (2005)............passim
Voting Rights Act: The Continuing Need for Section 5: Hearing Before the Subcomm. on the Constitution of the House Judiciary Comm., 109th Cong., 1st Sess. 12-13, 81 (2005) .....................................................38
Voting Rights Act: The Judicial Evolution of the Retrogression Standard: Hearing Before the Subcomm. on the Constitution of the House Judiciary Comm., 109th Cong., 1st Sess. (2005) ................................46

In the Supreme Court of the United States
No. 12-96 SHELBY COUNTY, ALABAMA, PETITIONER
v. ERIC H. HOLDER, JR., ATTORNEY GENERAL, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
BRIEF FOR THE FEDERAL RESPONDENT
OPINIONS BELOW
The opinion of the court of appeals (Pet. App. 1a110a) is reported at 679 F.3d 848. The opinion of the district court (Pet. App. 111a-291a) is reported at 811 F. Supp. 2d 424.
JURISDICTION
The judgment of the court of appeals was entered on May 18, 2012. The petition for a writ of certiorari was filed on July 20, 2012, and was granted on November 9, 2012. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).
STATUTORY PROVISIONS INVOLVED
The relevant statutory provisions are reprinted in an appendix to this brief. App. C, infra, 12a-28a.
(1)

2
STATEMENT
1. a. Section 5 of the Voting Rights Act of 1965 (VRA), 42 U.S.C. 1973 et seq., is one of the most consequential, and amply justified, exercises of federal legislative power in our nation’s history. Although the Fourteenth and Fifteenth Amendments have, since 1870, guaranteed citizens the right to vote free of discrimination on the basis of race, “the blight of racial discrimination in voting”—which manifested itself in the most blatant and virulent forms—continued to “infect[] the electoral process in parts of our country for nearly a century” thereafter. South Carolina v. Katzenbach, 383 U.S. 301, 308 (1966). Congress repeatedly tried to address the problem by enacting laws “facilitating case-bycase litigation against voting discrimination.” Id. at 313. But voting litigation is “unusually onerous to prepare” and “exceedingly slow,” and “some of the States affected” by federal decrees “merely switched to discriminatory devices not covered by” them. Id. at 313-314. Faced with obdurate and enduring resistance that undermined the proper functioning of our democracy, Congress enacted more aggressive and distinctive measures as part of the VRA, Pub. L. No. 89-110, 79 Stat. 437 (1965 Act).
Section 5 applies to specified jurisdictions, and prohibits them from adopting or implementing any change in a “standard, practice, or procedure with respect to voting” without first obtaining preclearance from either the United States Attorney General or the United States District Court for the District of Columbia. 42 U.S.C. 1973c. To obtain preclearance, the jurisdiction must demonstrate that the proposed change does not have the purpose and will not have the effect of discriminating on the basis of race. Ibid. Section 5 sought to

3 overcome the inefficacy of case-by-case adjudication by “prescrib[ing] remedies” that “go into effect without any need for prior adjudication” and would initially stay in place for five years. South Carolina, 383 U.S. at 327328.
When Congress enacted Section 5, “[i]t knew precisely which states it sought to cover and crafted the criteria” set forth in the statutory coverage provision in order “to capture those jurisdictions.” Pet. App. 6a-7a. Rather than identify particular States by name in the statute’s text, Congress chose to describe (in Section 4(b) of the VRA, 42 U.S.C. 1973b(b)) the jurisdictions it wished to cover by listing two voting-related criteria that it knew were shared by each such jurisdiction: (1) the use of a defined voting test or device as of November 1, 1964, and (2) a voter registration or turnout rate that was below 50% in the 1964 presidential election. § 4(b), 79 Stat. 438. Those criteria—often referred to as the “coverage formula”—do not themselves identify the particular voting problems with which Congress was most concerned. Rather, the criteria were “reverseengineer[ed]” to describe in objective, voting-related terms the jurisdictions Congress had already determined it wanted to cover based on “evidence of actual voting discrimination.” Pet. App. 56a.
Because Congress used objective criteria to describe the covered jurisdictions rather than identify them by name, the scope of the coverage had the potential to be both over- and under-inclusive. Congress therefore included “bail-in” and “bailout” procedures. Under Section 3(c)’s bail-in standard, a federal court may order a jurisdiction found to have violated the Constitution’s prohibition on voting discrimination to obtain preclearance for some or all future voting changes. 42 U.S.C.

4 1973a(c). Under Section 4(a)’s original bailout standard, a jurisdiction could terminate its coverage by demonstrating that it had not used a test or device for a discriminatory purpose (and therefore should never have been covered). 1965 Act § 4(a), 79 Stat. 438.
This Court upheld the provisions of the VRA, including Sections 4(b) and 5, as appropriate means of enforcing the guarantees of the Fifteenth Amendment. South Carolina, 383 U.S. at 323-337.
b. Congress reauthorized Sections 4(b) and 5 in 1970 (for five years), 1975 (for seven additional years), and 1982 (for 25 additional years). See Voting Rights Act Amendments of 1970, Pub. L. No. 91-285, 84 Stat. 314; Act of Aug. 6, 1975 (1975 Amendment), Pub. L. No. 9473, Tit. I, 89 Stat. 400; Voting Rights Act Amendments of 1982 (1982 Amendment), Pub. L. No. 97-205, 96 Stat. 131. In 1975, Congress also expanded Section 5’s reach to cover jurisdictions that had engaged in widespread discrimination against minority voters, including members of identified racial groups described in the statute as “language minority” groups. 1975 Amendment, § 203, 89 Stat. 401-402; Pet. App. 8a. In 1982, Congress significantly eased the bailout standard: Whereas bailout originally extended only to jurisdictions that could show they should not have been covered in the first place, the amended standard allows jurisdictions and subjurisdictions to bail out if they can demonstrate that they have complied with enumerated nondiscrimination requirements for ten years. 1982 Amendment § 2(b)(4), 96 Stat. 131-132; see Pet. App. 9a, 128a-129a. This Court upheld the constitutionality of Sections 4(b) and 5 after each reauthorization. See Georgia v. United States, 411 U.S. 526, 534-535 (1973); City of Rome v. United States,

5 446 U.S. 156, 172-182 (1980); Lopez v. Monterey Cnty., 525 U.S. 266, 282-285 (1999).
c. In 2006, Congress again reauthorized Section 5. Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting Rights Act Reauthorization and Amendments Act of 2006 (2006 Amendment), Pub. L. No. 109-246, 120 Stat. 577. Congress held extensive hearings over many months to investigate both (i) whether ongoing problems of voting discrimination in covered jurisdictions justified extending the life of Section 5 and (ii) whether the most egregious voting discrimination remained largely concentrated in covered jurisdictions. Following that review, Congress enacted the 2006 Amendment by a unanimous (98-0) vote in the Senate and a nearly unanimous (390-33) vote in the House of Representatives.
Congress did so on the basis of statutory findings that, “without the continuation of the [VRA’s] protections, racial and language minority citizens will be deprived of the opportunity to exercise their right to vote, or will have their votes diluted, undermining the significant gains made by minorities in the last 40 years.” § 2(b)(9), 120 Stat. 578. Congress further found that “40 years has not been a sufficient amount of time to eliminate the vestiges of discrimination following nearly 100 years of disregard for the” Fifteenth Amendment. § 2(b)(7). Congress recognized that, as a “direct result” of the VRA, “[s]ignificant progress has been made in eliminating first generation barriers experienced by minority voters.” § 2(b)(1). Congress determined, however, that “vestiges of discrimination in voting continue to exist as demonstrated by second generation barriers constructed to prevent minority voters from fully participating in the electoral process.” § 2(b)(2).

6 In addition to reauthorizing Section 5 for an additional 25 years, Congress amended Section 5’s substantive standard in two ways. First, Congress provided that an election change motivated by racially discriminatory purpose may not be precleared, whether or not the change is retrogressive. See 42 U.S.C. 1973c(c). That change supplanted this Court’s statutory holding in Reno v. Bossier Parish School Board, 528 U.S. 320 (2000) (Bossier II) that changes motivated by discrimination were not a basis for denying preclearance unless retrogressive. Second, Congress provided that preclearance should be denied if an electoral change diminishes, on account of race, citizens’ ability “to elect their preferred candidates of choice.” 42 U.S.C. 1973c(b) and (d). That change supplanted this Court’s statutory holding in Georgia v. Ashcroft, 539 U.S. 461 (2003), that a proposed redistricting plan was not retrogressive even though it reduced minority voters’ ability to elect their candidates of choice because it created new districts in which minority voters could potentially influence the outcome of an election. d. Immediately after the 2006 reauthorization, a jurisdiction in Texas filed suit seeking to bail out of coverage under Sections 4(b) and 5, and in the alternative challenging the constitutionality of the 2006 reauthorization of Section 5. A three-judge court held that the jurisdiction was ineligible to apply for bailout and rejected the constitutional challenge. Northwest Austin Mun. Util. Dist. No. One v. Mukasey, 573 F. Supp. 2d 221, 230-283 (D.D.C. 2008) (Northwest Austin (D.D.C.)). This Court reversed the statutory bailout holding and declined to reach the constitutional question. Northwest Austin Mun. Util. Dist. No. One v. Holder, 557 U.S. 193 (2009) (Northwest Austin). The Court’s resolution of

7 the statutory question significantly expanded the number of jurisdictions eligible to apply for bailout compared to the Department of Justice’s previous understanding of the scope of Section 4(a). Id. at 206-211. Although the Court did not decide the constitutional question, the Court (like Congress) acknowledged the progress minority voters had made in covered jurisdictions, in “significant” part because of “the Voting Rights Act itself.” Id. at 202. Noting that “these improvements” may be “insufficient and that conditions [may] continue to warrant preclearance under the Act,” the Court observed that “the Act imposes current burdens and must be justified by current needs.” Id. at 203. The Court also noted Section 5’s distinctive differentiation between covered and noncovered States, and explained that its “disparate geographic coverage” must be “sufficiently related to the problem that it targets.” Ibid.
2. As a political subdivision of the fully covered State of Alabama, petitioner has been required to comply with Section 5 since 1965. 30 Fed. Reg. 9897 (Aug. 7, 1965). In April 2010, petitioner filed suit seeking a declaratory judgment that Sections 4(b) and 5 of the VRA are facially unconstitutional and a permanent injunction barring their enforcement. Pet. App. 145a, 149a.
The district court granted summary judgment to the Attorney General. Pet. App. 114a-115a, 291a. Based on a detailed review of the “extensive 15,000-page legislative record” supporting the 2006 reauthorization, the court concluded that Congress had found ample evidence of a history and ongoing pattern of voting discrimination in covered jurisdictions. Id. at 114a, 130a-132a, 189a-255a, 270a-290a. The court also credited Congress’s conclusion that Section 2’s nationwide prohibition against discriminatory voting practices and proce-

8 dures, 42 U.S.C. 1973b, would be an “inadequate remedy” in covered jurisdictions. Pet. App. 269a-270a (quoting H.R. Rep. No. 478, 109th Cong., 2d Sess. 57 (2006)). Finally, the court rejected petitioner’s challenge to the scope of Section 5’s geographic coverage. Id. at 280a290a.
3. The court of appeals affirmed. Pet. App. 1a-110a. Relying on this Court’s decision in Northwest Austin to set the framework for its analysis, the court first concluded that Section 5’s burdens are justified by current needs, as demonstrated by the extensive record Congress amassed of “widespread and persistent racial discrimination in voting in covered jurisdictions.” Id. at 25-26a. The court also concluded that Section 5’s “disparate geographic coverage is sufficiently related to the problem that it targets,” id. at 48a, relying on evidence before Congress comparing the degree of voting discrimination in covered and noncovered jurisdictions, id. at 49a-51a, 130a. The court rejected petitioner’s argument that it was irrational for Congress to maintain the coverage criteria in Section 4(b), id. at 55a-61a, explaining that Congress first “identified the jurisdictions it sought to cover” based on evidence of voting discrimination in those areas and then “reverse-engineer[ed] a formula to cover those jurisdictions,” id. at 56a-57a. The court concluded that the statute’s bail-in and bailout provisions further ensure that Section 5 applies to jurisdictions with the worst recent records of voting discrimination. Id. at 61a-65a.
Judge Williams dissented, explaining that he would find Section 4(b)’s coverage provision unconstitutional even if Congress might be justified in continuing to impose Section 5’s preclearance remedy in some covered jurisdictions. Pet. App. 70a, 78a, 104a.

9
SUMMARY OF ARGUMENT
The right to vote is essential to securing the fundamental rights embodied in our Constitution, and invidious racial discrimination is the most pernicious form of governmental discrimination prohibited by the Constitution. Congress therefore acts at the zenith of its constitutional authority when it enforces the guarantees of the Fourteenth and Fifteenth Amendments by enacting legislation to protect citizens from racial discrimination in voting, as it has with Section 5.
When it originally enacted Section 5, and in connection with each prior reauthorization, Congress made the considered judgment that the statute’s distinctive preclearance regime and focused geographic coverage were justified by then-current needs that were of pronounced significance in the covered jurisdictions. This Court upheld Section 5 after its initial enactment and each of its prior reauthorizations. Congress’s 2006 reauthorization is entitled to the same respect from this Court because it is grounded in the same analysis, and is fully justified on the basis of the legislative record and the congressional findings. The decision to reauthorize Section 5 ultimately rests on empirical assessments of social conditions and predictive judgments that the Constitution entrusts to Congress, and those judgments should receive great deference.
Congress examined the treatment of minority voters in covered jurisdictions and throughout the country. Congress learned that, since 1982, approximately 2400 discriminatory voting changes had been blocked by more than 750 Section 5 objections. Without Section 5, the only way to challenge those voting changes would have been through case-by-case litigation, a system that would have resulted in years of discriminatory treat-

10 ment of minority voters and required an enormous expenditure of resources by all sides. Congress also learned that more than half of the objections interposed in the relevant period were based at least in part on a concern with discriminatory purpose. Blocking changes adopted with a discriminatory purpose necessarily blocks unconstitutional state action.
Congress also gathered evidence of voting discrimination from outside the Section 5 process, including: successful Section 2 suits filed against covered jurisdictions; continued disparities between minority voters’ registration and participation rates as compared to those of non-Hispanic white voters; the Attorney General’s experience in certifying and dispatching election observers; the persistence of severe racially polarized voting in covered jurisdictions; and testimony of experts, voters, and practitioners about ongoing intimidation, harassment, voter suppression, and intentionally dilutive practices by covered jurisdictions. Congress reasonably determined that there remains an unacceptable degree of discrimination against minority voters in covered jurisdictions, and that Section 2 of the VRA alone would afford an inadequate remedy in those jurisdictions.
Congress also acted well within its authority in concluding that it should maintain Section 5’s existing geographic coverage scope. Congress gathered evidence comparing the extent of voting discrimination in covered and noncovered jurisdictions since the prior reauthorization, and that evidence showed that discrimination remains substantially more prevalent in covered jurisdictions. A particularly probative comparator is the prevalence of Section 2 suits with outcomes favorable to minority plaintiffs: Although Section 5 itself halts the

11 implementation of new discriminatory practices, Congress found that covered jurisdictions nonetheless accounted for much more than their proportional share of such cases.
Congress accordingly left unaltered the statutory coverage criteria in Section 4(b) of the VRA. That provision describes covered jurisdictions in terms of objective, election-related criteria that were reverseengineered to capture the jurisdictions Congress knew it wanted to cover when initially enacting the VRA. Congress in 2006 determined that the same jurisdictions should continue to be covered.
Because of the statute’s bail-in and bailout mechanisms, moreover, Section 5’s geographic scope is not set in stone. Covered jurisdictions that have not discriminated against minority voters for ten years, as evidenced by statutorily defined indicia, may terminate their coverage. In the short time since this Court’s decision in Northwest Austin expanded the number of jurisdictions eligible to apply for bailout, the number of bailouts has sharply increased. There is every reason to think that jurisdictions exhibiting a reformed commitment to nondiscriminatory conduct will continue to bail out of coverage. For covered jurisdictions that fail to do so, Congress’s reasoned judgment that it needs to extend the life of what has been the most successful means of fighting a most egregious constitutional problem should be sustained.

12
ARGUMENT
THE 2006 REAUTHORIZATION OF SECTIONS 4(b) AND 5 OF THE VOTING RIGHTS ACT VALIDLY ENFORCES THE GUARANTEES OF THE FOURTEENTH AND FIFTEENTH AMENDMENTS
Assuring the sanctity of the right to vote is essential to our democratic system of government. That right, as this Court has said, is “preservative of all rights.” Harper v. Virginia Bd. of Elections, 383 U.S. 663, 667 (1966); see, e.g., Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886). The guarantee that the government will not invidiously discriminate against individuals because of their race is equally fundamental. Nearly 150 years ago, the Nation adopted two constitutional amendments prohibiting States from infringing citizens’ right to equal participation in the political system because of their race. But securing the promise of those amendments has required a great struggle.
To be sure, progress has been made in the last 50 years, much of it as a direct result of Section 5, and it is true that we are now a very different nation. In 2006, however, Congress made the considered judgment that there remains considerable work to do and that Section 5 remains essential to doing it. That assessment was not undertaken lightly or without appreciation of the differential obligations the statute places upon covered jurisdictions; Congress held 21 hearings, amassing thousands of pages of evidence. And in an era of sharp partisan division within the legislative branch, Congress voted nearly unanimously to reauthorize Section 5. That judgment is entitled to deference and should be upheld, just as the Court affirmed Congress’s comparable judgments in enacting and repeatedly reauthorizing Section 5 previously.

13
Because Sections 4(b) and 5 of the VRA are valid means of enforcing the guarantees of the Fourteenth and Fifteenth Amendments, they do not violate Article IV of the Constitution or the Tenth Amendment. The restrictions embodied in the Fourteenth and Fifteenth Amendments “are directed to the States, and they are to a degree restrictions of State power.” Ex parte Virginia, 100 U.S. 339, 346 (1880). Congress’s legitimate enforcement of those restrictions “is no invasion of State sovereignty.” Ibid.; see Lopez v. Monterey Cnty., 525 U.S. 266, 282-283 (1999).
A. When Congress Enacted Section 5, And In Its Previous Reauthorizations, It Determined Both That Section 5’s Burdens Were Justified By Then-Current Needs And That Its Geographic Scope Was Tailored To The Problem It Targets
Although the question before the Court is whether Section 5 of the Voting Rights Act today remains a valid means of enforcing the guarantees of the Fourteenth and Fifteenth Amendments, this Court explained in South Carolina v. Katzenbach, 383 U.S. 301, 308 (1966), that the “constitutional propriety” of that provision “must be judged with reference to the historical experience which it reflects.” That experience demonstrates Congress’s active role in assessing the evolving problem of voting discrimination and tailoring its response. Congress’s 2006 reauthorization is of a piece with its prior actions.
1. “The first century of congressional enforcement of the [Fifteenth] Amendment * * * can only be regarded as a failure.” Northwest Austin Mun. Util. Dist. No. One v. Holder, 557 U.S. 193, 197 (2009); see South Carolina, 383 U.S. at 310. During that period, southern States enacted various means of preventing minority

14 citizens (primarily African-Americans) from registering to vote and casting ballots. Id. at 310-311. Congress eventually responded in the 1950s and 1960s with a series of enforcement measures that “depended on individual lawsuits filed by the Department of Justice.” Northwest Austin, 557 U.S. at 197. But those measures proved ineffective. See id. at 197-198; South Carolina, 383 U.S. at 314, 335. Congress again responded by enacting the VRA, which includes (in Section 2) another means of case-by-case litigation. But having tried and failed for decades to combat voting discrimination in the South through piecemeal litigation, Congress also enacted the stronger medicine of Section 5 for “areas where voting discrimination has been most flagrant.” Northwest Austin, 557 U.S. at 198.
2. Congress assumed that Section 5’s preclearance regime for covered jurisdictions would not be necessary forever, and provided that it would expire in five years unless reauthorized. See 1965 Act § 4(a), 79 Stat. 438. In so doing, Congress ensured that future legislatures would periodically assess whether the burdens imposed by Section 5 continued over time to “be justified by current needs.” Northwest Austin, 557 U.S. at 203. Congress has taken that obligation seriously each time it has reauthorized Section 5.
As the end of Section 5’s initial five-year period approached, Congress held 14 hearings to examine the state of affairs in covered jurisdictions. See H.R. Rep. No. 397, 91st Cong., 1st Sess. 2 (1969) (1969 House Report); 116 Cong. Rec. 5517-5518, Joint View of 10 Members of the Judiciary Committee Relating to Extension of the Voting Rights Act of 1965 (1970) (Joint View). Congress recognized that significant progress had been made, in large part because of Section 5. Joint View

15 5521. But the evidence amassed by Congress showed that ongoing discrimination in covered jurisdictions remained sufficiently severe to necessitate Section 5’s extension. Id. at 5520-5521.
In 1975, Congress again “gave careful consideration to the propriety of readopting § 5’s preclearance requirement,” holding 20 days of hearings. City of Rome v. United States, 446 U.S. 156, 181 (1980); H.R. Rep. No. 196, 94th Cong., 1st Sess. 4 (1975) (1975 House Report); S. Rep. No. 295, 94th Cong., 1st Sess. 10 (1975) (1975 Senate Report). Congress again acknowledged that Section 5 had continued to advance the voting rights of minority citizens in covered jurisdictions. 1975 House Report 6-8; 1975 Senate Report 13-15. Relying on the character and extent of Section 5 objections interposed by the Attorney General, however, Congress concluded that “the nature of that progress ha[d] been limited” and that there were many “gains yet to be achieved.” 1975 Senate Report 13-15. Congress thus again reauthorized Section 5 (this time for seven years). 1975 Amendment. This Court upheld the extension, concluding that “Congress’ considered determination that at least another 7 years of statutory remedies were necessary to counter the perpetuation of 95 years of pervasive voting discrimination is both unsurprising and unassailable.” City of Rome, 446 U.S. at 182.
In 1982, Congress again reauthorized Section 5 after examining in detail—over 27 days of hearings—the extent of voting discrimination in covered jurisdictions. H.R. Rep. No. 227, 97th Cong., 1st Sess. 2 (1981) (1981 House Report); S. Rep. No. 417, 97th Cong., 2d Sess. 3 (1982) (1982 Senate Report). Although Congress concluded that Section 5’s preclearance requirement remained an effective means of combating voting discrimi-

16 nation in the covered jurisdictions, 1981 House Report 711; 1982 Senate Report 4-9, Congress determined that covered jurisdictions continued to erect discriminatory barriers to registration and voting and continued to use discriminatory dilutive techniques. 1981 House Report 13-20; 1982 Senate Report 9-14. Congress therefore reauthorized Section 5 for an additional 25 years (thereby capturing two redistricting cycles). 1982 Amendment, § 2(b)(6), 96 Stat. 133.
3. Congress has also undertaken, in connection with each reauthorization, the second inquiry highlighted in Northwest Austin—i.e., examining whether the “statute’s disparate geographic coverage [has remained] sufficiently related to the problem that it targets.” 557 U.S. at 203. In 1975, for example, Congress investigated voting discrimination in noncovered jurisdictions, particularly discrimination against racial minority groups “who are from environments in which the dominant language is other than English.” 1975 Senate Report 24; id. at 24-30. Finding “overwhelming evidence” of “the voting problems encountered by language minority citizens,” Congress expanded the scope of Section 5 to cover jurisdictions where such discrimination was the most severe, including States such as Texas, Alaska, and Arizona. Id. at 30-31; 1975 Amendment §§ 201-208, 89 Stat. 400-402. In 1982, Congress again considered whether to expand the geographic scope of Section 5— this time rejecting a proposal to extend Section 5 to every jurisdiction in the nation because it could not make the same “extensive * * * findings of voting discrimination” nationwide that it had made and reaffirmed for covered jurisdictions. 1982 Senate Report 1415.

17 When Congress opted in 1982 to retain Section 5’s existing geographic coverage, it also provided a new means for jurisdictions to bail out of that coverage. A covered jurisdiction originally could bail out only by showing that it should not have been covered in the first place (i.e., by showing that it had not used a test or device to discriminate). 1965 Act § 4(a), 79 Stat. 438. In 1982, Congress enabled a covered jurisdiction to bail out by demonstrating that it has not discriminated for ten years, as measured by statutory criteria such as compliance with Sections 2 and 5. 1982 Amendment § 2(b)(5)(B), 96 Stat. 131-133. Congress intended that the new bailout standard would afford an “incentive to comply” with Section 5. 1982 Senate Report 14. 4. When Congress considered whether to reauthorize Section 5 in 2006, it again focused on (i) whether the provision’s burdens are justified by current needs, and (ii) whether its geographic scope remains sufficiently related to its purpose. As explained in the following pages, Congress answered both questions in the affirmative, based on investigations similar in nature and scope to the investigations it had undertaken (and this Court had approved) in the past. In reviewing Congress’s nearly unanimous judgment, this Court has explained that it must remain “keenly mindful of [its] institutional role,” cognizant that “judging the constitutionality of an Act of Congress is ‘the gravest and most delicate duty that [any] Court is called on to perform.’ ” Northwest Austin, 557 U.S. at 204-205 (quoting Blodgett v. Holden, 275 U.S. 142, 148 (1927) (Holmes, J.)). When examining Congress’s exercise of its authority to enforce the Fifteenth Amendment’s guarantees, this Court has repeatedly stated that “Congress may use any rational means to effectuate the constitutional prohibi-

18
tion of racial discrimination in voting.” South Carolina, 383 U.S. at 324; see id. at 325-327 (adopting rationality standard of McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 421 (1819)); City of Rome, 446 U.S. at 175-178; Georgia v. United States, 411 U.S. 526, 535 (1973); Lopez, 525 U.S. at 282-285. The Court has also described Congress’s authority to enforce the Fourteenth Amendment’s prohibition on race discrimination in broad terms:
Whatever legislation is appropriate, that is, adapted to carry out the objects the [Reconstruction] amendments have in view, whatever tends to enforce submission to the prohibitions they contain, and to secure to all persons the enjoyment of perfect equality of civil rights and the equal protection of the laws against State denial or invasion, if not prohibited, is brought within the domain of congressional power. Virginia, 100 U.S. at 345-346; see also Tennessee v. Lane, 541 U.S. 509, 564 (2004) (Scalia, J., dissenting) (“I shall henceforth apply the permissive McCulloch standard to congressional measures designed to remedy racial discrimination by the States.”). The Court should apply that understanding in assessing the constitutionality of Congress’s 2006 reauthorization. The “congruence and proportionality” framework more recently articulated in City of Boerne v. Flores, 521 U.S. 507 (1997), is fully consistent with that understanding here, where Congress seeks to enforce an established right rather than redefine the Constitution’s protections. In Boerne and the cases that followed, the Court has emphasized that Congress is entitled to greater leeway in determining when and by what means it may exercise its authority to enforce the Fourteenth Amendment (and by implication the Fifteenth Amend-

19 ment) when it acts to enforce a right subject to heightened constitutional protection. Nevada Dep’t of Human Res. v. Hibbs, 538 U.S. 721, 736 (2003); Lane, 541 U.S. at 528-529. Section 5 of the VRA operates at the intersection of the most fundamental of constitutional rights and the most invidious form of discrimination. Both the “any rational means” formulation articulated in South Carolina, 383 U.S. at 324, and the congruence-andproportionality framework articulated in Boerne (at least as applied to a statute prohibiting racial discrimination in voting) demand substantial deference to Congress’s considered judgment that Section 5 of the VRA remains an appropriate means of enforcing the guarantees of the Fourteenth and Fifteenth Amendments.
It is true that Section 5 imposes a burden on covered jurisdictions that is not imposed equally on all sovereign States. But the text of the Fourteenth and Fifteenth Amendments vests Congress with the power to enforce their substantive prohibitions through “appropriate legislation.” From our country’s history and the context in which the amendments were adopted, it is to be expected that Congress would focus its enforcement authority on jurisdictions most resistant to those constitutional guarantees. As this Court’s decisions make clear, legislation is appropriate, and therefore within Congress’s authority, so long as Congress is enforcing the rights guaranteed by those amendments and not defining new rights, see Boerne, 521 U.S. at 519-520, and the burden and scope of the obligations Congress imposes are justified by current needs. The 2006 reauthorization fully meets those standards. Section 5 is therefore an appropriate exercise of Congress’s authority to enforce the Fourteenth and Fifteenth Amendments, notwithstanding its differential treatment of the States. See

20
United States v. Morrison, 529 U.S. 598, 626-627 (2000) (favorably noting, for purposes of congruence-andproportionality review, that Section 5 is “directed only to those States in which Congress found that there had been discrimination”); South Carolina, 383 U.S. at 328329 (noting that the “doctrine of the equality of States” does not bar selective application of “remedies for local evils” where they appear).
B. Section 5’s Preclearance Requirement Is Justified By Current Needs
There is no question that “[t]hings have changed in the South” since 1965. Northwest Austin, 557 U.S. at 202. But Congress made the considered judgment in 2006 (as it had in 1970, 1975, and 1982) that covered jurisdictions continue to resist minority voters’ equal enjoyment of the right to participate in the political process. Congress held 21 hearings, heard from scores of witnesses, and amassed more than 15,000 pages of evidence regarding ongoing voting discrimination in covered jurisdictions. See H.R. Rep. No. 478, 109th Cong., 2d Sess. 5, 11 (2006) (2006 House Report); S. Rep. No. 295, 109th Cong., 2d Sess. 2, 10 (2006) (2006 Senate Report). Just as it had with each previous reauthorization, Congress found that the voting rights of minority citizens in covered jurisdictions had improved, largely thanks to Section 5, but that discrimination against minority voters persists in those jurisdictions to an unacceptable degree.
1. Congress found substantial evidence of ongoing discrimination in covered jurisdictions
By a nearly unanimous vote, Congress codified the results of its investigation in statutory findings. 2006 Amendment § 2(b), 120 Stat. 577-578. Congress recog-

21
nized that “[s]ignificant progress ha[d] been made in eliminating first generation barriers experienced by minority voters” and that such “progress is the direct result of the Voting Rights Act of 1965.” § 2(b)(1). But Congress found that “vestiges of discrimination in voting continue to exist as demonstrated by second generation barriers constructed to prevent minority voters from fully participating in the electoral process.” § 2(b)(2). The phrase “first generation barriers” describes barriers to registration and the ability to cast a vote. The phrase “second generation barriers” refers to other means of depriving minority voters of the opportunity to participate in the democratic process on an equal basis—means such as discriminatory management of district lines, the adoption of at-large election schemes, and other dilutive techniques. In 1970, 1975, and 1982, Congress concluded that, as minority citizens secured the right to register and vote in greater numbers, covered jurisdictions made increasing resort to such dilutive techniques for discriminatory purposes. See 1982 Senate Report 6; 1981 House Report 17-18; 1975 Senate Report 27; 1975 House Report 19; 1969 House Report 7; see also Briscoe v. Bell, 432 U.S. 404, 405-406 (1977). Congress reached the same conclusion in 2006.
a. Evidence from the Section 5 process
By halting the implementation of any voting change until there is a determination that the change is not intended to discriminate and will not have the effect of discriminating on the basis of race, Section 5 effectively exposes voting discrimination in covered jurisdictions. In assessing the continuing need for Section 5, it therefore makes sense for Congress to rely on evidence from the preclearance process, as this Court recognized in

22 City of Rome. 446 U.S. at 181 (“The recent objections entered by the Attorney General * * * clearly bespeak the continuing need for this preclearance mechanism.”) (quoting 1975 House Report 10). In 2006, Congress found “[e]vidence of continued discrimination” in “the hundreds of [Section 5] objections interposed” since 1982. 2006 Amendment § 2(b)(4)(A) and (8); see Voting Rights Act: Evidence of Continued Need: Hearing Before the Subcomm. on the Constitution of the House Judiciary Comm., 109th Cong., 2d Sess. 272 (2006) (Continued Need).
i. The 2006 record demonstrates that Section 5 continues to play an active role in preventing and deterring constitutional violations and maintaining the progress achieved since enactment of the VRA. The number of objections interposed by the Attorney General and the District Court for the District of Columbia has not dwindled, as one would expect had Section 5 outlived its usefulness. Between 1982 and 2006, more than 750 Section 5 objections blocked the implementation of approximately 2400 discriminatory voting changes.1 See 2006 House Report 21-22, 36; Voting Rights Act: Section 5 of the Act—History, Scope, and Purpose: Hearing Before the Subcomm. on the Constitution of the House Judiciary Comm., 109th Cong., 1st Sess. 104-2595 (2005) (History, Scope, & Purpose) (reproducing objections); see also Pet. App. 31a-35a, 206a-220a.
Petitioner argues (Br. 29-30) that Section 5 is no longer needed because the proportion of objections, as compared to the number of submitted changes, has diminished over time. But petitioner’s statistical analysis paints a materially incomplete picture. Over the
1 The Department of Justice tracks the number of individual changes objected to in each objection letter.

23 years, covered jurisdictions have made an everincreasing number of submissions for preclearance, from 300-400 per year in the early 1970s to 4000-5000 per year in the 1990s and 2000s. 2006 House Report 22. What is particularly important, however, is the number of discriminatory voting changes that were blocked by Section 5—and that number has not significantly decreased over time. It is true that the number of objections per year from 1968-1982 was slightly higher than the number from 1982 to the present. See Continued Need 172. But that number remains substantial, and it actually increased in the post-1982 time period in several covered States, id. at 60 (Louisiana); id. at 54 (2/3 of objections in Mississippi interposed after 1982). That evidence indicates that the incidence of discrimination has remained significant over time in covered jurisdictions.
ii. To be sure, not all Section 5 objections represent a finding of unconstitutional discrimination. Pet. Br. 30. But Congress learned that more than half of the objections interposed by the Attorney General blocked implementation of changes the Attorney General concluded were intentionally discriminatory, thereby directly implicating constitutional violations.2 Pet. App. 33a; see Voting Rights Act: Section 5—Preclearance Standards: Hearing Before the Subcomm. on the Constitution of the House Judiciary Comm., 109th Cong., 1st Sess. 8 (2005) (Preclearance Standards). One study before Congress found a “consistent increase over time of objections
2 Petitioner attempts (Br. 35) to dismiss all of the Attorney General’s purpose-based objections on the basis of this Court’s decision in Miller v. Johnson, 515 U.S. 900 (1995). But the infirmity identified in that case (and related cases) was limited to a handful of statewide redistricting objections in the early 1990s. See p. 43, infra.

24 based on the purpose prong.” Id. at 134. In particular, the study found that 43% of all objections interposed in the 1990s were based on intent alone and that an additional 31% were based on a combination of intent and effect. Id. at 136.
Examples of intentionally discriminatory voting changes blocked by Section 5 abound. In 2001, for example, the Attorney General interposed an objection when the all-white incumbent town governance in Kilmichael, Mississippi, attempted to cancel an election shortly after black citizens had become a majority of the registered voters. History, Scope, & Purpose 16161619. When the citizens of Kilmichael finally voted (as a result of the Attorney General’s objection), they elected the town’s first African-American mayor and three African-American aldermen. 2006 House Report 37. In 2000, the Attorney General objected to a redistricting plan for the school board in Webster County, Georgia, because the jurisdiction had “intentionally decreas[ed] the opportunity of minority voters to participate in the electoral process” after the county elected a majorityblack board for the first time. History, Scope & Purpose 830-833. Similarly, the Attorney General objected in 1998 to a redistricting plan for the city of Grenada, Mississippi, because the plan was adopted with the “purpose to maintain and strengthen white control of a City on the verge of becoming majority black.” Id. at 1606-1612; see also id. at 1760-1763 (1987 objection to a change in the method of election in Bladen County, North Carolina, because “the board [of commissioners] undertook extraordinary measures to adopt an election plan [that] minimizes minority voting strength” in order to “maintain white political control to the maximum extent possible”). And in 1991, the Attorney General

25
objected to Mississippi’s legislative redistricting plans, which were “calculated not to provide black voters in the Delta with the equal opportunity for representation required by the [VRA],” and the enactment of which was “characterized by overt racial appeals.” Id. at 14101413; see Modern Enforcement of the Voting Rights Act: Hearing Before the Senate Judiciary Comm., 109th Cong., 2d Sess. 22 (2006) (Modern Enforcement).
Thus, although there has been progress in the South since 1965, the problem of voting discrimination in covered jurisdictions remains serious. In the most recent round of statewide redistricting, the three-judge District Court for the District of Columbia unanimously concluded that Texas intentionally discriminated against minority voters in redrawing portions of several statewide plans.3 See Texas v. United States, No. 11-1303, 2012 WL 3671924, at *18-*21, *59-*63, *65-*73 (Aug. 28, 2012), appeal pending, No. 12-496 (S. Ct.) (filed Oct. 19, 2012). In redrawing its congressional districts, for example, Texas removed from the only three AfricanAmerican ability-to-elect districts (and from one Hispanic ability district) the major economic engines of each district as well as the home district office of each incumbent. Id. at *19-*20, *67-*69. The State performed “[n]o such surgery” on any majority Anglo districts, declined at trial to defend its behavior on partisan grounds, and offered no explanation other than “coincidence.” Ibid.; see id. at *20 n.31. The court concluded
3 Petitioner contends (Br. 52-53) that the evidence before Congress as of 2006 is the only evidence relevant to Section 5’s continued viability. But this Court has considered post-enactment evidence when determining whether Congress validly exercised its authority under the Reconstruction Amendments. See Lane, 541 U.S. at 524-525 & nn.68, 11, 13-14; Hibbs, 538 U.S. at 733-734 & nn.6-9.

26 that “[t]he improbability of these events alone could well qualify as a ‘clear pattern, unexplainable on grounds other than race,’ ” that would “lead [it] to infer a discriminatory purpose.” Id. at *20 (internal citation omitted). In addition, in redrawing its congressional and State House plans, Texas split hundreds of voting precincts throughout the State. See id. at *37, *72, *82. As the district court noted, partisan voting data are not available at that census-block-by-census-block level within precincts, although racial data are. Id. at *82*83. That line-drawing behavior was evidence that Texas moved certain areas into or out of particular districts because of the racial composition of the areas rather than because of their partisan affiliations. See id. at *37, *72, *82-*83.
Because Section 5 places the burden of proof on the submitting jurisdiction, it is true that a purpose-based objection can be predicated on a failure to demonstrate the absence of discriminatory purpose rather than on an affirmative finding of illicit purpose. But as the district court in Texas recently explained, a covered jurisdiction can satisfy its burden “by making out a prima facie case for nondiscrimination,” thereby shifting the burden to the Attorney General to rebut that showing. 2012 WL 3671924 at *13 & n.19. Both the district court in a judicial preclearance case and the Attorney General in an administrative preclearance matter assess the sufficiency of a jurisdiction’s nondiscriminatory explanation under the criteria set forth in Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 266-268 (1977). See 28 C.F.R. 51.54(a). That is also what a court would do in assessing a voting practice challenged as unconstitutional in case-by-case litigation. Thus, although the initial burden on a covered jurisdic-

27 tion is greater under Section 5, the ultimate substantive determination regarding discriminatory purpose is not materially different.
iii. Section 5 objections based on retrogressive effect reinforce the ongoing need for the provision. By halting the implementation of voting changes in covered jurisdictions that “would lead to a retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise,” Beer v. United States, 425 U.S. 130, 141 (1976), Congress sought to protect the fragile gains minority voters had won and would continue to win through means such as case-bycase litigation, see City of Rome, 446 U.S. at 182. As this Court held in City of Rome, it was reasonable for Congress to “conclude[] that, because electoral changes by jurisdictions with a demonstrable history of intentional racial discrimination in voting create the risk of purposeful discrimination, it [is] proper to prohibit changes that have a discriminatory impact.” Id. at 177 (footnote omitted). Section 5 essentially requires such a jurisdiction to consider whether its voting changes will further erode the voting rights of its minority citizens.
A seemingly innocuous adjustment in the location or number of polling sites, for instance, can have substantial adverse consequences for minority voters in covered jurisdictions. In 1992, the Attorney General objected to the relocation of a polling place in Johnson County, Georgia, from the county courthouse to the American Legion, noting that “the American Legion in [that county] has a wide-spread reputation as an all-white club with a history of refusing membership to black applicants” and was “used for functions to which only whites are welcome.” History, Scope, & Purpose 726-728. The Attorney General concluded that “the atmosphere at the

28 American Legion is considered hostile and intimidating to potential black voters, and it appears that locating a polling place there has the effect of discouraging black voters from turning out to vote.” Id. at 727. In 2006, the Attorney General objected to a Texas jurisdiction’s plan to reduce the number of polling sites because it would result in a remarkably uneven assignment of voters, with more than ten times as many voters assigned to the precincts with the highest proportion of minority voters than to the precincts with the lowest proportion. Modern Enforcement 83-84. Such a change would have materially affected the ability of minority voters to cast their ballots.
Additionally, retrogression-based objections often halt the implementation of broader changes that would undo hard-won progress for minority voters in covered jurisdictions. During the redistricting cycle following the 2000 Census, for example, the Attorney General objected to statewide redistricting plans for Arizona and Texas that would have dismantled existing districts in which Hispanic voters possessed the ability to elect their candidates of choice (without replacing those districts with other ability-to-elect districts) even though each State had sizeable Hispanic populations. To Examine the Impact and Effectiveness of the Voting Rights Act: Hearing Before the Subcomm. on the Constitution of the House Judiciary Comm., 109th Cong., 1st Sess. 19 (2005) (Impact and Effectiveness); History, Scope, & Purpose 87, 496-501, 524-529, 2518-2523. And in some instances when the D.C. district court or the Attorney General concludes that a change is retrogressive, preclearance may be denied on that basis alone without reaching the question whether the change is also inten-

29 tionally discriminatory. See, e.g., Texas, 2012 WL 3671924, at *36-*37.
iv. Congress also concluded that Section 5 continues to deter unconstitutional discrimination. 2006 House Report 24. Congress heard repeatedly that “Section 5 has a strong deterrent effect” that has prevented jurisdictions from implementing discriminatory voting changes. Continued Need 34; see also, e.g., id. at 13, 88, 92, 303, 127, 310, 365; Preclearance Standards 44-45; Impact and Effectiveness 66; The Continuing Need for Section 5 Pre-Clearance: Hearing Before the Senate Judiciary Comm., 109th Cong., 2d Sess. 22-23 (2006) (Section 5 Pre-Clearance); History, Scope, & Purpose 84.
Congress’s recognition of Section 5’s deterrent effect cannot be dismissed as “speculative.” Pet. Br. 19. The recent preclearance litigation over South Carolina’s photo-identification requirement affords a concrete refutation of that charge. The Attorney General objected to the new photo-identification law as South Carolina initially presented it. As the judicial preclearance action progressed, South Carolina officials repeatedly altered their understanding of what the law requires and how it would be enforced until the law had evolved to a form that the court could preclear. South Carolina v. United States, No. 12-203, 2012 WL 4814094, at *4 (D.D.C. Oct. 10, 2012) (three-judge court). The evolution of that law—from one raising “serious concerns” about its effect on African-American voters to one “accomplish[ing] South Carolina’s important objectives while protecting every individual’s right to vote”—is directly attributable to the Section 5 process. Id. at *21 (Bates, J., concurring); id. at *22 (“[T]he history of [the photo-

30
identification law] demonstrates the continuing utility of Section 5 of the Voting Rights Act.”).
An additional tangible indication of Section 5’s deterrent effect relied on by Congress comes from the “administrative mechanism, known as a ‘more information request’ ” (MIR). 2006 House Report 40; see Pet. App. 32a-36a, 220a-223a. In certain instances, an MIR causes a jurisdiction to alter a proposed change after concluding “that the change would be objected to as violating the Act if it were not withdrawn.” Continued Need 124; History, Scope, & Purpose 93-94. Since 1982, more than 205 voting changes have been withdrawn in response to MIRs. 2006 House Report 41. A recent study concluded that MIRs were particularly effective during the period from 1999 to 2005, deterring many times more suspect changes than had formal objections. Continuing Need for Section 203’s Provisions for Limited English Proficient Voters: Hearing Before the Senate Judiciary Comm., 109th Cong., 2d Sess. 221 (2006).
b. Other evidence of ongoing discrimination
As previous Congresses had done when reauthorizing Section 5, Congress in 2006 also examined indicia of voting discrimination outside the Section 5 process, including “the tens of thousands of Federal observers dispatched to monitor polls in [covered] jurisdictions,” “the continued filing of section 2 cases that originated in covered jurisdictions,” continued race-based disparities in registration and participation rates, and direct evidence of voter suppression and intimidation. 2006 Amendment § 2(b)(4)(C), (7), and (8); 2006 House Report 12-45, 52-53.
i. Section 8 of the VRA authorizes the Attorney General to assign federal observers to monitor polling places in covered jurisdictions when, inter alia, he has

31 received meritorious complaints “that efforts to deny or abridge the right to vote under the color of law on account of race or color * * * are likely to occur.” 42 U.S.C. 1973f(a)(2)(A). Congress gathered evidence that the Attorney General had made such assignments based on the “reasonable belief that minority citizens are at risk of being disenfranchised,” often through “harassment and intimidation inside polling locations.” 2006 House Report 44; see Pet. App. 38a-40a, 240a-245a. In several covered States, the number of elections with assigned federal observers was greater after 1982 than it had been between 1965 and 1982. See Continued Need 78-80. The evidence before Congress established that the Attorney General often sends observers to covered jurisdictions precisely because minority voters recently faced discrimination there. See, e.g., id. at 182183, 302 (observers sent to Greensboro, Alabama, after white election officials attempted to prevent black voters from entering polling places following election of first black officials to local office in 1992); id. at 3533 (observers sent to Pike County, Georgia, in 1990 for special election after originally scheduled election was enjoined because city held illegal after-hours voter registration session open to whites only); id. at 3578 (observers sent to Humphreys County, Mississippi, in 1993 after finding that polling-place officials had harassed black voters); id. at 3642-3643 (observers sent to Galveston and Jefferson Counties in Texas in 1996 after white poll watchers harassed minority voters).
ii. Congress also found that “[e]vidence of continued discrimination includes * * * the continued filing of section 2 cases that originated in covered jurisdictions.” 2006 Amendment § 2(b)(4)(C). Analysis of reported Section 2 cases reveals widespread judicial findings of

32
serious voting discrimination against minority voters in covered jurisdictions. See, e.g., Continued Need 14; see id. at 340 (South Dakota); id. at 251, 283-287 (maps and table showing number of county-level voting practices altered as a result of Section 2 litigation in, e.g., Alabama (275), Texas (274), Georgia (76), Mississippi (74), and North Carolina (56)); History, Scope, & Purpose 78 (Texas, North Carolina, Alabama).4
One notable example was the subject of this Court’s decision in League of United Latin American Citizens v. Perry, 548 U.S. 399 (2006). The Court found that Texas adopted a congressional districting plan in 2003 bearing “the mark of intentional discrimination that could give rise to an equal protection violation” by purposefully diminishing the voting strength of a cohesive Latino community. Id. at 440. The Court explained that the State’s intentional splitting of that cohesive minority population “undermined the progress of a racial group that has been subject to significant voting-related discrimination and that was becoming increasingly politically active and cohesive,” and that “the State took away the Latinos’ opportunity” to elect their candidate of choice precisely “because Latinos were about to exercise it.” Id. at 439-440.
iii. Congress also continued to rely in 2006 on disparities in registration and turnout rates between minority and nonminority voters. When this Court upheld the 1975 reauthorization of Section 5 in City of Rome, it
4 Petitioner dismisses (Br. 36) much of the Section 2 evidence because most Section 2 suits that are resolved in plaintiffs’ favor do not result in a finding of intentional discrimination. But that practice by courts adjudicating such suits reflects the general rule of constitutional avoidance—a finding of intentional discrimination is tantamount to a finding of unconstitutional conduct.

33 noted that, “largely as a result of ” the VRA, registration of black voters “had improved dramatically since 1965.” 446 U.S. at 180. Nevertheless, the Court credited Congress’s conclusion that a significant disparity remained in at least certain covered jurisdictions, including disparities of between 16 and 24 percentage points in Alabama, Louisiana, and North Carolina. 1975 House Report 6; 1975 Senate Report 13. Comparable disparities persisted in 2006 (particularly between Hispanic and Anglo citizens), when Congress found gaps of between 11 and 20 percentage points in registration and turnout rates in Virginia and Texas. 2006 House Report 25, 31. In fact, when the statistics are adjusted to distinguish between “White Hispanic” and “White non-Hispanic” residents, the gaps are even more notable, showing that both black and Hispanic registration rates continue to lag behind those of non-Hispanic whites in all but one covered State. Northwest Austin (D.D.C.), 573 F. Supp. 2d at 248; see Pet. App. 200a-203a.
iv. Beyond the quantitative and statistical evidence, Congress also gathered thousands of pages of testimony and documents chronicling ongoing problems of vote suppression, voter intimidation, and vote dilution throughout covered jurisdictions. Examples of vote suppression, far beyond what can be summarized here, included minority voters threatened with arrest or prosecution for voting, Continued Need 3619-3620, 3979, poll workers telling language minority voters that they should not vote if they do not speak English, id. at 350, 3980, and large-scale efforts to challenge minority voters’ registration, id. at 93. Examples of vote dilution included techniques such as dilutive redistricting plans, discriminatory annexations, anti-single-shot rules, and at-large election systems. Id. at 20, 123.

34
Thus, while it is true that things have changed in covered jurisdictions, the abundant evidence collected by Congress demonstrated that discrimination remains a serious problem that fully justifies Section 5 as appropriate legislation to enforce the basic guarantees of the Fourteenth and Fifteenth Amendments. 2006 House Report 6. Congress found that the progress made in combating that discrimination “is the direct result of the Voting Rights Act.” 2006 Amendment § 2(b)(1). But Congress made the predictive judgment that further enforcement of Section 5 is necessary because, without its “protections, racial and language minority citizens will be deprived of the opportunity to exercise their right to vote, or will have their votes diluted, undermining the significant gains made by minorities in the last 40 years.” 2006 Amendment § 2(b)(9). After careful review, a near-unanimous Congress—including members representing jurisdictions covered by Section 5— voted to reauthorize the law. That determination is entitled to “much deference” by this Court. Boerne, 521 U.S. at 536.
2. Petitioner’s Attempts To Minimize The Legislative Record Are Unavailing
Petitioner argues (Br. 27-33) that much of the evidence Congress considered—and, by implication, much of the evidence previous Congresses considered—is irrelevant to assessing whether Section 5 is justified by current needs. Petitioner is incorrect.
a. Petitioner first asserts (Br. 27-28) that Congress was limited in 2006 to considering evidence that covered jurisdictions continued to engage in “the extraordinary stratagem of contriving new rules of various kinds for the sole purpose of perpet[u]ating voting discrimination in the face of adverse federal court decrees.” Br. 27-28

35 (quoting South Carolina, 383 U.S. at 335). Petitioner misperceives the Congress’s focus in enacting Section 5 and this Court’s focus in upholding it.
Although the Court noted in South Carolina that “some” of the States covered under Section 5 had engaged in the type of brazen obstruction petitioner describes, it also recognized that not all covered States had been so unsubtle in their discriminatory tactics. 383 U.S. at 329-330, 335. Both Congress and this Court instead primarily focused on the limited effectiveness of case-by-case litigation. See id. at 314-315, 327-328. In 2006, Congress again concluded that the same problems with case-by-case litigation persist today. See pp. 39-41, infra.
Section 5’s preclearance remedy was specifically designed to remove most opportunities for jurisdictions to engage in such blatant voting discrimination. Because a covered jurisdiction may not adopt a voting change without preclearance, it cannot evade a federal judicial decree by adopting new strategies for disenfranchising minority voters. In that respect, Section 5 has been a resounding success, and when this Court upheld the 1975 reauthorization of Section 5 in City of Rome, it did not inquire whether covered jurisdictions had continued to engage in the most notorious forms of voting discrimination. See 446 U.S. at 180-182. Indeed, if the obstructionist tactics that characterized the behavior of some covered jurisdictions in the 1950s and 1960s had continued unabated, that would be a strong indication that Section 5 had failed. Section 5’s effectiveness at preventing covered jurisdictions from continuing the most brazen forms of voting discrimination should not be held against it. Section 5 is designed to halt implementation of all discriminatory voting changes. In 2006, Congress

36 took seriously its duty to periodically assess whether the provision’s burdens remain justified by current needs and concluded that the persistence of more subtle (but no less consequential) forms of discrimination warranted reauthorizing Section 5.5
b. Petitioner also argues (Br. 32-33) that, even within the limited category of brazen obstruction by covered jurisdictions, the only evidence relevant to the ongoing need for Section 5 is evidence that jurisdictions continue to prevent minority voters from registering and casting votes (i.e., first-generation barriers). That is so, petitioner argues (Br. 32), because the Fifteenth Amendment bars intentional interference with access to the ballot and nothing more. This Court has not decided whether the Fifteenth Amendment bars intentional vote dilution on the basis of race. See City of Mobile v. Bolden, 446 U.S. 55, 65-66 (1980). But it has decided that such intentional discrimination violates the Equal Protection Clause of the Fourteenth Amendment. See, e.g., Rogers v. Lodge, 458 U.S. 613, 617 (1982). Thus, while the government believes Congress has authority under the Fifteenth Amendment to address discriminatory dilutive tactics, Congress has unquestioned authority to address such unconstitutional behavior pursuant to its authority to enforce the Fourteenth Amendment. See 2006 House Report 53 & n.136, 90.
5 For examples of Section 5 objections induced by jurisdictions’ adoption of changes that would undermine the effect of successful Section 2 actions, see History, Scope, & Purpose, 330-332, 340-343, 429-434, 607-608, 678-680, 795-797, 812-814, 907-910, 1141-1144, 12071210, 1360-1361, 1384-1386, 1388-1390, 1402-1404, 1516-1521, 15381540, 1574-1579, 1730-1732, 1823-1825, 1833-1836, 1935-1937, 19571959, 2041-2043, 2212-2213, 2269-2271, 2300-2303, 2307-2311.

37 Congress and this Court have long recognized covered jurisdictions’ history of employing intentionally dilutive techniques—such as at-large elections, racial gerrymandering, selective annexations, and anti-singleshot requirements—to limit the effectiveness of minority citizens’ exercise of the franchise. Pet. App. 28a, 116a-117a; City of Rome, 446 U.S. at 160; Perkins v. Matthews, 400 U.S. 379, 389 (1971); Allen v. State Bd. of Elections, 393 U.S. 544, 550, 565-566 (1969); Continued Need 142-143; Impact and Effectiveness 1139-1140, 1161-1168, 1196-1197, 1205-1208, 1223-1228, 1244, 1263. Each time Congress has reauthorized Section 5, it has noted that, although the VRA has successfully reduced barriers to minority participation, Section 5 remains necessary because covered jurisdictions continued to employ other means, including dilutive techniques, to minimize minority voters’ effectiveness. See, e.g., 1982 Senate Report 6, 10, 12 n.31; 1981 House Report 7, 18; 1975 House Report 10-11; 1975 Senate Report 16-18; 1969 House Report 7-8. Petitioner attempts to downplay the significance of the evidence of intentional vote dilution, arguing both that there are only a handful of Section 2 findings of such discrimination and that Congress may not rely on evidence of racially polarized voting. In making the first assertion (see Br. 32), petitioner disregards the hundreds of Section 5 objections interposed between 1982 and 2006, many of which blocked the implementation of intentionally dilutive changes. Nor is petitioner correct (Br. 32-33) that the only dilutive technique available to covered jurisdictions is district line-drawing, which petitioner asserts can be remedied by a judicial decree. Setting aside the necessity of redrawing district lines on at least a decennial basis, the record is replete with

38 examples of covered jurisdictions’ use of additional dilutive techniques. Petitioner itself was one of several defendants in a statewide Section 2 suit resulting in a finding that the Alabama legislature had intentionally discriminated against African-American voters by authorizing counties to switch from single-member districts to at-large voting, prohibiting single-shot voting in at-large elections, and requiring numbered posts in atlarge elections. Dillard v. Crenshaw Cnty., 640 F. Supp. 1347, 1356-1360 (M.D. Ala. 1986).
Petitioner also errs in dismissing out of hand (Br. 31) evidence of racially polarized voting. Racially polarized voting of course is not state action and thus cannot itself violate the Constitution. But evidence of pervasive racially polarized voting bears directly on the continued need for Section 5 because it is a necessary precondition for intentionally dilutive changes to achieve their intended discriminatory effect. See, e.g., Voting Rights Act: The Continuing Need for Section 5: Hearing Before the Subcomm. on the Constitution of the House Judiciary Comm., 109th Cong., 1st Sess. 49-61 (2005). In a jurisdiction where minority voters and nonminority voters consistently choose the same candidates, changing district lines would rarely dilute minority voting strength. This Court has repeatedly explained the critical role of racially polarized voting in diluting the effectiveness of minority voting strength. See, e.g., City of Rome, 446 U.S. at 183-184; Rogers, 458 U.S. at 616; Thornburg v. Gingles, 478 U.S. 30, 46-61 (1986). Congress was justified in making a statutory finding that “continued evidence of racially polarized voting in each of the” covered jurisdictions “demonstrates that racial and language minorities remain politically vulnerable,

39
warranting the continued protection of the” VRA. 2006 Amendment § 2(b)(3).6
3. Section 5 is appropriately tailored to remedy the documented discrimination in covered jurisdictions
a. Congress reasonably determined that, given the extensive evidence of voting discrimination in covered jurisdictions, case-by-case adjudication remains an inadequate guarantee of the constitutional rights of minority voters in covered jurisdictions. Petitioner asserts (Br. 37-38) that Section 2 affords a sufficient remedy. But that is a judgment for Congress to make, and after months of hearings, Congress concluded otherwise. See Pet. App. 45a-47a, 277a-278a. This Court has repeatedly affirmed that Congress is entitled to flexibility in choosing a legislative remedy when it has already tried and failed to cure a constitutional problem through alternate means. In South Carolina and City of Rome, for example, the Court acknowledged that Congress was justified in enacting Section 5’s preclearance remedy after previous attempts at legislative solutions had failed. See 383 U.S. at 309-315; 446 U.S. at 174. Similarly, the Court in Hibbs acknowledged that, “where previous legislative attempts ha[ve] failed” to cure a constitutional problem, “[s]uch problems may justify added prophylactic measures in response.” 538 U.S at 737.
The record before Congress documented three shortcomings of Section 2 litigation. First, Section 2 is purely an after-the-fact remedy. Section 2 actions can take years to litigate, during which time the challenged prac-
6 Petitioner’s assertion (Br. 48) that there were “105 instances of racially polarized voting” in the record before Congress ignores the hundreds of objection letters noting the existence of racially polarized voting throughout covered jurisdictions.

40 tice, no matter how discriminatory, remains in place. If a candidate is elected under what turns out to be an illegal voting scheme, that individual will nonetheless enjoy significant advantages of incumbency. Impact and Effectiveness 13-14; Continued Need 97. Although preliminary injunctions may be available in some cases, an illegal voting practice often must remain in effect for several election cycles before a Section 2 plaintiff can gather enough evidence to prove a discriminatory effect. History, Scope, & Purpose 92. For example, the Dillard litigation (in which petitioner was a defendant) took nearly two decades to reach a resolution. See Pet. App. 145a-147a; Dillard v. Baldwin Cnty. Comm’rs, 376 F.3d 1260, 1262 (11th Cir. 2004); p. 38, supra.
Second, Section 2 places the burden of proof on minority plaintiffs to demonstrate discrimination, while Section 5 places the burden on covered jurisdictions to demonstrate that a proposed change will not have a discriminatory effect and was not animated by a discriminatory purpose. Continued Need 97. Covered jurisdictions are much better positioned than individual citizens to amass information about potential discrimination in voting procedures without incurring undue expense. That is particularly so with respect to the purpose prong: a jurisdiction need only establish initially that it has a legitimate nondiscriminatory reason for enacting a particular change, and the jurisdiction is in the best position to know that reason.
Finally, Section 2 places a heavy financial burden on minority voters who challenge illegal election practices. See History, Scope, & Purpose 92, 97. Section 5, on the other hand, alleviates the financial burden on minority voters and places a comparatively modest financial burden associated with preclearance—especially for the

41 vast majority of changes submitted for administrative preclearance—onto covered jurisdictions. The financial burden of Section 2 litigation is particularly pronounced in local communities and rural areas, “where minority voters are finally having a voice on school boards, county commissions, city councils, water districts and the like,” but generally “do not have access to the means to bring litigation under Section 2 of the Act, [though] they are often the most vulnerable to discriminatory practices.” Id. at 84. Congress also heard testimony that complying with Section 5 is much less burdensome for covered jurisdictions in terms of “costs, time, and labor” than defending against Section 2 claims. Reauthorizing the Voting Rights Act’s Temporary Provisions: Policy Perspectives and Views From the Field: Hearing Before the Subcomm. on the Constitution, Civil Rights and Property Rights of the Senate Judiciary Comm., 109th Cong., 2d Sess. 11-13, 120-121 (2006) (Policy Perspectives).7
b. Petitioner asserts (e.g., Br. 11) that Section 5 also burdens covered jurisdictions in less tangible ways by, e.g., requiring adoption of voting practices that would be illegal under Section 2. In particular, petitioner suggests that Section 5 requires covered jurisdictions to make race the predominant factor in redistricting and requires jurisdictions to guarantee electoral success for
7 The dissenting opinion below incorrectly assumes (Pet. App. 77a) that “plaintiffs’ costs for § 2 suits can in effect be assumed by the Department of Justice by its either exercising its authority to bring suit itself or by intervening in support of the plaintiff.” As noted, p. 22, supra, more than 750 Section 5 objections halted the implementation of approximately 2400 discriminatory voting changes between 1982 and the mid-2000s.

42 minority populations. That is incorrect and reflects a misunderstanding of Section 5’s operation.
This Court has long held that a legislature may be cognizant of racial demographics in the process of redistricting, as long as race is not the predominant consideration. See Miller v. Johnson, 515 U.S. 900, 915-916 (1995); see also Vieth v. Jubelirer, 541 U.S. 267, 336 (2004). That reflects recognition that race is one axis along which citizens form communities of interest—as with, for instance, geographic proximity, similar socioeconomic status, a shared school district, political affiliation, and religious identity. Although the Constitution properly forbids reliance on race above all else in drawing district lines, it does not require jurisdictions to blind themselves to the natural occurrence of racial communities of interest within their borders so as to render minority citizens more vulnerable to dilution of their political effectiveness. Section 5 follows the same model. Indeed, the Attorney General’s regulatory guidance governing the submission of redistricting plans for Section 5 preclearance expressly states that a retrogressive redistricting plan may be entitled to Section 5 preclearance when a jurisdiction cannot draw a less retrogressive plan without violating equal protection principles by making race a predominant consideration. 76 Fed. Reg. 7472 (Feb. 9, 2011).
The recent statewide redistricting in Texas illustrates how Section 5’s purpose prong prevents rather than encourages the consideration of race above other traditional districting factors. The district court concluded that Texas had divided hundreds of existing precincts, redrawing district lines on a census-block-bycensus-block level. Although Texas claimed that it was motivated by partisanship, partisan voting data are

43 unavailable below the precinct level. Texas, 2012 WL 3671924 at *81-*82. Racial data are available at the census-block level, however, indicating that Texas elevated racial considerations above all others in dividing preexisting political units. See id. at *37, *72, *82-*83.
The dissenting opinion below warned of hypothetical unconstitutional applications of Section 5. Pet. App. 73a, 103a-110a. But any statute can be applied in an unconstitutional way; that does not mean it is unconstitutional on its face. As with any law, particular applications of Section 5 may be challenged, and this Court stands as the final arbiter. In the years immediately following the post-1990 redistricting, for example, this Court held that the Attorney General’s application of Section 5 to a handful of statewide redistricting plans required the relevant States to violate the Equal Protection Clause. See Shaw v. Reno, 509 U.S. 630 (1993); Miller, supra; Abrams v. Johnson, 521 U.S. 74 (1997). The Department of Justice responded by adjusting its enforcement of Section 5. See 28 C.F.R. 51.56 (“In making determinations [under Section 5,] the Attorney General will be guided by the relevant decisions of the Supreme Court of the United States and of other Federal courts.”). There is no indication that the Attorney General’s enforcement of Section 5 today raises any constitutional concerns; but that in any event would properly be the subject of an as-applied challenge, not a basis for invalidating the statute in its entirety in this facial challenge.
The dissenting opinion also relied on recent state laws requiring in-person voters to show identification in order to cast a vote, contending that it is irrational that noncovered States can enact such laws while covered States cannot. Pet. App. 103a. That is incorrect in both its premise and conclusion. Although the Attorney Gen-

44 eral has objected to voter-identification requirements recently enacted by two covered States (South Carolina and Texas), he has not objected to voter-identification requirements adopted by several other fully or partially covered States (e.g., Arizona, Georgia, Louisiana, Michigan, New Hampshire, and Virginia). The South Carolina objection exemplifies Section 5’s efficacy, as explained. See pp. 29-30, supra. As for Texas, a threejudge court recently concluded that Texas’s voteridentification law could not be implemented because the State failed to establish that it will not discriminate against minority voters. Texas v. Holder, No. 12-cv-128, 2012 WL 3743676 (D.D.C. Aug. 30, 2012), notice of appeal filed, Docket entry No. 366 (D.D.C. Dec. 19, 2012). The Texas law significantly differs from the Indiana law upheld in Crawford v. Marion County Election Board, 553 U.S. 181 (2008), see 2012 WL 3743676 at *13, which in any event did not present the question whether that law had the purpose or effect of discriminating on the basis of race. Because all States are subject to Section 2, all States are barred from adopting voteridentification requirements that have the purpose or effect of discriminating on the basis of race. It is true that jurisdictions covered by Section 5 bear the burden of demonstrating that their laws do not have such an intent or effect; but the shift of the burden that attends Section 5 coverage is justified by covered States’ history and record of voting discrimination.
c. Petitioner errs in arguing (Br. 25-27) that the two major substantive amendments to Section 5 in 2006 increased the burdens on covered jurisdictions in a manner augmenting the arguments against the provision’s continued constitutionality.

45 In 2006, Congress clarified that it intended Section 5 to block all intentionally discriminatory changes, not just changes adopted with a purpose to retrogress. That amendment, which superseded this Court’s interpretation of the purpose prong in Bossier II, reflects Section 5’s general focus on voting changes and is unobjectionable. The retrogression standard this Court established in Beer allows the preclearance decisionmaker to determine whether a proposed change itself (isolated from other factors) will have a discriminatory effect. In making that determination, the Attorney General (or a three-judge court) compares minority voters’ rights under the benchmark practice today (i.e., when the new practice is submitted for preclearance) with those rights under the proposed practice today. By comparing operation of the two practices at the same moment in time, the Attorney General can assess the effect of the change isolated from other changes such as demographic shifts. But there is no need to limit purpose objections under Section 5 to changes intended to retrogress. If a proposed change is intended to discriminate on the basis of race, it “has the purpose * * * of denying or abridging the right to vote on account of race.” 42 U.S.C. 1973c(a). Congress was therefore justified in clarifying that Section 5 halt implementation of unconstitutional changes by denying preclearance to any voting change with a discriminatory purpose. Cf. United States v. Georgia, 546 U.S. 151, 158 (2005) (“[N]o one doubts that § 5 [of the Fourteenth Amendment] grants Congress the power to ‘enforce . . . the provisions’ of the Amendment by creating private remedies against the States for actual violations of those provisions.”) (ellipsis in original).

46 Congress also amended Section 5’s retrogression prong to supplant this Court’s decision in Georgia v. Ashcroft, 539 U.S. 461, 480-482 (2003), which held that a proposed redistricting plan, while reducing minority voters’ ability to elect their candidates of choice, was non-retrogressive because it created new districts in which minority voters could potentially influence election outcomes. See 2006 House Report 71 & n.197. That amendment, too, is unobjectionable and fails to advance petitioner’s position. Congress determined that allowing covered jurisdictions to dismantle ability-to-elect districts while creating influence districts (the existence of which is much harder to assess) would invite dilutive tactics and undermine the progress minority voters have gained. 2006 House Report 70; Voting Rights Act: The Judicial Evolution of the Retrogression Standard: Hearing Before the Subcomm. on the Constitution of the House Judiciary Comm., 109th Cong., 1st Sess. 50, 136, 139 (2005) (Judicial Evolution). Congress also heard extensive testimony that Ashcroft’s rule was impossible to administer, particularly in the short time-frame for administrative preclearance, see, e.g., Impact and Effectiveness 889; Section 5 Pre-Clearance 8, and that switching the focus from ability-to-elect districts to influence districts would compromise the integrity of the process by enabling the injection of partisanship into Section 5 determinations, Section 5 Pre-Clearance 33; Judicial Evolution 26. Petitioner errs in suggesting (Br. 9) that the amended retrogression provision requires a guarantee of minority electoral success. A change is retrogressive under Section 5 only if it diminishes minority voters’ demonstrated “ability * * * to elect their preferred candidates of choice.” 42 U.S.C. 1973c(b). But any group

47
with the ability to elect a candidate of choice will from time to time fail to do so, and Section 5 imposes no requirement to prevent such an outcome. The amended retrogression standard leaves intact the settled principle that “[n]onretrogression is not a license for the State to do whatever it deems necessary to ensure continued electoral success; it merely mandates that the minority’s opportunity to elect representatives of its choice not be diminished.” Bush v. Vera, 517 U.S. 952, 983 (1996) (O’Connor, J.) (plurality).8
Section 5’s retrogression scheme also leaves intact States’ discretion to choose among nondiscriminatory voting practices and procedures. Section 5 does not dictate which voting practices covered jurisdictions must use nor when jurisdictions must alter existing practices. It therefore does not intrude on States’ prerogative to set voter qualifications on a nondiscriminatory basis. Section 5 is remedial, ensuring that, when a covered jurisdiction does opt to change its voting practices and procedures, it does not thereby disadvantage minority voters. And even within that framework, a State is generally free to respond to a preclearance objection by choosing among nonretrogressive alternatives.
C. Section 5’s Geographic Scope Is Tailored To The Problem It Seeks To Remedy
Based on the foregoing evidence, Congress determined that an extension of Section 5 was necessary in order to “banish the blight of racial discrimination in voting” in the jurisdictions that were covered at the time of the reauthorization. South Carolina, 383 U.S. at 308. To accomplish that, Congress could have repealed Sec-
8 Amicus Nix is incorrect in asserting (Br. 30) that Section 5 requires jurisdictions to maintain “influence districts.”

48 tion 4(b)’s coverage criteria and enacted a provision stating that all jurisdictions subject to Section 5 as of July 27, 2006, would remain covered until the provision next expired or until a jurisdiction bailed out pursuant to Section 4(a). Congress instead left Section 4(b) untouched, but the effect was exactly the same. Congress did not redetermine from scratch which jurisdictions should be subject to Section 5 in 2006 by reapplying the criteria set forth in Section 4(b). Congress used those criteria in 1965, 1970, and 1975 to determine which jurisdictions to bring under the prophylactic remedy of Section 5, and this Court has upheld those determinations. See South Carolina, 383 U.S. at 329-333; Briscoe, 432 U.S. at 409-415. In 2006, Congress opted not to extend Section 5 to any new jurisdictions ( just as it did in 1982). Instead, it maintained the existing geographic scope after determining that voting discrimination remained concentrated in covered jurisdictions.
1. Although the geographic scope of Section 5 is expressed in terms of the criteria included in Section 4(b), it has long been clear—and this Court has long understood—that those criteria were not selected because Congress was specifically focused on the voting-related concerns the criteria reflect. On the contrary, Congress sought to address all forms of voting discrimination in the jurisdictions it sought to cover. And Congress was particularly concerned about methods of voting discrimination it may not yet have seen. After holding extensive hearings in 1965, Congress determined which areas of the country were engaged in the most egregious forms of voting discrimination. Congress opted to apply Section 5’s distinctive scheme only to those areas with the worst records of discrimination.

49 Congress then “reverse-engineer[ed]” the coverage criteria in Section 4(b) to describe in objective terms those jurisdictions Congress already knew it wanted to cover. Pet. App. 56a-57a; see also South Carolina, 383 U.S. at 329; H.R. Rep. No. 439, 89th Cong., 1st Sess. 1314 (1965); Pet. App. 285a-287a. The registration and turnout triggers included in Section 4(b), along with the test-or-device requirement, thus provided a means of describing—without expressly naming—the jurisdictions with a history of “widespread and persistent discrimination in voting.” South Carolina, 383 U.S. at 328; see also, e.g., 1975 House Report 3, 22-23. Accordingly, as early as the first reauthorization, Congress noted that an improvement in the criteria included in Section 4(b) alone would not “serve as a criterion for determining when the discriminatory efforts” of covered jurisdictions “had been sufficiently eradicated to warrant removing the safeguards which made the improvement possible.” Joint View 5521. Petitioner thus misunderstands the purpose and function of Section 4(b) in complaining (e.g., Br. 40-41) that the coverage criteria are decades old. Contrary to the assertion of amici covered States (Br. of Arizona, et al. 9), the distinctions drawn among States by Section 4(b) are based on their respective records of voting discrimination, not on the enumerated statutory proxies. Those criteria are tied to decades-old data because the determinations about which jurisdictions had “perpetrat[ed] the evil” of voting discrimination to a degree warranting initial coverage were made decades ago. The relevant question in 2006 was not what modern objective criteria could be substituted for the criteria included in Section 4(b) in order to describe the same covered jurisdictions. The question was whether Sec-

50 tion 5 is still needed in the covered jurisdictions—a question Congress answered overwhelmingly in the affirmative.
2. Petitioner also argues (Br. 32-54) that Congress should not have maintained the same geographic scope in 2006 because the evidence failed to show that voting discrimination remains concentrated in the covered jurisdictions. Petitioner is incorrect.
In addition to showing that discrimination against minority voters in covered jurisdictions continues to an unacceptable degree in absolute terms, the evidence before Congress also demonstrated that “[t]he evil that § 5 is meant to address”—racial discrimination in voting—is “concentrated in the jurisdictions singled out for preclearance.” Northwest Austin, 557 U.S. at 203. Although, as this Court has suggested, see City of Rome, 446 U.S. at 181, information from the Section 5 process is the most reliable indicator of whether covered jurisdictions continue to discriminate, such information by definition is unavailable for noncovered jurisdictions. In comparing covered and noncovered jurisdictions, Congress therefore relied on national indicators such as successful Section 2 suits, disparities in registration and turnout rates, and the prevalence of racially polarized voting. See Pet. App. 49a-61a, 232a-248a, 287a-290a. And in each indicator, Congress found evidence that minority voters remain worse off in jurisdictions covered by Section 5. See, e.g., 2006 House Report 25-34; Section 5 Pre-Clearance 36-37, 66-68.
The data concerning Section 2 suits with favorable outcomes for minority plaintiffs are a particularly significant indicator that voting discrimination remains concentrated in the covered jurisdictions. Congress had before it a study showing that covered jurisdictions

51 accounted for 56% of all reported Section 2 decisions between 1982 and 2005 with favorable outcomes for minority citizens. Pet. App. 49a; see also Impact and Effectiveness 964-1124 (the Katz study). Petitioner understates that data in arguing (Br. 50-51) that Section 2 decisions show no difference between covered and noncovered States. Covered jurisdictions contain less than 25% of the nation’s total population, and the nine fully covered States contain only 32% of the nation’s African-American population and 28% of the nation’s Hispanic population.9 Covered jurisdictions thus account for much more than their proportional share of plaintiffs’ successful suits in reported Section 2 decisions. The study further showed that “the rate of successful [reported] section 2 cases in covered jurisdictions * * * is nearly four times the rate in non-covered jurisdictions” when controlling for total population, and that the absolute rate of success also is higher in covered jurisdictions. Pet. App. 49a-51a.
In addition, a more comprehensive study undertaken in the course of this litigation indicates that the differential between covered and noncovered jurisdictions is even more pronounced when considering settled and unreported Section 2 suits with outcomes favorable to minority plaintiffs. That information, derived from a study presented to Congress by the National Commission on the Voting Rights Act and supplemented in this litigation with a study by a Department of Justice histo-
9 See Statistical Abstract of the United States, State Rankings, Black or African-American Population Alone, Number—July 2008, http://www.census.gov/compendia/statab/2012/ranks/rank12.html; Statistical Abstract of the United States, State Rankings, Hispanic or Latino Population, Number—July 2008, http://www.census.gov/ compendia/statab/2012/ranks/rank16a.html.

52 rian, shows that 81% of all Section 2 cases with outcomes favorable to minority plaintiffs between 1982 and 2005 were filed in covered jurisdictions. J.A. 35a-76a, 144a155a.
Petitioner attempts (Br. 47-48, 51-53) to distort the Section 2 data by focusing on the absolute number of such cases per State without regard to population differences. But such differences matter. If a study revealed that Rhode Island and Texas had the same number of traffic incidents per year, we would conclude that Texas drivers are much safer, not that Texas and Rhode Island drivers are equally safe. When data are broken down by State, the Section 2 data show a very high correlation between the jurisdictions with the greatest number of Section 2 actions with outcomes favorable to minority plaintiffs and the jurisdictions covered by Section 5—including in absolute terms, but particularly when adjusted for population. Pet. App. 51a-53a. Of the twelve States with the highest number of successful published and unpublished Section 2 cases per million residents,10 eleven are either covered, partially covered, or have at times been subject to preclearance through the VRA’s bail-in mechanism. Pet. App. 52a-53a; see App. A, infra (listing 18 jurisdictions, including the States of Arkansas and New Mexico, ordered to obtain preclearance pursuant to Section 3(c)).
The Section 2 data must be understood, moreover, against the backdrop of Section 5. Section 5’s preclearance requirement halts the implementation of retro-
10 Those States are Alabama, Arkansas, Georgia, Louisiana, Mississippi, Montana, New Mexico, North Carolina, South Carolina, South Dakota, Texas, and Virginia. See Pet. App. 53a (chart compiled by court of appeals, which disaggregates covered and noncovered areas in North Carolina and South Dakota).

53 gressive and intentionally discriminatory voting changes. Where that mechanism is in place, one would expect to see fewer successful Section 2 actions over time, not more. That there have been more successful Section 2 suits in covered jurisdictions (many more, when adjusted for population)—even after Section 5 has been in place in those jurisdictions for 50 years—reinforces that the incidence of voting discrimination in those jurisdictions continues to be higher than in noncovered jurisdictions. That is particularly so when the Section 2 data are viewed in light of the entire record before Congress. See Pet. App. 44a-45a (summarizing evidence of discrimination in covered jurisdictions).
3. Finally, the geographic scope of Section 5 is not reflected in the coverage criteria in Section 4(b) alone. In Section 3(c), Congress provided that additional jurisdictions may be “bailed-in” to the preclearance regime if a court determines that they have violated the Fourteenth or Fifteenth Amendments. 42 U.S.C. 1973a(c). Since 1984, moreover, every covered jurisdiction has had the power to terminate its coverage pursuant to Section 4(a)’s bailout provision by ceasing discrimination within its borders. 42 U.S.C. 1973b(a). Petitioner suggests (Br. 55-56) that Congress’s amendment of the bailout standard in 1982 made the statute more burdensome rather than less. But as discussed, p. 4, 17, supra, the original bailout standard could only correct initial coverage determinations that were over-inclusive. See South Carolina, 383 U.S. at 331-332. Under that standard, bailout would have been impossible for petitioner. See Alabama Am. Br. 5-10. The amended bailout standard, in contrast, permits a covered jurisdiction to terminate its coverage if it can demonstrate that neither it nor any of its subjurisdictions has discriminated for ten years

54 based on prescribed indicia. 42 U.S.C. 1973b(a). In so doing, Congress provided an incentive to covered jurisdictions to end voting discrimination within their borders, 1981 House Report 32, granting them a measure of control over whether and how long they remain covered.
Congress heard extensive testimony, moreover, that it is neither unduly difficult nor expensive for eligible jurisdictions to bail out of Section 5 coverage. Policy Perspectives 265-266; Modern Enforcement 8, 26; Renewing the Temporary Provisions of the Voting Rights Act: Legislative Options After LULAC v. Perry: Hearing Before the Subcomm. on the Constitution, Civil Rights and Property Rights of the Senate Judiciary Comm., 109th Cong., 2d Sess. 353-355 (2006). Indeed, the Justice Department has consented to every bailout action filed by an eligible political subdivision since the amended bailout standard became effective in 1984. And in Northwest Austin, this Court vastly expanded the number of jurisdictions eligible to seek bailout (compared to the Justice Department’s previous understanding of Section 4(a)), and since that decision in 2009, the rate of successful bailouts has rapidly increased. See App. B, infra.
Since the current bailout standard took effect in 1984, there have been 38 successful bailout actions, resulting in the termination of Section 5 coverage for 196 different jurisdictions. See App. B, infra. More than half of those cases (20) were filed in the less than four years since Northwest Austin, accounting for 65% of the total number of jurisdictions that have bailed out. Ibid. Those recent bailouts include the first ever bailouts from jurisdictions in Alabama, California, Georgia, and Texas; the first bailout from a jurisdiction in North Carolina since 1967; the largest bailout at least since

55 1984 in terms of population, in Prince William County, Virginia; and the largest bailout at least since 1984 in terms of the number of subjurisdictions, in Merced County, California, which included 84 subjurisdictions. Ibid. (reliable population and subjurisdiction data are not available for the pre-1984 bailouts). There are also two additional bailout actions pending court approval, including a bailout of all covered jurisdictions in New Hampshire (which likely could have obtained bailout under the original bailout standard had it sought to do so). See Consent Judgment and Decree (proposed), New Hampshire v. Holder, No. 12-1854 (D.D.C., filed Dec. 21, 2012) (three-judge court).
Petitioner and certain amici argue (Pet. Br. 54-55; Alaska Am. Br. 12) that the possibility of bailout is illusory for covered States because they cannot bail out if one of their political subdivisions has, e.g., drawn a Section 5 objection or lost a Section 2 case. Of course, that argument does not account for the opportunity of many covered subjurisdictions within covered States to bail out—an opportunity manifestly exhibited by the increased number of bailouts in the few years since Northwest Austin. More to the point, requiring covered jurisdictions to demonstrate that governmental units within their boundaries have not discriminated in voting is reasonable. Section 5 is intended to protect minority voters in covered jurisdictions and, as Congress explained in 1982, “the Fifteenth Amendment places responsibility on the [S]tates for protecting [the] voting rights” of its citizens. 1982 Senate Report 56. States also have “significant statutory and practical control” over the election practices of their political subdivisions. Ibid. The amended bailout provision thus “contemplate[s] the same level of state responsibility and protec-

56 tion as was contemplated by the framers of the Fifteenth Amendment, and the drafters of the 1965 Act.” Id. at 57; ibid. (“States have historically been treated as the responsible unit of government for protecting the franchise.”). Congress understood, moreover, that “[w]here state attorneys general have been active in advising and educating local officials about their obligation, e.g., Virginia, there has been much less non-compliance with the law than in other covered states.” Ibid. Indeed, it has been more than nine years since the Commonwealth of Virginia or any of its political subdivisions has incurred a Section 5 objection, lost a Section 2 case, or had federal examiners or observers.
Moreover, the Attorney General enforces the bailout criteria in a flexible and practical manner. For example, if a jurisdiction seeking bailout discovers that it failed to submit voting changes in the previous ten years, the Attorney General will review those changes and, if they are determined not to be retrogressive or intentionally discriminatory, will retroactively preclear them. See Merced County Am. Br. 36-38; Alaska Am. Br. 15-18. Amicus Alaska’s insistence (Br. 18-22) that the Attorney General should not be afforded such flexibility is puzzling in light of the bailout provision’s explicit statement that bailout should not be denied based on violations of voting laws that “were trivial, were promptly corrected, and were not repeated.” 42 U.S.C. 1973b(a)(3); see Northwest Austin, 557 U.S. at 207 (adopting a “broader reading of the bailout provision” because of the structure of the VRA and underlying constitutional issues).
Petitioner also complains (Br. 56) that bailout is not a real option because a jurisdiction that successfully bails out may be subject to Section 5 anew if it is found to have violated its citizens’ voting rights in the ten years

57

following the bailout. 42 U.S.C. 1973b(a)(5). A jurisdiction with a sufficiently egregious historical record of discriminating against minority voters to warrant Section 5 coverage is poorly positioned to complain about the possibility that its terminated coverage will be reactivated if it resumes its discriminatory ways. In any event, no jurisdiction that has bailed out under the current standard has ever been recove red. Even if petitioner were correct that bailout is currently an illusory option, however, that is by definition an argument for easing of the bailout standard, not a basis for going further to second-guess Congress’s careful determination of which jurisdictions should be covered.
Because Sections 3(c), 4(a), and 4(b) together continue to identify jurisdictions in which racial discrimination in voting remains concentrated, Section 5’s “disparate geographic coverage [remains] sufficiently related to the problem that it targets,” Northwest Austin, 557 U.S. at 203.
CONCLUSION
The judgment of the court of appeals should be affirmed.
Respectfully submitted.

JANUARY 2013

DONALD B. VERRILLI, JR. Solicitor General
THOMAS E. PEREZ Assistant Attorney General
SRI SRINIVASAN Deputy Solicitor General
SARAH E. HARRINGTON Assistant to the Solicitor General
DIANA K. FLYNN ERIN H. FLYNN
Attorneys

APPENDIX A
Jurisdictions That Have Been Ordered by a District Court to Comply With Preclearance Requirement Pursuant to Bail-in Mechanism in Section 3(c) of the Vot-
ing Rights Act
1. Thurston County, Nebraska, see United States v. Thurston Cnty., C.A. No. 78-0-380 (D. Neb. May 9, 1979);
2. Escambia County, Florida, see McMillan v. Escambia Cnty., C.A. No. 77-0432 (N.D. Fla. Dec. 3, 1979);
3. Alexander County, Illinois, see Woodring v. Clarke, C.A. No. 80-4569 (S.D. Ill. Oct. 31, 1983);
4. Gadsden County School District, Florida, see N.A.A.C.P. v. Gadsden City Sch. Bd., 589 F. Supp. 953 (N.D. Fla. Mar. 6, 1984);
5. State of New Mexico, see Sanchez v. Anaya, C.A. No. 82-0067M (D.N.M. Dec. 17, 1984);
6. McKinley County, New Mexico, see United States v. McKinley Cnty., No. 86-0029-C (D.N.M. Jan. 13, 1986);
7. Sandoval County, New Mexico, see United States v. Sandoval Cnty., C.A. No. 88-1457-SC (D.N.M. May 17, 1990);
8. City of Chattanooga, Tennessee, see Brown v. Board of Comm’rs of City of Chattanooga, No. CIV-1-87-388 (E.D. Tenn. Jan. 18, 1990);
(1a)

2a 9. Montezuma-Cortez School District RE01, Colo-
rado, see Cuthair v. Montezuma-Cortez Sch. Dist. No. RE-1, No. 89-C-964 (D. Col. Apr. 8, 1990); 10. State of Arkansas, see Jeffers v. Clinton, 740 F. Supp. 585 (E.D. Ark. May 16, 1990), appeal dismissed, 498 U.S. 1129 (1991); 11. Los Angeles County, California, see Garza & United States v. Los Angeles Cnty., C.A. Nos. CV 88-5143 KN (Ex) and CV 88-5435 KN (Ex) (C.D. Cal. Apr. 26, 1991); 12. Cibola County, New Mexico, see United States v. Cibola Cnty., C.A. No. 93-1134-LH/LFG (D.N.M. Apr. 21, 1994); 13. Socorro County, New Mexico, see United States v. Socorro Cnty., C.A. No. 93-1244-JP (D.N.M. Apr. 11, 1994); 14. Alameda County, California, see United States v. Alameda Cnty., C.A. No. C 95-1266 (SAW) (N.D. Cal. Jan. 22, 1996); 15. Bernalillo County, New Mexico, see United States v. Bernalillo Cnty., C.A. No. 93-156-BB/LCS (D.N.M. Apr. 22, 1998); 16. Buffalo County, South Dakota, see Kirke v. Buffalo Cnty., C.A. No. 03-CV-3011 (D.S.D. Feb. 10, 2004); 17. Charles Mix County, South Dakota, see Blackmoon v. Charles Mix Cnty., C.A. No. 05-CV-4017 (D.S.D. Dec. 4, 2007); and

3a 18. Village of Port Chester, New York, see United
States v. Village of Port Chester, C.A. No. 06-CV-15173 (S.D.N.Y. Dec. 22, 2006).

4a
APPENDIX B
Covered Jurisdictions That Have Successfully Terminated Section 5 Coverage Pursuant to Bailout Mechanism in Section 4(a) of the Voting Rights Act
Jurisdictions Successfully Bailed Out of Section 5 Coverage Before August 5, 1984
1. Wake County, North Carolina, see Wake Cnty. v. United States, No. 1198-66 (D.D.C. Jan. 23, 1967);
2. Curry, McKinley, and Otero Counties, New Mexico, see New Mexico v. United States, No. 76-0067 (D.D.C. July 30, 1976);
3. Towns of Cadwell, Limestone, Ludlow, Nashville, Reed, Woodland, Connor, New Gloucester, Sullivan, Winter Harbor, Chelsea, Sommerville, Carroll, Charleston, Webster, Waldo, Beddington, and Cutler, Maine, see Maine v. United States, No. 75-2125 (D.D.C. Sept. 17, 1976);
4. Choctaw and McCurtain Counties, Oklahoma, see Choctaw and McCurtain Cntys. v. United States, No. 76-1250 (D.D.C. May 12, 1978);
5. Campbell County, Wyoming, see Campbell Cnty. v. United States, No. 82-1862 (D.D.C. Dec. 17, 1982);
6. Towns of Amherst, Ayer, Belchertown, Bourne, Harvard, Sandwich, Shirley, Sunderland, and

5a Wrentham, Massachusetts, see Massachusetts v. United States, No. 83-0945 (D.D.C. Sept. 29, 1983); 7. Towns of Groton, Mansfield, and Southbury, Connecticut, see Connecticut v. United States, No. 83-3103 (D.D.C. June 21, 1984); 8. El Paso County, Colorado, see Board of Cnty. Comm’rs v. United States, No. 84-1626 (D.D.C. July 30, 1984); 9. Honolulu County, Hawaii, see Waihee v. United States, No. 84-1694 (D.D.C. July 31, 1984); and 10. Elmore County, Idaho, see Idaho v. United States, No. 82-1778 (D.D.C. July 31, 1984).
Jurisdictions Successfully Bailed Out of Section 5 Coverage After August 5, 1984
1. City of Fairfax, Virginia (including City of Fairfax School Board), see City of Fairfax v. Reno, No. 97-2212 (D.D.C. Oct. 21, 1997);
2. Frederick County, Virginia (including Frederick County School Board; Towns of Middletown and Stephens City; and Frederick County Shawneeland Sanitary District), see Frederick Cnty. v. Reno, No. 99-941 (D.D.C. Sept. 10, 1999);
3. Shenandoah County, Virginia (including Shenandoah County School Board; Towns of Edinburg, Mount Jackson, New Market, Strasburg, Toms Brook, and Woodstock; Stoney Creek San-

6a itary District; and Toms Brook-Maurertown Sanitary District), see Shenandoah Cnty. v. Reno, No. 99-992 (D.D.C. Oct. 15, 1999); 4. Roanoke County, Virginia (including Roanoke County School Board and Town of Vinton), see Roanoke Cnty. v. Reno, No. 00-1949 (D.D.C. Jan. 24, 2001); 5. City of Winchester, Virginia, see City of Winchester v. Reno, No. 00-3073 (D.D.C. June 1, 2001); 6. City of Harrisonburg, Virginia (including Harrisonburg City School Board), see City of Harrisonburg v. Reno, No. 02-289 (D.D.C. Apr. 17, 2002); 7. Rockingham County, Virginia (including Rockingham County School Board and Towns of Bridgewater, Broadway, Dayton, Elkton, Grottoes, Mt. Crawford, and Timberville), see Rockingham Cnty. v. Reno, No. 02-391 (D.D.C. May 24, 2002); 8. Warren County, Virginia (including Warren County School Board and Town of Front Royal), see Warren Cnty. v. Ashcroft, No. 02-1736 (D.D.C. Nov. 26, 2002); 9. Greene County, Virginia (including Greene County School Board and Town of Standardsville), see Greene Cnty. v. Ashcroft, No. 03-1877 (D.D.C. Jan. 19, 2004);

7a 10. Pulaski County, Virginia (including Pulaski
County School Board and Towns of Pulaski and Dublin), see Pulaski Cnty. v. Gonzales, No. 05-1265 (D.D.C. Sept. 27, 2005); 11. Augusta County, Virginia (including Augusta County School Board and Town of Craigsville), see Augusta Cnty. v. Gonzales, No. 05-1885 (D.D.C. Nov. 30, 2005); 12. City of Salem, Virginia, see City of Salem v. Gonzales, No. 06-977 (D.D.C. July 27, 2006); 13. Botetourt County, Virginia (including Botetourt County School Board and Towns of Buchanan, Fincastle, and Troutville), see Botetourt Cnty. v. Gonzales, No. 06-1052 (D.D.C. Aug. 28, 2006); 14. Essex County, Virginia (including Essex County School Board and Town of Tappahannock), see Essex Cnty. v. Gonzales, No. 06-1631 (D.D.C. Jan. 31, 2007); 15. Middlesex County, Virginia (including Middlesex County School Board and Town of Urbanna), see Middlesex Cnty. v. Gonzales, No. 07-1485 (D.D.C. Jan. 7, 2008); 16. Amherst County, Virginia (including Town of Amherst), see Amherst Cnty. v. Mukasey, No. 08-780 (D.D.C. Aug. 13, 2008); 17. Page County, Virginia (including Page County School Board and Towns of Luray, Stanley, and Shenandoah), see Page Cnty. v. Mukasey, No. 08-1113 (D.D.C. Sept. 15, 2008);

8a 18. Washington County, Virginia (including Wash-
ington County School Board and Towns of Abington, Damascus, and Glade Spring), see Washington Cnty. v. Mukasey, No. 08-1112 (D.D.C. Sept. 23, 2008); 19. Northwest Austin Municipal Utility District Number One, Texas, see Northwest Austin Mun. Util. Dist. No. One v. Mukasey, No. 06-1384 (D.D.C. Nov. 3, 2009); 20. City of Kings Mountain, North Carolina, see City of Kings Mountain v. Holder, 746 F. Supp. 2d 46 (D.D.C. Oct. 22, 2010); 21. City of Sandy Springs, Georgia, see City of Sandy Springs v. Holder, No. 10-1502 (D.D.C. Oct. 26, 2010); 22. Jefferson County Drainage District Number Seven, Texas, see Jefferson Cnty. Drainage Dist. No. Seven v. Holder, No. 11-461 (D.D.C. June 6, 2011); 23. Alta Irrigation District, California, see Alta Irrigation Dist. v. Holder, No. 11-758 (D.D.C. July 15, 2011); 24. City of Manassas Park, Virginia, see City of Manassas Park v. Holder, C.A. No. 11-749 (D.D.C. Aug. 3, 2011); 25. Rappahannock County, Virginia (including Rappahannock County School Board and Town of Washington), see Rappahannock Cnty. v. Holder, C.A. No. 11-1123 (D.D.C. Aug. 9, 2011);

9a 26. Bedford County, Virginia (including Bedford
County School Board), see Bedford Cnty. v. Holder, No. 11-499 (D.D.C. Aug. 30, 2011); 27. City of Bedford, Virginia, see City of Bedford v. Holder, No. 11-473 (D.D.C. Aug. 31, 2011); 28. Culpeper County, Virginia (including Culpeper County School Board and Town of Culpeper), see Culpeper Cnty. v. Holder, No. 11-1477 (D.D.C. Oct. 3, 2011); 29. James City County, Virginia (including Williamsburg-James City County School Board), see James City Cnty. v. Holder, No. 11-1425 (D.D.C. Nov. 9, 2011); 30. City of Williamsburg, Virginia, see City of Williamsburg v. Holder, No. 11-1415 (D.D.C. Nov. 28, 2011); 31. King George County, Virginia (including King George County School District), see King George Cnty. v. Holder, No. 11-2164 (D.D.C. April 5, 2012); 32. Prince William County, Virginia (including Prince William County School District and Towns of Dumfries, Haymarket, Occoquan, and Quantico), see Prince William Cnty. v. Holder, No. 12-14 (D.D.C. April 10, 2012); 33. City of Pinson, Alabama, see City of Pinson v. Holder, No. 12-255 (D.D.C. April 20, 2012); 34. Wythe County, Virginia (including Wythe County School Board and Towns of Rural Retreat and

10a Wytheville), see Wythe Cnty. v. Holder, No. 12-719 (D.D.C. June 18, 2012); 35. Grayson County, Virginia (including Grayson County School Board and Towns of Fries, Independence, and Troutdale), see Grayson Cnty. v. Holder, No. 12-718 (D.D.C., July 20, 2012); 36. Merced County, California (including approximately 84 subjurisdictions), see Merced Cnty. v. Holder, No. 12-354 (D.D.C. Aug. 31, 2012); 37. Craig County, Virginia (including Craig County School District and Town of New Castle), see Craig Cnty. v. Holder, No. 12-1179 (D.D.C. Nov. 29, 2012); and 38. Carroll County, Virginia (including Carroll County School District and Town of Hillsville), see Carroll Cnty. v. Holder, No. 12-1166 (D.D.C. Nov. 30, 2012).
Bailout Actions Currently Pending 1. Towns and Townships of Rindge, Millsfield,
Pinkham’s Grant, Stewartstown, Stratford, Benton, Antrim, Boscawen, Newington, and Unity, New Hampshire, see New Hampshire v. Holder, No. 12-1854 (D.D.C.), proposed consent decree filed Dec. 21, 2012; 2. Browns Valley Irrigation District, California, see Browns Valley Irrigation Dist. v. Holder, No. 12-1597 (D.D.C.), proposed consent decree filed Jan. 2, 2013; and

11a 3. City of Wheatland, California, see City of Wheat-
land v. Holder, No. 13-54 (D.D.C.), complaint filed Jan. 14, 2013.

12a
APPENDIX C
1. 42 U.S.C. 1973a provides:
Proceeding to enforce the right to vote (a) Authorization by court for appointment of Federal
observers
Whenever the Attorney General or an aggrieved person institutes a proceeding under any statute to enforce the voting guarantees of the fourteenth or fifteenth amendment in any State or political subdivision the court shall authorize the appointment of Federal observers by the Director of the Office of Personnel Management in accordance with section 1973d1 of this title to serve for such period of time and for such political subdivisions as the court shall determine is appropriate to enforce the voting guarantees of the fourteenth or fifteenth amendment (1) as part of any interlocutory order if the court determines that the appointment of such observers is necessary to enforce such voting guarantees or (2) as part of any final judgment if the court finds that violations of the fourteenth or fifteenth amendment justifying equitable relief have occurred in such State or subdivision: Provided, That the court need not authorize the appointment of observers if any incidents of denial or abridgement of the right to vote on account of race or
1 See References in Text note below. [Reference states: “Section 1973d of this title, referred to in subsec. (a), was repealed by Pub. L. 109–246, § 3(c), July 27, 2006, 120 Stat. 580.”]

13a
color, or in contravention of the voting guarantees set forth in section 1973b(f)(2) of this title (1) have been few in number and have been promptly and effectively corrected by State or local action, (2) the continuing effect of such incidents has been eliminated, and (3) there is no reasonable probability of their recurrence in the future.
(b) Suspension of use of tests and devices which deny or abridge the right to vote
If in a proceeding instituted by the Attorney General or an aggrieved person under any statute to enforce the voting guarantees of the fourteenth or fifteenth amendment in any State or political subdivision the court finds that a test or device has been used for the purpose or with the effect of denying or abridging the right of any citizen of the United States to vote on account of race or color, or in contravention of the voting guarantees set forth in section 1973b(f)(2) of this title, it shall suspend the use of tests and devices in such State or political subdivisions as the court shall determine is appropriate and for such period as it deems necessary.
(c) Retention of jurisdiction to prevent commencement of new devices to deny or abridge the right to vote
If in any proceeding instituted by the Attorney General or an aggrieved person under any statute to enforce the voting guarantees of the fourteenth or fifteenth amendment in any State or political subdivision the court finds that violations of the fourteenth or fifteenth amendment justifying equitable relief have occurred within the territory of such State or political

14a subdivision, the court, in addition to such relief as it may grant, shall retain jurisdiction for such period as it may deem appropriate and during such period no voting qualification or prerequisite to voting or standard, practice, or procedure with respect to voting different from that in force or effect at the time the proceeding was commenced shall be enforced unless and until the court finds that such qualification, prerequisite, standard, practice, or procedure does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color, or in contravention of the voting guarantees set forth in section 1973b(f)(2) of this title: Provided, That such qualification, prerequisite, standard, practice, or procedure may be enforced if the qualification, prerequisite, standard, practice, or procedure has been submitted by the chief legal officer or other appropriate official of such State or subdivision to the Attorney General and the Attorney General has not interposed an objection within sixty days after such submission, except that neither the court’s finding nor the Attorney General’s failure to object shall bar a subsequent action to enjoin enforcement of such qualification, prerequisite, standard, practice, or procedure.

15a
2. 42 U.S.C. 1973b provides in pertinent part:
Suspension of the use of tests or devices in determining eligibility to vote
(a) Action by State or political subdivision for declaratory judgment of no denial or abridgement; threejudge district court; appeal to Supreme Court; retention of jurisdiction by three-judge court
(1) To assure that the right of citizens of the United States to vote is not denied or abridged on account of race or color, no citizen shall be denied the right to vote in any Federal, State, or local election because of his failure to comply with any test or device in any State with respect to which the determinations have been made under the first two sentences of subsection (b) of this section or in any political subdivision of such State (as such subdivision existed on the date such determinations were made with respect to such State), though such determinations were not made with respect to such subdivision as a separate unit, or in any political subdivision with respect to which such determinations have been made as a separate unit, unless the United States District Court for the District of Columbia issues a declaratory judgment under this section. No citizen shall be denied the right to vote in any Federal, State, or local election because of his failure to comply with any test or device in any State with respect to which the determinations have been made under the third sentence of subsection (b) of this section or in any political subdivision of such State (as such subdivision existed on the date such determinations were made with respect to such State), though such determina-

16a tions were not made with respect to such subdivision as a separate unit, or in any political subdivision with respect to which such determinations have been made as a separate unit, unless the United States District Court for the District of Columbia issues a declaratory judgment under this section. A declaratory judgment under this section shall issue only if such court determines that during the ten years preceding the filing of the action, and during the pendency of such action—
(A) no such test or device has been used within such State or political subdivision for the purpose or with the effect of denying or abridging the right to vote on account of race or color or (in the case of a State or subdivision seeking a declaratory judgment under the second sentence of this subsection) in contravention of the guarantees of subsection (f)(2) of this section;
(B) no final judgment of any court of the United States, other than the denial of declaratory judgment under this section, has determined that denials or abridgements of the right to vote on account of race or color have occurred anywhere in the territory of such State or political subdivision or (in the case of a State or subdivision seeking a declaratory judgment under the second sentence of this subsection) that denials or abridgements of the right to vote in contravention of the guarantees of subsection (f)(2) of this section have occurred anywhere in the territory of such State or subdivision and no consent decree, settlement, or agreement has been entered into resulting in any abandonment of a

17a voting practice challenged on such grounds; and no declaratory judgment under this section shall be entered during the pendency of an action commenced before the filing of an action under this section and alleging such denials or abridgements of the right to vote;
(C) no Federal examiners or observers under subchapters I–A to I–C of this chapter have been assigned to such State or political subdivision;
(D) such State or political subdivision and all governmental units within its territory have complied with section 1973c of this title, including compliance with the requirement that no change covered by section 1973c of this title has been enforced without preclearance under section 1973c of this title, and have repealed all changes covered by section 1973c of this title to which the Attorney General has successfully objected or as to which the United States District Court for the District of Columbia has denied a declaratory judgment;
(E) the Attorney General has not interposed any objection (that has not been overturned by a final judgment of a court) and no declaratory judgment has been denied under section 1973c of this title, with respect to any submission by or on behalf of the plaintiff or any governmental unit within its territory under section 1973c of this title, and no such submissions or declaratory judgment actions are pending; and
(F) such State or political subdivision and all governmental units within its territory—

18a (i) have eliminated voting procedures and methods of election which inhibit or dilute equal access to the electoral process; (ii) have engaged in constructive efforts to eliminate intimidation and harassment of persons exercising rights protected under subchapters I–A to I–C of this chapter; and (iii) have engaged in other constructive efforts, such as expanded opportunity for convenient registration and voting for every person of voting age and the appointment of minority persons as election officials throughout the jurisdiction and at all stages of the election and registration process. (2) To assist the court in determining whether to issue a declaratory judgment under this subsection, the plaintiff shall present evidence of minority participation, 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. (3) No declaratory judgment shall issue under this subsection with respect to such State or political subdivision if such plaintiff and governmental units within its territory have, during the period beginning ten years before the date the judgment is issued, engaged in violations of any provision of the Constitution or laws of the United States or any State or political subdivision with respect to discrimination in voting on account of race or color or (in the case of a State or subdivision seeking a declaratory judgment under the second

19a sentence of this subsection) in contravention of the guarantees of subsection (f)(2) of this section unless the plaintiff establishes that any such violations were trivial, were promptly corrected, and were not repeated.
(4) The State or political subdivision bringing such action shall publicize the intended commencement and any proposed settlement of such action in the media serving such State or political subdivision and in appropriate United States post offices. Any aggrieved party may as of right intervene at any stage in such action.
(5) An action pursuant to this subsection shall be heard and determined by a court of three judges in accordance with the provisions of section 2284 of title 28 and any appeal shall lie to the Supreme Court. The court shall retain jurisdiction of any action pursuant to this subsection for ten years after judgment and shall reopen the action upon motion of the Attorney General or any aggrieved person alleging that conduct has occurred which, had that conduct occurred during the ten-year periods referred to in this subsection, would have precluded the issuance of a declaratory judgment under this subsection. The court, upon such reopening, shall vacate the declaratory judgment issued under this section if, after the issuance of such declaratory judgment, a final judgment against the State or subdivision with respect to which such declaratory judgment was issued, or against any governmental unit within that State or subdivision, determines that denials or abridgements of the right to vote on account of race or

20a color have occurred anywhere in the territory of such State or political subdivision or (in the case of a State or subdivision which sought a declaratory judgment under the second sentence of this subsection) that denials or abridgements of the right to vote in contravention of the guarantees of subsection (f)(2) of this section have occurred anywhere in the territory of such State or subdivision, or if, after the issuance of such declaratory judgment, a consent decree, settlement, or agreement has been entered into resulting in any abandonment of a voting practice challenged on such grounds.
(6) If, after two years from the date of the filing of a declaratory judgment under this subsection, no date has been set for a hearing in such action, and that delay has not been the result of an avoidable delay on the part of counsel for any party, the chief judge of the United States District Court for the District of Columbia may request the Judicial Council for the Circuit of the District of Columbia to provide the necessary judicial resources to expedite any action filed under this section. If such resources are unavailable within the circuit, the chief judge shall file a certificate of necessity in accordance with section 292(d) of title 28.
(7) The Congress shall reconsider the provisions of this section at the end of the fifteen-year period following the effective date of the amendments made by the Fannie Lou Hamer, Rosa Parks, Coretta Scott King, César E. Chávez, Barbara C. Jordan, William C. Velásquez, and Dr. Hector P. Garcia Voting Rights Act Reauthorization and Amendments Act of 2006.

21a
(8) The provisions of this section shall expire at the end of the twenty-five-year period following the effective date of the amendments made by the Fannie Lou Hamer, Rosa Parks, Coretta Scott King, César E. Chávez, Barbara C. Jordan, William C. Velásquez, and Dr. Hector P. Garcia Voting Rights Act Reauthorization and Amendments Act of 2006.
(9) Nothing 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. Any aggrieved party may as of right intervene at any stage in such action.
(b) Required factual determinations necessary to allow suspension of compliance with tests and devices; publication in Federal Register
The provisions of subsection (a) of this section shall apply in any State or in any political subdivision of a State which (1) the Attorney General determines maintained on November 1, 1964, any test or device, and with respect to which (2) the Director of the Census determines that less than 50 per centum of the persons of voting age residing therein were registered on November 1, 1964, or that less than 50 per centum of such persons voted in the presidential election of November 1964. On and after August 6, 1970, in addition to any State or political subdivision of a State determined to be subject to subsection (a) of this section pursuant to the previous sentence, the provisions of subsection (a)

22a of this section shall apply in any State or any political subdivision of a State which (i) the Attorney General determines maintained on November 1, 1968, any test or device, and with respect to which (ii) the Director of the Census determines that less than 50 per centum of the persons of voting age residing therein were registered on November 1, 1968, or that less than 50 per centum of such persons voted in the presidential election of November 1968. On and after August 6, 1975, in addition to any State or political subdivision of a State determined to be subject to subsection (a) of this section pursuant to the previous two sentences, the provisions of subsection (a) of this section shall apply in any State or any political subdivision of a State which (i) the Attorney General determines maintained on November 1, 1972, any test or device, and with respect to which (ii) the Director of the Census determines that less than 50 per centum of the citizens of voting age were registered on November 1, 1972, or that less than 50 per centum of such persons voted in the Presidential election of November 1972.
A determination or certification of the Attorney General or of the Director of the Census under this section or under section 1973f or 1973k of this title shall not be reviewable in any court and shall be effective upon publication in the Federal Register.
(c) ‘‘Test or device’’ defined
The phrase ‘‘test or device’’ shall mean any requirement that a person as a prerequisite for voting or registration for voting (1) demonstrate the ability to read, write, understand, or interpret any matter,

23a (2) demonstrate any educational achievement or his knowledge of any particular subject, (3) possess good moral character, or (4) prove his qualifications by the voucher of registered voters or members of any other class.
3. 42 U.S.C. 1973c provides:
Alteration of voting qualifications; procedure and appeal; purpose or effect of diminishing the ability of citizens to elect their preferred candidates
(a) Whenever a State or political subdivision with respect to which the prohibitions set forth in section 1973b(a) of this title based upon determinations made under the first sentence of section 1973b(b) of this title are in effect shall enact or seek to administer any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting different from that in force or effect on November 1, 1964, or whenever a State or political subdivision with respect to which the prohibitions set forth in section 1973b(a) of this title based upon determinations made under the second sentence of section 1973b(b) of this title are in effect shall enact or seek to administer any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting different from that in force or effect on November 1, 1968, or whenever a State or political subdivision with respect to which the prohibitions set forth in section 1973b(a) of this title based upon determinations made under the third sentence of section 1973b(b) of this title are in effect shall enact or seek to administer any

24a voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting different from that in force or effect on November 1, 1972, such State or subdivision may institute an action in the United States District Court for the District of Columbia for a declaratory judgment that such qualification, prerequisite, standard, practice, or procedure neither has the purpose nor will have the effect of denying or abridging the right to vote on account of race or color, or in contravention of the guarantees set forth in section 1973b(f)(2) of this title, and unless and until the court enters such judgment no person shall be denied the right to vote for failure to comply with such qualification, prerequisite, standard, practice, or procedure: Provided, That such qualification, prerequisite, standard, practice, or procedure may be enforced without such proceeding if the qualification, prerequisite, standard, practice, or procedure has been submitted by the chief legal officer or other appropriate official of such State or subdivision to the Attorney General and the Attorney General has not interposed an objection within sixty days after such submission, or upon good cause shown, to facilitate an expedited approval within sixty days after such submission, the Attorney General has affirmatively indicated that such objection will not be made. Neither an affirmative indication by the Attorney General that no objection will be made, nor the Attorney General’s failure to object, nor a declaratory judgment entered under this section shall bar a subsequent action to enjoin enforcement of such qualification, prerequisite, standard, practice, or procedure. In the event the Attorney

25a General affirmatively indicates that no objection will be made within the sixty-day period following receipt of a submission, the Attorney General may reserve the right to reexamine the submission if additional information comes to his attention during the remainder of the sixty-day period which would otherwise require objection in accordance with this section. Any action under this section shall be heard and determined by a court of three judges in accordance with the provisions of section 2284 of title 28 and any appeal shall lie to the Supreme Court.
(b) Any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting that has the purpose of or will have the effect of diminishing the ability of any citizens of the United States on account of race or color, or in contravention of the guarantees set forth in section 1973b(f)(2) of this title, to elect their preferred candidates of choice denies or abridges the right to vote within the meaning of subsection (a) of this section.
(c) The term ‘‘purpose’’ in subsections (a) and (b) of this section shall include any discriminatory purpose.
(d) The purpose of subsection (b) of this section is to protect the ability of such citizens to elect their preferred candidates of choice.

26a 4. 42 U.S.C. 1973f provides:
Use of observers (a) Assignment
Whenever— (1) a court has authorized the appointment of
observers under section 1973a(a) of this title for a political subdivision; or
(2) the Attorney General certifies with respect to any political subdivision named in, or included within the scope of, determinations made under section 1973b(b) of this title, unless a declaratory judgment has been rendered under section 1973b(a) of this title, that—
(A) the Attorney General has received written meritorious complaints from residents, elected officials, or civic participation organizations that efforts to deny or abridge the right to vote under the color of law on account of race or color, or in contravention of the guarantees set forth in section 1973b(f)(2) of this title are likely to occur; or
(B) in the Attorney General’s judgment (considering, among other factors, whether the ratio of nonwhite persons to white persons registered to vote within such subdivision appears to the Attorney General to be reasonably attributable to violations of the 14th or 15th amendment or whether substantial evidence exists that bona fide efforts are being made within such subdivi-

27a sion to comply with the 14th or 15th amendment), the assignment of observers is otherwise necessary to enforce the guarantees of the 14th or 15th amendment; the Director of the Office of Personnel Management shall assign as many observers for such subdivision as the Director may deem appropriate.
(b) Status
Except as provided in subsection (c), such observers shall be assigned, compensated, and separated without regard to the provisions of any statute administered by the Director of the Office of Personnel Management, and their service under subchapters I–A to I–C shall not be considered employment for the purposes of any statute administered by the Director of the Office of Personnel Management, except the provisions of section 7324 of title 5 prohibiting partisan political activity.
(c) Designation
The Director of the Office of Personnel Management is authorized to, after consulting the head of the appropriate department or agency, designate suitable persons in the official service of the United States, with their consent, to serve in these positions.
(d) Authority
Observers shall be authorized to— (1) enter and attend at any place for holding an
election in such subdivision for the purpose of observing whether persons who are entitled to vote are being permitted to vote; and

28a (2) enter and attend at any place for tabulating the votes cast at any election held in such subdivision for the purpose of observing whether votes cast by persons entitled to vote are being properly tabulated.
(e) Investigation and report
Observers shall investigate and report to the Attorney General, and if the appointment of observers has been authorized pursuant to section 1973a(a) of this title, to the court.

 
 No. 12-96 ================================================================
In The
Supreme Court of the United States
---------------------------------  ---------------------------------
SHELBY COUNTY, ALABAMA,
Petitioner, v.
ERIC H. HOLDER, JR., Attorney General, et al.,
Respondents. ---------------------------------  ---------------------------------
On Writ Of Certiorari To The United States Court Of Appeals For The District Of Columbia Circuit
---------------------------------  ---------------------------------
BRIEF OF ARIZONA, GEORGIA, SOUTH CAROLINA, AND SOUTH DAKOTA AS AMICI CURIAE IN SUPPORT OF PETITIONER
---------------------------------  ---------------------------------
THOMAS C. HORNE Arizona Attorney General
DAVID R. COLE Solicitor General Counsel of Record
MICHELE L. FORNEY Assistant Attorney General 1275 W. Washington Phoenix, AZ 85007-2997 (602) 542-8986 (602) 542-8308 (fax) dave.cole@azag.gov Attorneys for Amici Curiae
[Additional Counsel Listed On Inside Cover]
================================================================
COCKLE LAW BRIEF PRINTING CO. (800) 225-6964 OR CALL COLLECT (402) 342-2831

SAM OLENS Attorney General STATE OF GEORGIA 40 Capital Square, SW Atlanta, GA 30334-1300 (404) 656-3300
ALAN WILSON Attorney General STATE OF SOUTH CAROLINA Rembert C. Dennis Office Building P.O. Box 11549 Columbia, SC 29211-1549 (803) 734-3970
MARTY J. JACKLEY Attorney General STATE OF SOUTH DAKOTA 1302 East Highway 14, Suite 1 Pierre, SD 57501-8501 (605) 773-3215

i
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES................................. iii
INTERESTS OF THE AMICI STATES............... 1
SUMMARY OF ARGUMENT .............................. 3
ARGUMENT ........................................................ 5
I. The Decision, Upholding Section 4(b)’s Outdated Coverage Formula and Section 5’s Preclearance Requirement, Is Seriously Flawed and Undermines the Principle of Equal Sovereignty ................................. 5
A. The Court of Appeals Erred in Finding that Congress Had Adequate Data to Justify the Continued Use of the Section 4(b) Formula ........................... 7
B. Current Conditions Do Not Justify the VRA’s Departure from the Fundamental Principle of Equal Sovereignty Among the States ..................... 17
1. Arizona and Nevada Are Strikingly Similar in Population Makeup, Voter Registration, and Voter Turnout, but Are Treated Differently by the VRA ............................ 17
2. Several States Adopted VoterIdentification Laws but Experienced Dramatically Different Treatment Under the VRA ............................... 30

ii
TABLE OF CONTENTS – Continued Page
C. The Preclearance Requirements Are Arbitrary and Burdensome ................. 24
1. Arizona’s Budgetary Decision to Close Several Motor Vehicle Department Branches Required Preclearance ......................................... 25
2. The DOJ Denied Georgia County Expedited Preclearance for Temporary Change of Venue Following Construction Delays ....................... 26
D. The Prospect of Bailout for the Covered States Is Illusory ......................... 27
CONCLUSION..................................................... 31

iii
TABLE OF AUTHORITIES Page
CASES
City of Tucson v. Arizona, 273 P.3d 624 (Ariz. 2012) ........................................................................29
Common Cause/Georgia, League of Women Voters of Ga., Inc. v. Billups, 439 F. Supp. 2d 1294 (N.D. Ga. 2006)...............................................21
Crawford v. Marion County Election Bd., 553 U.S. 181 (2008)....................................................2, 22
Gonzalez v. Arizona, 624 F.3d 1162 (9th Cir. 2010) ........................................................................21
Gonzalez v. Arizona, 677 F.3d 383 (9th Cir. 2012), cert. granted on other grounds sub nom. Arizona v. Inter Tribal Council of Ariz., Inc., 133 S. Ct. 476 (2012) (No. 12-71) ...................21
Nw. Austin Mun. Util. Dist. No. One v. Holder, 557 U.S. 193 (2009) ......................................... passim
Shelby Cnty. v. Holder, 811 F. Supp. 2d 424 (D.D.C. 2011).......................................................6, 27
South Carolina v. Katzenbach, 383 U.S. 301 (1966) .........................................................4, 6, 11, 16
South Carolina v. U.S., ___ F. Supp. 2d ___, 2012 WL 4814094 (D.D.C. 2012) ......................22, 23
Strode v. Sullivan, 236 P.2d 48 (Ariz. 1951) .............29
United States v. Louisiana, 363 U.S. 1 (1960).............6

iv
TABLE OF AUTHORITIES – Continued Page
CONSTITUTIONAL PROVISIONS U.S. Const. amend. XV.................................................6 U.S. Const. amend. XV, § 2 ..........................................5
STATUTES 42 U.S.C. § 1973 ...........................................................2 42 U.S.C. § 1973b .....................................................1, 8 42 U.S.C. § 1973b(a)(1)...............................................29 42 U.S.C. § 1973b(a)(5).........................................28, 29 42 U.S.C. § 1973b(c) .....................................................8 42 U.S.C. § 1973b(f)(3) .................................................9 42 U.S.C. § 1973c ................................................ passim 42 U.S.C. § 1983 ...........................................................1 42 U.S.C. § 12132 .........................................................1 Ala. Code § 17-9-30 (2012)..........................................21 Ariz. Rev. Stat. § 16-122.............................................25 Nev. Rev. Stat. § 293.2699 (2003) ..............................19 Nev. Rev. Stat. § 293C.282 (1997) .............................19 Nev. Rev. Stat. § 293.296 (1973) ................................19

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TABLE OF AUTHORITIES – Continued Page
OTHER AUTHORITIES
1 U.S. Census of Population: 1960, Characteristics of the Population (1964) ...................................17
152 Cong. Rec. S7981 (daily ed. July 20, 2006) (statement of Sen. Cornyn)...............................13, 16
152 Cong. Rec. S7983 (daily ed. July 20, 2006) (statement of Sen. Chambliss) ...............................15
152 Cong. Rec. S7986-87 (daily ed. July 20, 2006) (statement of Sen. Sessions).........................15
152 Cong. Rec. S7990 (daily ed. July 20, 2006) (statement of Sen. Coburn).....................................13
152 Cong. Rec. S8012 (daily ed. July 20, 2006).........12
28 C.F.R. § 51.13(a) ....................................................24
28 C.F.R. § 51.13(b) ....................................................24
28 C.F.R. § 51.13(d) ....................................................24
Census 2000 Brief on Population Change and Distribution: 1990-2000, http://www.census.gov/ prod/2001pubs/c2kbr01-2.pdf .................................18
Census 2000 Brief on the Hispanic Population, http://www.census.gov/prod/2001pubs/c2kbr013.pdf .........................................................................18
Census 2010 Brief on Population Change and Distribution: 2000 to 2010, http://www.census. gov/prod/cen2010/briefs/c2010br-01.pdf...........17, 18
Census 2010 Brief on the Hispanic Population, http://www.census.gov/prod/cen2010/briefs/ c2010br-04.pdf ......................................................... 18

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TABLE OF AUTHORITIES – Continued
Page
Dave Leip’s Atlas of U.S. Presidential Elections, http://uselectionatlas.org/RESULTS/ ...........8, 10, 19
Department of Justice, Section 4 of the Voting Rights Act, http://www.justice.gov/crt/about/vot/ misc/sec_4.php ......................................................... 10
Department of Justice, Section 5 Covered Jurisdictions, http://www.justice.gov/crt/about/ vot/sec_5/covered.php........................................10, 11
Determination of the Attorney General Pursuant to Section 4(b)(1) of the Voting Rights Act of 1965, 30 Fed. Reg. 9897 (1965) ......................8
Determination Regarding Literacy Tests, 35 Fed. Reg. 12354 (1970)..............................................8
Extension of the Voting Rights Act of 1965: Hearing Before the S. Subcomm. on Constitutional Rights of the Comm. on the Judiciary, 94th Cong. (April 30, 1975) (Testimony of Sen. Goldwater).....................................................9
H.R. Rep. No. 109-478 (2006).....................................13
S. Rep. No. 109-295 (2006) .......................12, 14, 15, 20
The Continuing Need for Section 5 Preclearance: Hearing Before the Senate Comm. on the Judiciary, 109th Cong., 2d Sess. (May 16, 2006) ........................................................................14
U.S. Census Bureau, Voting and Registration in the Election of November 2000, http:// www.census.gov/hhes/www/socdemo/voting/ publications/p20/2000/tab04a.pdf.....................18, 19

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TABLE OF AUTHORITIES – Continued
Page
U.S. Census Bureau, Voting and Registration in the Election of November 2004, http:// www.census.gov/hhes/www/socdemo/voting/ publications/p20/2004/tables.html ........................19
Voter Identification Requirements, National Conference of State Legislatures, http:// www.ncsl.org/legislatures-elections/elections/ voter-id.aspx......................................................20, 21
Voting Rights Act: An Examination of the Scope of Criteria for Coverage Under the Special Provisions of the Act, 109th Cong., 1st Sess. (Oct. 20, 2005) .........................................................14
Voting Rights Act: Hearing Before the Subcomm. on the Constitution of the House Committee on the Judiciary, 109th Cong., 2d Sess. (May 4, 2006) .................................................14

1
INTERESTS OF THE AMICI STATES
The Voting Rights Act (“VRA” or “Act”) created two different classifications of States: covered and uncovered. Section 5 of the VRA, 42 U.S.C. § 1973c, requires Alabama, Alaska, Arizona,* Georgia,* Louisiana, Mississippi, South Carolina,* Texas, and Virginia (and every sub-jurisdiction within those States), and portions of California, Florida, Michigan, New Hampshire, New York, North Carolina, and South Dakota* (collectively “Covered Jurisdictions”), based on the formula provided in Section 4(b) of the VRA, 42 U.S.C. § 1973b, to seek approval of all statutory or procedural changes that affect voting before implementing or enforcing the changes. This Court has recognized that the Act imposes burdens on Covered Jurisdictions and “differentiates between the States” in a way that departs from the fundamental principle of equal sovereignty among States. Nw. Austin Mun. Util. Dist. No. One v. Holder, 557 U.S. 193, 203 (2009). The amici States (*), which are all Covered Jurisdictions substantially burdened by the VRA, have a direct and compelling interest in having this Court evaluate whether the court of appeals correctly determined that the VRA’s “severe remedy of preclearance remain[s] ‘congruent and proportional.’ ” (Pet. App. at 62a.)
Contrary to other anti-discrimination statutes, such as the Civil Rights Act of 1964, 42 U.S.C. § 1983, and the Americans with Disabilities Act, 42 U.S.C. § 12132, Section 5 of the VRA shifts the burden of proof to the Covered Jurisdictions to seek federal

2
approval before enforcing any statutory or procedural change affecting voting and to demonstrate that the proposed voting change will not have a discriminatory effect. On the other hand, Section 2 of the VRA, 42 U.S.C. § 1973, provides more customary relief, in that a plaintiff who alleges that he or she has been the victim of some form of voting discrimination may file a lawsuit against the offending jurisdiction. Section 2 applies to all of the States equally, as well as any of the sub-jurisdictions within the States. However, because obtaining preclearance does not protect a Covered Jurisdiction from litigation under Section 2, Covered Jurisdictions alone bear the burden of Section 5 preclearance without any concomitant benefit.
Since Northwest Austin, the “federalism costs” associated with Section 5, 557 U.S. at 202, have only continued to increase while the statute’s benefits have all but vanished. In particular, the Department of Justice (“DOJ”) has interpreted Section 5 to force the Covered Jurisdictions to spend millions of dollars and thousands of attorney hours to preclear an everexpanding array of laws. The most vivid example comes from voter-identification laws: Indiana’s sovereign policymakers are free to enact such requirements, see Crawford v. Marion County Election Bd., 553 U.S. 181 (2008), but as a result of DOJ’s administrative fiat, the equally sovereign policymakers in Covered Jurisdictions are not, see DOJ File Nos. 2011-2775 (Texas) and 2011-2495 (South Carolina).
Section 5 has served a noble purpose, but its remedy is no longer justified by the decades-old

3
coverage formula. Congress has refused to amend the statute after this Court identified its infirmities in Northwest Austin and it seems unlikely that Congress will reconsider this issue before the current iteration of the VRA approaches expiration in 2031. Meanwhile, the federal government will continue to treat amici States and other Covered Jurisdictions as unequal sovereigns. The amici States urge this Court to overturn the coverage formula of Section 4(b) and the preclearance obligation of Section 5 because those provisions are no longer congruent and proportional to the current state of voter rights nationwide, yet impose costly and time-consuming burdens on an arbitrary group of states and localities without any reference to current conditions in those jurisdictions.
---------------------------------  ---------------------------------
SUMMARY OF ARGUMENT
In Northwest Austin, the Court noted that Section 5’s departure from traditional notions of equal sovereignty enjoyed by all of the fifty states “requires a showing that a statute’s disparate geographic coverage is sufficiently related to the problem that it targets.” 557 U.S. at 203. But when Congress reauthorized Section 5 of the VRA in 2006, it used the same coverage formula as previous enactments and failed to examine the current status of noncovered jurisdictions. As the Court noted, “[t]he statute’s coverage formula is based on data that is now more than 35 years old, and there is considerable evidence that it fails to account for current political

4
conditions.” Id. The Court should declare the 2006 reauthorization of the VRA is unconstitutional because its antiquated formula to determine which states are covered is neither congruent nor proportional to the harms that exist in the Covered States.
Section 5 applies arbitrarily to the Covered Jurisdictions. No Covered Jurisdiction uses discriminatory tests or devices, and many have higher voter turnout or lower disparity in minority voter turnout, than numerous uncovered jurisdictions. The Covered States therefore are denied the fundamental principles of equal sovereignty and equal footing. Treating States differently no longer serves the Act’s purpose of eradicating voting discrimination for all United States citizens.1 Section 5 was an important and necessary part of the effort to end voter discrimination in this country, but has now outlived its purpose. The current enactment of Section 5 under the preexisting coverage formula of Section 4(b) is unconstitutional because it is not appropriately tailored to correct any current voting discrimination that may exist anywhere in the country.
---------------------------------  ---------------------------------
1 “The Voting Rights Act of 1965 reflects Congress’ firm intention to rid the country of racial discrimination in voting.” South Carolina v. Katzenbach, 383 U.S. 301, 315 (1966).

5
ARGUMENT
I. The Decision, Upholding Section 4(b)’s Outdated Coverage Formula and Section 5’s Preclearance Requirement, Is Seriously Flawed and Undermines the Principle of Equal Sovereignty.
The court of appeals acknowledged that Congress did not make a finding that “racial discrimination in voting was ‘concentrated in the jurisdictions singled out for preclearance’ ” when Congress reauthorized Section 5 of the VRA in 2006 under the pre-existing coverage formula of Section 4(b) of the VRA. (Pet. App. at 53a (quoting Nw. Austin, 557 U.S. at 203).) It nonetheless upheld Congress’s continued use of Section 4(b)’s formula by speculating that lack of evidence of discriminatory practices in the Covered Jurisdictions arose from Section 5’s deterrent effect (id. at 42a-44a) and noting that bailout ensures that “section 5 covers only those jurisdictions with the worst records of racial discrimination in voting” (id. at 57a). The court’s analysis is seriously flawed for two reasons: (1) the obsolete formula is not linked to current conditions and therefore intrudes on the Covered States’ sovereignty, and (2) the supposed remedy of bailout is illusory. The Court should overturn Sections 4(b) and 5 of the VRA because those sections of the law unjustifiably intrude on the Covered States’ sovereignty and impose significant and unwarranted burdens on Covered Jurisdictions.
Congress passed the VRA under the authority of Section 2 of the Fifteenth Amendment to enact

6
“appropriate” measures to effectuate the constitutional prohibition against racial discrimination in voting. Katzenbach, 383 U.S. at 308. Section 5 goes well beyond the Fifteenth Amendment’s prohibition against racial discrimination in voting by “plac[ing] the burden on covered jurisdictions to show their voting changes are nondiscriminatory before those changes can be put into effect.” Shelby Cnty. v. Holder, 811 F. Supp. 2d 424, 431 (D.D.C. 2011). The VRA thus treats some States differently “despite [the Court’s] historic tradition that all the States enjoy ‘equal sovereignty.’ ” Nw. Austin, 557 U.S. at 203 (quoting United States v. Louisiana, 363 U.S. 1, 16 (1960)). But Section 5’s “departure from the fundamental principle of equal sovereignty requires a showing that a statute’s disparate geographic coverage is sufficiently related to the problem that it targets.” Id.
This Court put Congress on notice regarding Section 5’s constitutional infirmities: “The evil that § 5 is meant to address may no longer be concentrated in the jurisdictions singled out for preclearance. The statute’s coverage formula is based on data that is now more than 35 years old, and there is considerable evidence that it fails to account for current political conditions.” Id. at 203; see also id. at 216 (Thomas, J., concurring in judgment in part and dissenting in part) (“The Court quite properly alerts Congress that § 5 tests the outer boundaries of its Fifteenth Amendment enforcement authority and may not be constitutional.”). The Court further

7
emphasized that “[t]he Act’s preclearance requirements and its coverage formula raise serious constitutional questions.” Id. at 204. But the Court remained “keenly mindful of [its] institutional role,” id. at 204, resolved the case on non-constitutional grounds, and charged the political branches with fixing both the VRA’s antiquated coverage formula and the blunt instrument of preclearance, id. at 20506.
But Congress has done nothing since Northwest Austin, and the Covered Jurisdictions continue to labor under a coverage formula that is now forty years old. And the DOJ has exacerbated the VRA’s federalism costs by broadening its interpretation of Section 5 and denying preclearance to an everwidening array of sovereign state prerogatives. See § I(B)(1) infra.
A. The Court of Appeals Erred in Finding that Congress Had Adequate Data to Justify the Continued Use of the Section 4(b) Formula.
The VRA requires a jurisdiction to comply with the preclearance obligations if it satisfied two conditions. First, the jurisdiction must have used a forbidden test or device2 to determine voter eligibility in
2 The VRA defines “test or device” as “any requirement that a person as a prerequisite for voting or registration for voting (1) demonstrate the ability to read, write, understand, or interpret
(Continued on following page)

8
1964, 1968, or 1972. 42 U.S.C. § 1973b. Second, the jurisdiction must have had – again in 1964, 1968, or 1972 – less than fifty percent of the citizens of voting age registered to vote, or less than fifty percent of the citizens in the jurisdiction voting in the then-most recent presidential election. 42 U.S.C. § 1973c.
Because the Act references specific years, some States, such as Delaware, remain uncovered even though they used a test or device prohibited by Section 4(c) in both 1964 and 1968. See Determination of the Attorney General Pursuant to Section 4(b)(1) of the Voting Rights Act of 1965, 30 Fed. Reg. 9897 (1965); Determination Regarding Literacy Tests, 35 Fed. Reg. 12354 (1970); Dave Leip’s Atlas of U.S. Presidential Elections, http://uselectionatlas.org/ RESULTS/ (follow “1996” hyperlink; then follow “%VAP M” hyperlink). Because voter registration fell below fifty percent after 1972 rather than during that year, Delaware need not seek preclearance for its laws. Id. In contrast, Arizona was not using a test or device in 1975, when Congress amended the Act to add language minorities to the coverage formula.3 See
any matter, (2) demonstrate any educational achievement or his knowledge of any particular subject, (3) possess good moral character, or (4) prove his qualifications by the voucher of registered voters or members of any other class.” 42 U.S.C. § 1973b(c).
3 Congress expanded the definition of “test or device” to include the provision of English-only voting materials in circumstances in which the census data shows that more than five
(Continued on following page)

9
Extension of the Voting Rights Act of 1965: Hearing Before the S. Subcomm. on Constitutional Rights of the Comm. on the Judiciary, 94th Cong. (April 30, 1975) (Testimony of Sen. Goldwater, explaining that Arizona did not use English-only ballots in 1974 or thereafter). But because Arizona did not include Spanish in its ballots in 1964, 1968, and 1972, it became and remains a Covered Jurisdiction. These distinctions between coequal sovereigns cannot be justified on the basis of a formula that is outdated on its face.
Because Congress never intended the preclearance requirements to be permanent, fixing the determination on a then-recent presidential election year was logical when it originally enacted the VRA. Decades later, however, the facts no longer support that reasoning. No jurisdiction, covered or uncovered, currently uses a test or device, and Covered Jurisdictions are no more likely than uncovered jurisdictions to have low voter turnout. In eighteen of the forty-one States that are not covered jurisdictions in their entirety, the percentage of voting age persons who voted was less than fifty percent during one or more presidential elections since the 1982 amendment to the VRA: Arkansas (1988, 1996, 2000), California (1984, 1988, 1992, 1996, 2000), Delaware (1996), Florida (1984, 1988, 1996, 2000), Hawaii (1984, 1988, 1992, 1996, 2000, 2004, 2008), Illinois (1996), Indiana
percent of the voting age citizens are members of a single language minority. 42 U.S.C. § 1973b(f )(3).

10
(1996, 2000), Kentucky (1988, 1996), Maryland (1988, 1996), Nevada (1984, 1988, 1996, 2000), New Mexico (1988, 1996, 2000), New York (1988, 1996, 2000), North Carolina (1984, 1988, 1996, 2000), Oklahoma (1988, 1996, 2000), Pennsylvania (1996), Tennessee (1984, 1988, 1996, 2000), Utah (1996), and West Virginia (1988, 1996, 2000). See Dave Leip’s Atlas, supra (select applicable election year on left panel and then select “%VAP M”). Eleven of these states have never been partially or fully covered jurisdictions: Arkansas, Delaware, Illinois, Indiana, Kentucky, Maryland, Nevada, Pennsylvania, Tennessee, Utah, and West Virginia. Compare Department of Justice, Section 5 Covered Jurisdictions, http:// www.justice.gov/crt/about/vot/sec_5/covered.php (last visited December 21, 2012) with Department of Justice, Section 4 of the Voting Rights Act, http:// www.justice.gov/crt/about/vot/misc/sec_4.php (last visited December 21, 2012).
Congress made no findings concerning these issues when it reauthorized the Act in 2006. This is because Congress did not engage in in-depth deliberations regarding the coverage formula.
This Court detailed the congressional deliberations that went into the original enactment of the VRA:
Before enacting the measure, Congress explored with great care the problem of racial discrimination in voting. The House and Senate Committees on the Judiciary each held hearings for nine days and received

11
testimony from a total of 67 witnesses. More than three full days were consumed discussing the bill on the floor of the House, while the debate in the Senate covered 26 days in all.
Katzenbach, 383 U.S. at 308-09.
In contrast, Congress reauthorized the VRA in 2006 on an expedited basis and without careful deliberation concerning the formula used to determine whether a jurisdiction should be covered by the Act. Senators John Cornyn4 and Tom Coburn,5 members of the Senate Judiciary Committee, explained their “significant reservations” about this rush to renew:
Those concerns can generally be categorized as follows: (1) the record of evidence does not appear to reasonably underscore the decision to simply reauthorize the existing Section 5 coverage formula – a formula that is based on 33 to 41 year old data, and (2) the seemingly rushed, somewhat incomplete legislative process involved in passing the legislation prevented the full consideration of numerous improvements. . . . We also conclude that it would have been beneficial if
4 Senator Cornyn represents Texas, a Covered Jurisdiction. See Department of Justice, Section 5 Covered Jurisdictions, http://www.justice.gov/crt/about/vot/sec_5/covered.php (last visited December 21, 2012).
5 Senator Coburn represents Oklahoma, an uncovered jurisdiction. Id.

12
the Section 4 coverage formula had been updated in order to adhere to constitutional requirements. . . .
S. Rep. No. 109-295 at 25-26 (2006). The Senators continued by stating that the formula should be updated to “reflect the problems where they really exist and where the record demonstrates some justification for the assertion of Federal power and intrusion into the local and State electoral processes,” but noted that Congress did not take the time to have “a full discussion of ways to improve the Act to ensure its important provisions were narrowly tailored and applied in a congruent and proportional way.” Id. at 33-34. After the Report was submitted and the bill was sent to the Senate floor, the Senate passed it unanimously the very next day with only a brief debate. 152 Cong. Rec. S8012 (daily ed. July 20, 2006). However, the Senate Report itself notes that it was not provided, even in draft form, to members of the Senate before the floor debate. S. Rep. No. 109295 at 55 (2006).
During the Senate debate, Senator Coburn again voiced his concerns with the rush to renew the VRA:
My point is that it is unfortunate that we insisted on doing this on an expedited basis when the act does not expire for a year. . . . Because of the political nature of this bill and the fear of being improperly classified as “racist,” the bill was crafted and virtually passed before any Senator properly understood any of the major changes. For example, the bill that passed out of committee

13
included a finding section before any hearings were held. No changes to those findings were made.
152 Cong. Rec. S7990 (daily ed. July 20, 2006) (statement of Sen. Coburn). Senator Cornyn echoed this sentiment, opining that the hurried process “prohibited the kind of debate and discussion and perhaps amendment process that might have been helpful to protect the act against future legal challenges.” 152 Cong. Rec. S7981 (daily ed. July 20, 2006) (statement of Sen. Cornyn).
Congress expressed the rationale for renewing the VRA with the laudable and necessary intention of protecting the voting rights of all citizens. See H.R. Rep. No. 109-478 at 6 (2006). But neither the House nor the Senate seriously considered modernizing the coverage formula to reflect current circumstances throughout the country.
The House Judiciary Committee, in fact, emphasized the strides made in the Covered Jurisdictions and did not discuss at any length the similar needs in the uncovered jurisdictions. The Committee noted the results from the previous incarnations of the VRA and summarized its findings that substantial discrimination continued to exist in 2006 in the Covered Jurisdictions. Id. at 25. The Committee referenced limited anecdotal evidence that allegedly justified continuing preclearance obligations for some of the Covered Jurisdictions, but failed to include any evidence in its findings concerning the rights of voters

14
in uncovered jurisdictions. The House Report contains no findings regarding the non-covered States’ population changes, voter registration and turnout, or record of minority individuals elected. See Voting Rights Act: An Examination of the Scope of Criteria for Coverage Under the Special Provisions of the Act, 109th Cong., 1st Sess., at 92 (Oct. 20, 2005) (statement of Hebert). Moreover, testimony showed that “most seem to agree that [the formula] is outdated” and that “this is an area that Congress should give serious consideration and study to.” Id. Nonetheless, the issue was never “addressed in any detail in the [Senate] hearings or in the House” and “little evidence in the [legislative] record reexamines whether systematic differences exist between the currently covered and non-covered jurisdictions.” The Continuing Need for Section 5 Preclearance: Hearing Before the Senate Comm. on the Judiciary, 109th Cong., 2d Sess., at 200-01 (May 16, 2006) (testimony of Pildes); see also Voting Rights Act: Hearing Before the Subcomm. on the Constitution of the House Committee on the Judiciary, 109th Cong., 2d Sess., at 21-22 (May 4, 2006) (testimony of Clegg) (“[V]ery little if any evidence compares covered jurisdictions to noncovered jurisdictions, and what comparisons there are undermine the bill.”).
Likewise, the Senate Judiciary Committee Report barely examined the history or current record of voting discrimination in the uncovered jurisdictions. See generally S. Rep. No. 109-295 (2006). The nearly 300 pages of appendices to the Report included (1)

15
summaries of the reported cases or settlements finding discrimination against voters in the Covered Jurisdictions and the uncovered jurisdictions; (2) a summary of the evidence gathered by the House and Senate concerning voting discrimination; and (3) a discussion of the lawsuits or enforcement actions, statistics, and anecdotal evidence for thirty-five of the fifty states. Id. at 65–363. All of the Covered Jurisdictions were represented by pages of discussion, while some of the uncovered States, such as Nebraska and Tennessee, had only single paragraphs of anecdotal evidence presented. The Report and its appendices included no evidence regarding Arkansas, Connecticut, Delaware, Hawaii, Idaho, Iowa, Kansas, Maine, Nevada, New Hampshire, North Dakota, Oregon, Utah, Vermont, or West Virginia. The absence of evidence does not compel the conclusion that there were no instances of voter discrimination in the listed states, but fortifies the claim that the Senate failed to collect and incorporate such evidence into its report.
Once the bill reached the floor, the Senate quickly passed it without engaging in meaningful debate regarding the outdated formula. Several Senators expressed concern, but recommended passage of the bill nonetheless. 152 Cong. Rec. S7983 (daily ed. July 20, 2006) (statement of Sen. Saxby Chambliss discussing some hesitation about leaving unaddressed the issue of modernizing the formula); 152 Cong. Rec. S7986-87 (daily ed. July 20, 2006) (statement of Sen. Jefferson Sessions discussing the significant progress that Alabama had made in eliminating voting

16
discrimination while noting that the same could not be said of fourteen other jurisdictions that are not covered by Section 5 and noting that he “would have expected Congress” to take action by modernizing Section 5); 152 Cong. Rec. S7981 (daily ed. July 20, 2006) (statement of Sen. Cornyn expressing a desire that Congress focus on “places where the problems really do exist and where the record demonstrates with some justification for the assertion of Federal power and intrusion into the local and State electoral processes”).
Congress did not explore the problem of voting discrimination throughout the entire country, and therefore failed to demonstrate the “great care” that the Katzenbach Court required as justification for the “uncommon exercise of congressional power” contained in the 1965 version of the VRA, power that was only justified because of the “exceptional conditions” and “unique circumstances” present in 1965.
In addition, the successive reauthorizations of the VRA have rendered the notion of its enactment as a temporary solution to an extraordinary problem a misnomer. Congress originally enacted the VRA for five years in 1965, renewed it subsequently in 1970 (for five years), then in 1975 (for seven years), then in 1982 (for twenty-five years), and again in 2006 (for twenty-five years). Nw. Austin, 557 U.S. at 200. If the Court does not strike down the coverage formula now, the amici States will very likely continue to be unequal sovereigns until at least 2031, despite an utter lack of evidence that such treatment is justified.

17
B. Current Conditions Do Not Justify the VRA’s Departure from the Fundamental Principle of Equal Sovereignty Among the States.
When the VRA was initially enacted in 1965, Congress found that there was significant evidence of voting discrimination in the southern States. But the United States is a different country than it was fortyseven years ago. According to the U.S. Census Bureau, in 1960, there were approximately 183 million people in the country; in 2010, there were 308.7 million people – a 68% increase. Compare 1 U.S. Census of Population: 1960, Characteristics of the Population, at xvii (1964), with Census 2010 Brief on Population Change and Distribution: 2000 to 2010 at 1, http://www.census.gov/prod/cen2010/briefs/c2010br01.pdf (last visited December 21, 2012). Certain regions have grown quickly while others have grown much more slowly. Id. As discussed below, these changes in the States’ respective populations have significantly changed the picture regarding minority representation as voters and elected officials. Congress failed to analyze or even recognize these shifts, which leaves the VRA even further out-of-step with the current circumstances in this country.
1. Arizona and Nevada Are Strikingly Similar in Population Makeup, Voter Registration, and Voter Turnout, but Are Treated Differently by the VRA.
According to the 2000 and 2010 censuses, Nevada is by far the fastest growing State in the country,

18
while Arizona is the second fastest. Census 2000 Brief on Population Change and Distribution: 1990-2000 at 3, http://www.census.gov/prod/2001pubs/c2kbr01-2. pdf; Census 2010 Brief on Population Change and Distribution: 2000 to 2010 at 2, http://www. census.gov/prod/cen2010/briefs/c2010br-01.pdf. Nevada’s Hispanic population more than doubled in the last twenty years, increasing from 10.4% of the population to 26.5%. Compare Census 2000 Brief on the Hispanic Population at 4, http://www.census.gov/ prod/2001pubs/c2kbr01-3.pdf with Census 2010 Brief on the Hispanic Population at 6, http://www.census. gov/prod/cen2010/briefs/c2010br-04.pdf. During the same time period, Arizona’s Hispanic population grew from 18.8% to 29.6%. Compare Census 2000 Brief on the Hispanic Population at 4, with Census 2010 Brief on the Hispanic Population at 6.
The voting registration and turnout records for Arizona and Nevada are also similar. During the 2000 election, 53.3% of Arizona’s total citizenry were registered voters and 46.7% voted, and in Nevada 52.3% registered and 46.5% voted. See U.S. Census Bureau, Voting and Registration in the Election of November 2000, http://www.census.gov/hhes/www/ socdemo/voting/publications/p20/2000/tab04a.pdf (last visited December 21, 2012). But a smaller percentage of Nevada’s Hispanic population than Arizona’s Hispanic population participated in the voting process. Id. In Arizona, 33.4% of its Hispanic population registered to vote and 27.1% voted; while in Nevada,

19
23.9% of its population registered and only 20.4% voted. Id.
In 2004, Arizona’s record showed that 60.3% of the total population registered and 54.3% voted. See U.S. Census Bureau, Voting and Registration in the Election of November 2004, http://www.census.gov/ hhes/www/socdemo/voting/publications/p20/2004/tables. html (follow “Detailed Tables” hyperlink; then follow Table 4a “XLS” hyperlink). The Arizona Hispanic populations of total registered voters and those actually voting were 30.5% and 25.5%, respectively. Id. Nevada, on the other hand, had 56.8% of its entire population registered, with 51.3% actually voting. Id. The Nevada Hispanic population’s numbers were 27.6% and 23.8%, respectively. Id.
In the 1972 election, only 49.5% of Nevada’s voting age residents voted. (See Dave Leip’s Atlas, supra (follow “1972” hyperlink; then follow “%VAP” hyperlink)). Also, none of Nevada’s current laws protecting non-English-speaking voters had been enacted. (See Nev. Rev. Stat. § 293.2699 (added 2003); Nev. Rev. Stat. § 293.296 (added 1973); Nev. Rev. Stat. § 293C.282 (added 1997).) In spite of these facts, Arizona is a Covered Jurisdiction while Nevada has never been covered.
Despite the similar populations, a smaller percentage of Hispanic voters in Nevada are voting than in Arizona. In the Senate Judiciary Committee Report, there were only two pieces of anecdotal evidence regarding possible voting discrimination in Nevada,

20
but both involved discrimination against Hispanic voters. S. Rep. No. 109-295 at 277 (summarizing anecdotal evidence that Hispanics have been told they need to speak English or have a driver’s license in order to vote and that voter registration forms for some Hispanics were found in dumpsters and not submitted). Congress made no findings concerning the number of minorities elected to office in Nevada or the possibility of racial polarization in its elections. This lack of justification by Congress for the different treatment of Arizona and Nevada, despite the stark similarities in their current populations and voter turnout records, is evidence that the VRA’s formula is neither congruent with, nor proportional to, the goal of eliminating discrimination in voting. Further, Congress’s failure to take into account these similar statistics shows that its decision to continue using the outdated coverage formula is arbitrary.
2. Several States Adopted VoterIdentification Laws but Experienced Dramatically Different Treatment Under the VRA.
Thirty states presently have laws in place that may require voters to show identification at the polls in November. Voter Identification Requirements, National Conference of State Legislatures, http:// www.ncsl.org/legislatures-elections/elections/voter-id. aspx (last visited December 21, 2012). Whether the laws may be effective depends greatly on whether the jurisdiction is covered or not. Since 2001, nearly 1,000

21
bills have been introduced in 46 states. Id. Twentyone states passed major legislation between 2003 and 2011. Id. Alabama, Colorado, Montana, North Dakota, and South Dakota passed new voter identification laws in 2003; Alabama had to request preclearance (id.), which DOJ granted on August 15, 2003 (DOJ File Nos. 2003-2245; 2003-3434).6 In 2004, Arizona voters passed a voter identification law. Gonzalez v. Arizona, 624 F.3d 1162, 1169 (9th Cir. 2010) (en banc). The DOJ precleared Arizona’s law.7 See DOJ File No. 2004-5004. In 2005, Indiana, New Mexico, and Washington passed new voter identification laws, while Georgia passed legislation to strengthen its existing voter identification law. See Voter Identification Requirements, supra. Georgia had to request preclearance, while the other States did not. The DOJ precleared Georgia’s law on August 26, 2005. See Common Cause/Georgia, League of Women Voters of Ga., Inc. v. Billups, 439 F. Supp. 2d 1294, 1303 (N.D. Ga. 2006).
6 Alabama has enacted a new voter identification law that has not yet been submitted for preclearance and which will not take effect until 2014. Ala. Code § 17-9-30 (2012); see also Voter Identification Requirements, supra, at table 1, n.1.
7 A group of plaintiffs challenged Arizona’s voter identification law under Section 2 of the VRA, among other claims. Gonzalez v. Arizona, 677 F.3d 383, 405 (9th Cir. 2012), cert. granted on other grounds sub nom. Arizona v. Inter Tribal Council of Ariz., Inc., 133 S. Ct. 476 (2012) (No. 12-71). The Ninth Circuit Court of Appeals, upon rehearing en banc, affirmed the district court’s denial of the VRA claim. Id. at 407. This Court granted certiorari on a question of preemption.

22
Indiana enacted a law providing that voters who were unable to produce photo identification on election day could cast a provisional ballot that would be counted only if the voter produced an appropriate affidavit or produced photo identification before the court clerk within ten days following the election. Crawford, 553 U.S. at 185-86. Because Indiana is not covered by Section 5, it did not have to seek preclearance. This Court upheld the facial validity of Indiana’s law, stating that the Court could not “conclude that the statute imposes ‘excessively burdensome requirements’ on any class of voters.” Id. at 202.
The DOJ has not yet permitted South Carolina and Texas,8 both Covered Jurisdictions, to enforce their voter-identification requirements despite the fact that these laws are similar to the Indiana law upheld in Crawford. After DOJ denied administrative preclearance for South Carolina’s revised voter identification law, the State filed a declaratory-judgment action seeking reconsideration of the denial. South Carolina v. United States, D.D.C. Cause No. 1:12-cv203 (CKK, BMK, JDB) (Doc. 1.) South Carolina has had a voter identification law since 1988. South Carolina v. U.S., ___ F. Supp. 2d ___, 2012 WL 4814094, at *1 (D.D.C. 2012). The new version, referred to as Act R54, created a new type of photo ID
8 The State of Texas joined in the multi-state amicus brief at the petition stage, but has chosen to file its own separate amicus brief at the merits stage, in which it will likely discuss preclearance of its voter identification law.

23
that could be obtained for free at each county’s election office. Id. In addition, R54 removed the $5 fee for DMV photo ID cards. Id.
A three-judge panel held a trial from August 27, 2012 through August 31, 2012. South Carolina v. U.S., D.D.C. Cause No. 1:12-cv-203 (CKK, BMK, JDB) (Doc. 300-309.) In a memorandum opinion, the panel granted preclearance, holding that the law did not have a discriminatory retrogressive effect and that it was not enacted for a discriminatory purpose. South Carolina v. U.S., ___ F. Supp. 2d ___, 2012 WL 4814094, at *1 (D.D.C. 2012). However, because of the “numerous steps necessary to properly implement the law,” the court did not grant preclearance for the 2012 elections. Id.
South Carolina submitted a bill of costs seeking over $90,000 in taxable costs to which DOJ objected. South Carolina v. U.S., D.D.C. Cause No. 1:12-cv-203 (CKK, BMK, JDB) (Doc. 310, 312.) While the court has not yet ruled on the bill of costs, it cannot be disputed that South Carolina incurred an enormous cost to preclear a law similar to one that Indiana was able to implement without the federal government’s involvement.
Judge Williams questioned this inequity in his dissent in this case, stating: “Why should voter ID laws from South Carolina and Texas be judged by different criteria . . . from those governing Indiana?” (Pet. App. 94a.) Judge Williams could not find a rational explanation other than the historical records

24
of the Covered Jurisdictions, but noted that such a focus appears to be “foreclosed by Northwest Austin’s requirement that current burdens be justified by current needs.” (Id. at 95a.) This dramatic disparity in the treatment of similar States is incompatible with our history of treating the States as equal sovereigns and warrants this Court’s review.
C. The Preclearance Requirements Are Arbitrary and Burdensome.
As with the voter identification laws discussed above, Section 5‘s preclearance obligations lead to other absurdities. The Covered States and their political subdivisions must obtain federal preclearance before they enforce any change in a votingrelated standard, practice, or procedure. See 42 U.S.C. § 1973c. Changes requiring preclearance include:
• “Any change in qualifications or eligibility for voting”;
• “Any change concerning registration, balloting, and the counting of votes and any change concerning publicity for or assistance in registration or voting”; and
• “Any change in the boundaries of voting precincts or in the location of polling places.”
28 C.F.R. § 51.13(a), (b), (d). At the state level, the various attorneys general monitor legislation for “covered” changes and submit those changes to the

25
DOJ for preclearance. If a change originates at the local level, the local officials identify and submit the change.
1. Arizona’s Budgetary Decision to Close Several Motor Vehicle Department Branches Required Preclearance.
Because Arizona, like many other States, has faced serious budget concerns over the past several years, the Arizona Motor Vehicle Department (“MVD”) opted to close several branch offices. Arizona citizens who apply for a driver license or license renewal may, if otherwise qualified, register to vote or update their voter registration at the same time. Ariz. Rev. Stat. § 16-122. Thus, this decision to close the branch offices was a change concerning registration that necessitated a preclearance submission.
On June 21, 2012, Arizona requested preclearance to close an MVD location within the Pima County Justice Court in Tucson, Arizona. See DOJ File No. 2012-3656. The submission noted that there were three other voter registration locations in the immediate vicinity – one of which was the Pima County Recorder’s Office in the very same building as the MVD office that was closing. Id. This type of administrative decision should be left to the local jurisdictions. But because of Section 5, Arizona’s MVD had to wait until it received DOJ’s preclearance letter to effectuate that change.

26
2. The DOJ Denied Georgia County Expedited Preclearance for Temporary Change of Venue Following Construction Delays.
On July 12, 2012, the Douglas County, Georgia Board of Elections & Registration learned that renovations would not be complete in time for the State’s July 31 primary at two county schools serving as polling places. Fortunately, the problem was easily resolved as a substantive matter – both schools were within easy walking distance of another school that could serve as an alternative polling place. Four days later, on July 16, 2012, Douglas County sought expedited review of this change. Administrative Submission of Douglas County, Georgia, DOJ File No. 20124022. The detailed submission explained that this simple change would not have the purpose or effect of denying the right to vote on account of race, color, or membership in a language minority, and included a seven-page submission letter detailing 28 categories and subcategories of information, as well as multiple attachments. See id.
In spite of the simplicity of the requested change, the lack of any plausible discriminatory explanation, and the literal impossibility of not making the change, the DOJ did not preclear the Douglas County polling location changes before the election. The County was forced to move forward with the location change because the original polling places were unsafe, despite the Voting Rights Act provisions prohibiting implementation of an uncleared change.

27
In a September 13, 2012 letter, more than 40 days after the primary election, the Department of Justice finally notified Douglas County that while the Attorney General did not “interpose any objections” to the polling place change, the Department reserved the right to reexamine the county’s submission. Response to Douglas County Georgia, DOJ File No. 2012-4022. The letter further noted that “Section 5 expressly provides that the failure of the Attorney General to object does not bar subsequent litigation to enjoin the enforcement of the changes.” Id. Douglas County thus remained under continued threat of federal administrative review and litigation because of a decision that was necessary to protect the health and safety of its citizens.
D. The Prospect of Bailout for the Covered States Is Illusory.
Congress justified the possibility that its coverage formula would be over- or under-inclusive, with the bailout and bail-in provisions. Shelby Cnty., 811 F. Supp. 2d at 432-33. As discussed below, it would be essentially impossible for any of the amici States to bail out.
Like Congress, the majority below found solace in the bailout provision, stating that as of May 9, 2012, 136 jurisdictions and sub-jurisdictions had successfully bailed out. (Pet. App. 57a.) But no Covered State

28
has ever been allowed to bail out,9 and as Judge Williams noted in his dissent, bailout does not remove federal oversight. (Pet. App. 92a (stating that “for a decade after bailout, the court ‘retain[s] jurisdiction’ just in case the Justice Department or ‘any aggrieved person’ wishes to file a motion ‘alleging that conduct has occurred which . . . would have precluded’ bailout in the first place.”) (quoting 42 U.S.C. § 1973b(a)(5))). Further, the 1982 reauthorization of the VRA tightened the substantive standards for bailout:
A covered jurisdiction can now obtain bailout if, and only if, it can demonstrate that, during the preceding ten years, it has (simplifying slightly): (1) effectively engaged in no voting discrimination (proven by the absence of any judicial finding of discrimination or even a Justice Department “objection” (unless judicially overturned); (2) faithfully complied with § 5 preclearance; (3) “eliminated voting procedures and methods of election which inhibit or dilute equal access to the electoral process”; and (4) engaged in “constructive efforts to eliminate intimidation and harassment of persons exercising rights protected” under the act and “in other
9 The DOJ and the State of New Hampshire have jointly moved for entry of a bailout consent judgment and decree. State of New Hampshire v. Holder, D.D.C. Cause No. 1:12-cv-01854 (EGS, TBG, RMC) (Doc. 10). Unlike the amici states, New Hampshire has only ten covered towns and townships. Id.

29
constructive efforts, such as the expanded opportunity for convenient registration.”
(Id. (citing 42 U.S.C. § 1973b(a)(1)).)
None of the amici States is likely to ever successfully bail out because each state must prove that it (and all of its sub-jurisdictions) meets all the bailout requirements for the ten years preceding its declaratory judgment seeking bailout. If even one subjurisdiction receives an objection letter from DOJ for a voting change, the ten-year time period starts anew. Arizona, for example, has 667 sub-jurisdictions that are authorized to hold some form of election, including counties, cities, towns, school districts, and special taxing districts. The State of Arizona does not monitor those individual sub-jurisdictions to determine whether they are complying with Section 5 or whether they have ever received any preclearance objections. In fact, such oversight potentially violates Arizona law. The Arizona Supreme Court recently reiterated the long-held position that the framers of the Arizona Constitution valued local autonomy over the developing Nineteenth Century case law in other states that generally viewed cities and towns as subordinate to and dependent on the state’s legislature for government authority. City of Tucson v. Arizona, 273 P.3d 624, 625-26, ¶¶ 7-8 (Ariz. 2012); see also Strode v. Sullivan, 236 P.2d 48, 53 (Ariz. 1951). As with Arizona’s cities, the counties, school boards, and special taxing districts are responsible for submitting their respective voting changes for preclearance.

30
Because the State of Arizona has no method of ensuring that the sub-jurisdictions comply with Section 5, the State cannot affirmatively allege in a bailout action that no sub-jurisdiction has violated the VRA. Instead, the State will have to ask all of the sub-jurisdictions to voluntarily provide the necessary information and request the DOJ for each submission. This process in itself will cause the State (and the sub-jurisdictions) to use valuable staff time and resources. And if just one single sub-jurisdiction of the 667 received a preclearance objection or an unfavorable result in a Section 2 lawsuit in the past ten years, the bailout clock will start ticking again from the date of the most recent objection. As Justice Thomas noted in his dissent in Northwest Austin, the prospect of bailout for a State is nothing more than a “mirage.” Nw. Austin, 557 U.S. at 215 (Thomas, J., concurring in the judgment in part and dissenting in part).
Covered jurisdictions such as the amici States likely will be forced to continue to operate under the unconstitutional burdens of Sections 4(b) and 5 of the VRA unless and until this Court removes them. The Court should do so now.
---------------------------------  ---------------------------------

31
CONCLUSION The Court should reverse the court of appeals’ judgment.
Respectfully submitted this 31st day of December, 2012,
THOMAS C. HORNE Arizona Attorney General DAVID R. COLE Solicitor General MICHELE L. FORNEY Assistant Attorney General Attorneys for Amici Curiae

 
 No. 12-96

IN THE
Supreme Court of the United States

SHELBY COUNTY, ALABAMA, v.

Petitioner,

ERIC H. HOLDER, JR., ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA, ET AL., Respondents.

On Writ of Certiorari to the United States Court of Appeals for the
District of Columbia Circuit

BRIEF OF THE LEADERSHIP CONFERENCE ON CIVIL AND HUMAN RIGHTS AND THE LEADERSHIP CONFERENCE EDUCATION
FUND ET AL. AS AMICI CURIAE IN SUPPORT OF RESPONDENTS

LISA M. BORNSTEIN THE LEADERSHIP CONFER-
ENCE ON CIVIL AND HUMAN RIGHTS 1629 K St. N.W. Washington, DC 20006 (202) 466-3311

MATTHEW M. HOFFMAN (Counsel of record)
STEPHEN J. POLLAK JOHN TOWNSEND RICH SIRISHA V. KALICHETI ELLA A. CAPONE GOODWIN PROCTER LLP 901 New York Ave., N.W. Washington, DC 20001 (202) 346-4000

Counsel for Amici Curiae

February 1, 2013

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES....................................iii

INTEREST OF AMICI CURIAE ............................. 1

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

ARGUMENT ............................................................ 6

I. There Is Real and Substantial Risk That the Progress Made in Combatting Voting Discrimination Since 1965 Will Be Eroded If § 5 Is Invalidated............................................ 6

A. History Shows That Gains In Minority Political Participation Can Be Reversed When Remedial Laws Are Invalidated....... 7

B. Recent Court Decisions Show That Without the Protection of § 5 Many Covered Jurisdictions Would Adopt Practices That Abridge Minority Voting Rights. ........................................................ 14

II. Congress’s Decision To Reauthorize § 5 and To Retain the Existing Coverage Formula Are Amply Supported by the Legislative Record and Are Entitled to Deference. ........... 20

A. Congress Reasonably Concluded on an Extensive Record That Discriminatory Voting Practices Still Continue in the Covered Jurisdictions. ............................... 24

ii B. Congress’s Decision To Retain the
Existing Coverage Formula Was Reasonable. ................................................ 28 III. The Coverage of § 5 Will Likely Be Reduced Over Time Through the Application of the Bailout Mechanism. ......................................... 33 CONCLUSION ....................................................... 35
APPENDIX A: The Leadership Conference on Civil and Human Rights Participating Member Organizations
APPENDIX B: Additional Amici Curiae

iii TABLE OF AUTHORITIES

Cases:

Page

City of Boerne v. Flores, 521 U.S. 507 (1997) ........... 22

Crawford v. Marion County Election Board, 553 U.S. 181 (2008) .......................................... 14, 15

Florida v. United States, No. 11-1428, 2012 U.S. Dist LEXIS 115647 (D.D.C. Aug. 16, 2012) ................................................................. 16, 17

Jeffers v. Clinton, 740 F. Supp. 585, 626-27 (E.D. Ark, 1990) ..................................................... 32

New York Trust Co. v. Eisner, 256 U.S. 345 (1921) ........................................................................ 6

Northwest Austin Municipal Utility District Number One v. Holder, 577 U.S. 193 (2009) ........................................................... 7, 28, 34

South Carolina v. United States, No. 12-203, 2012 U.S. Dist LEXIS 146187 (D.D.C. Oct. 10, 2012).................................................... 17, 18

Texas v. Holder, No. 12-cv-128, 2012 U.S. Dist LEXIS 127119 (D.D.C. Aug. 30, 2012) ............ 15, 16

Texas v. United States, No. 11-1303, 2012 U.S. Dist. LEXIS 121685 (D.D.C. 2012) .................. 19, 20

Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180 (1997) ...................................................... 5, 21, 22, 23

United States v. Cruikshank, 92 U.S. 542 (1876) .......................................................... 10, 11, 12

United States v. Reese, 92 U.S. 214 (1876) ... 10, 11, 12

iv Constitutional Provisions U.S. CONST. amend. XIV ....................................... 2, 31 U.S. CONST. amend. XV................................. 2, 3, 7, 31
Statutes: Act of Feb. 28, 1871, ch. 99, 16 Stat. 433 ................... 7 Enforcement Act of 1870, 16 Stat. 140 ....................... 7 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 (2006): § 2(b)(3)................................................................ 24 § 2(b)(4)(A)..................................................... 25, 27 § 2(b)(4)(B)........................................................... 27 § 2(b)(7)...........................................................20-21 § 2(b)(9)................................................................ 21 § 3(c) .................................................................... 30 Voting Rights Act of 1965, Pub L. No. 89-110, 79 Stat. 437, as amended: § 2, 42 U.S.C. § 1973 ........................................... 29 § 3(c), 42 U.S.C. § 1973a(c) ................................. 32 § 4(a), 42 U.S.C. § 1973b(a) ................................ 32 § 5, 42 U.S.C. § 1973c ................................. passim
Legislative History: 152 CONG. REC. 14,303 (2006)................................... 24 152 CONG. REC. 14,273-74 (2006).............................. 30 152 CONG. REC. 14,275 (2006)................................... 31 152 CONG. REC. 14,301 (2006)................................... 31 152 CONG. REC. 15,325 (2006)................................... 24

v Extension of the Voting Rights Act: Hearings
Before the Subcomm. on Civil and Constitutional Rights of the H. Comm. on the Judiciary, 97th Cong. (1981)............................................ 13 H.R. REP. NO. 109-478 ....................................... passim S. REP. NO. 109-295 (2006)........................................ 23 To Examine the Impact and Effectiveness of the Voting Rights Act: Hearing Before the Subcomm. on the Constitution of the House Comm, on the Judiciary, 109th Cong. (2006) ....... 29 Voting Rights Act: An Examination of the Scope and Criteria for Coverage Under the Special Provisions of the Act: Hearing Before the Subcomm. on the Constitution of the H. Comm. On the Judiciary, 109th Cong. (2005) ..............34-35
Other Authorities: Travis Crum, Note, The Voting Rights Act’s Se-
cret Weapon: Pocket Trigger Litigation and Dynamic Preclearance, 119 YALE L.J. 1992 (2010) ...................................................................... 32 ERIC FONER, RECONSTRUCTION: AMERICA’S UNFINISHED REVOLUTION (1988) ................... 8, 9, 11, 12 WILLIAM GILLETTE, RETREAT FROM RECONSTRUCTION 1869–1879 (1979) ................................. 12 BERNARD GROFMAN ET AL., MINORITY REPRESENTATION AND THE QUEST FOR VOTING EQUALITY (1992) ................................................. 7, 10

vi J. Gerald Hebert, An Assessment of the Bailout
Provisions of The Voting Rights Act, in VOTING RIGHTS ACT REAUTHORIZATION OF 2006: PERSPECTIVES ON DEMOCRACY, PARTICIPATION, AND POWER 257 (Ana Henderson ed., 2007) ....................................................................... 35 LEEANNA KEITH, THE COLFAX MASSACRE (2008) ................................................................ 11, 12 MICHAEL J. KLARMAN, FROM JIM CROW TO CIVIL RIGHTS: THE SUPREME COURT AND THE STRUGGLE FOR RACIAL EQUALITY (2004) ............ 8, 10 CHARLES LANE, THE DAY FREEDOM DIED: THE COLFAX MASSACRE, THE SUPREME COURT, AND THE BETRAYAL OF RECONSTRUCTION (2008) ........... 11 1 GEORGE SANTAYANA, THE LIFE OF REASON; OR, THE PHASES OF HUMAN PROGRESS (1905) ................ 6 RICHARD M. VALELLY, THE TWO RECONSTRUCTIONS: THE STRUGGLE FOR BLACK ENFRANCHISEMENT (2004) ............................................... 7, 10 2 CHARLES WARREN, THE SUPREME COURT IN UNITED STATES HISTORY (1922) ............................. 12

INTEREST OF AMICI CURIAE The Leadership Conference on Civil and Human Rights (“The Leadership Conference”) is a coalition of over 200 organizations committed to the protection of civil and human rights in the United States.1 It is the nation’s oldest, largest, and most diverse civil and human rights coalition. The Leadership Conference was founded in 1950 by three legendary leaders of the civil rights movement—A. Philip Randolph, of the Brotherhood of Sleeping Car Porters; Roy Wilkins, of the NAACP; and Arnold Aronson, of the National Jewish Community Relations Advisory Council. Its member organizations represent people of all races and ethnicities.2 One of the missions of The Leadership Conference is to promote effective civil rights legislation and policy. The Leadership Conference was in the vanguard of the movement to secure passage of the Civil Rights Acts of 1957, 1960 and 1964, the Voting Rights Act of 1965 and the Fair Housing Act of 1968. It also played a leading role in gathering evidence to submit to Congress and coordinating the efforts of the civil rights community in connection with the 2006 amendments to the Voting Rights Act that are at issue in this case.
1 The parties have consented to the filing of this brief in letters on file with the Clerk. No counsel for a party authored this brief in whole or in part, and no such counsel or party made a monetary contribution intended to fund the preparation or submission of this brief. No person other than amici curiae, their members, or their counsel made a monetary contribution to its preparation or submission. 2 See Appendix A for a list of The Leadership Conference’s member organizations.

2
The Leadership Conference Education Fund (“The Education Fund”) is the research, education, and communications arm of The Leadership Conference. It focuses on documenting discrimination in American society, monitoring efforts to enforce civil rights legislation, and fostering better public understanding of issues of prejudice. The Education Fund has published studies and reports on many subjects, including voting rights.
The Leadership Conference and The Education Fund believe that a vital national interest is at stake in this case. That national interest is the right of all citizens to vote free from discrimination and to choose leaders that represent their interests and, by doing so, to promote the influence of the United States throughout the world as a viable and vibrant democracy.
Several other organizations also join as signatories to this brief. These organizations are identified and their interests set forth in Appendix B.
SUMMARY OF ARGUMENT Congress’s decision in 2006 to reauthorize § 5 of the Voting Rights Act for 25 years and to maintain the existing coverage formula was a reasonable and appropriate exercise of its enforcement authority under the Fourteenth and Fifteenth Amendments. The jurisdictions covered by § 5 are places where discriminatory voting practices have historically been severe. While many of these jurisdictions have made substantial progress toward eliminating discriminatory voting practices, the legislative record amassed by Congress—as well as more recent history—shows that these gains are fragile and that discriminatory practices still persist. This Court should not take the

3
extraordinary step of second-guessing Congress’s determination that § 5 is still needed, given the fundamental nature of the right to vote, the careful deliberation that Congress gave to the matter, and the extensive factual findings on which Congress’s judgment rests.
We make three key points below. 1. If § 5 were to be invalidated, there is a real and substantial risk that the progress made in the covered jurisdictions since 1965 would be rolled back. American history offers a valuable lesson here. Following the Civil War, Congress enacted legislation designed to protect African Americans’ right to vote, and federal authorities aggressively enforced these laws. These efforts led to substantial gains in African-American voter registration and political participation throughout the South. But those gains were quickly wiped out once Reconstruction ended. Decisions of this Court invalidating or narrowly construing federal laws designed to protect AfricanAmerican voting rights played a major role in this reversal. With no effective federal statutory protection for minority voting rights, states and local jurisdictions implemented a wide variety of discriminatory laws and practices that effectively nullified the Fifteenth Amendment’s guarantees for generations. Recent court decisions show that there is a risk that similar retrenchment would occur in the covered jurisdictions if § 5 were not in place. Relying on § 5, federal courts have blocked enforcement of new laws in Texas, Florida, and South Carolina that had the potential to disproportionately prevent minority voters from casting ballots. These included a strict new voter identification law in Texas and new restrictions

4
on early voting in Florida. A court also blocked South Carolina’s new voter ID law from taking effect in the 2012 election because of likely discriminatory impact on African-American voters. While the court allowed the law to be enforced in future elections, it did so in reliance on a finding that the State had adopted ameliorative provisions that would reduce discriminatory impact in future elections, with two judge noting that § 5 had played an instrumental role in persuading the State to adopt these provisions and construe them broadly. A court also refused to preclear Texas’s new Congressional, State Senate, and State House redistricting plans, specifically concluding that both the Congressional plan and the Senate plan were enacted with a discriminatory intent. Thus § 5 played a critical role in protecting minority voting rights in the most recent election cycle. If § 5 were not in place, covered jurisdictions would find it much easier to implement discriminatory voting practices, and there is a significant risk that the gains of the last five decades would be eroded, just as the gains of the Reconstruction era were lost once the statutory scheme to protect those rights was no longer in force.
2. Congress’s determinations that § 5 is still needed to preserve and continue the progress of the last four decades and that the existing coverage formula remains appropriate are amply supported by the legislative record and are entitled to the highest degree of deference from this Court. Petitioner Shelby County challenges the conclusions that Congress drew from the record and urges the Court to reweigh the evidence and draw its own conclusions. But that is not the proper role of this Court. As this Court has held and the Court of Appeals properly recognized, “[t]he Constitution gives to Congress the role of

5
weighing conflicting evidence in the legislative process.” Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180, 199 (1997). The Court does not reweigh the evidence de novo, but instead looks simply to whether Congress has drawn reasonable inferences based on substantial evidence. Here, Congress amassed a substantial legislative record and reasonably concluded from that evidence that the protections of § 5 are still necessary and that the existing coverage formula remains appropriate. Those findings are entitled to deference. The Court should reject Shelby County’s invitation to substitute its own judgment for the considered judgment of Congress.
3. To the extent that the coverage formula is overinclusive or underinclusive, Congress intended that adjustments would be made on a case-by-case basis through the bailout and bail-in mechanisms. Congress anticipated that jurisdictions with “clean” records would avail themselves of bailout, and in fact, the number of bailouts has increased dramatically since 2006. Obtaining a bailout is not a difficult or expensive procedure, and since 1982, when the bailout procedure was liberalized, no application for a bailout has been rejected. There is every reason to expect that the number of bailouts will continue to climb, which will naturally reduce the reach of § 5 in the manner that Congress intended.
In sum, striking down the 2006 reauthorization and invalidating § 5 wholesale, as Shelby County now urges, could have far-reaching consequences for minority voters. Without the continued protection of § 5, there is a significant risk of “backsliding” by covered jurisdictions and a likelihood that millions of minority voters will face new barriers to the exercise of their most fundamental political right. The Court

6 should not allow this to happen. It should respect the judgment of Congress as to the both the continued need for the protections of § 5 and the appropriateness of the existing coverage formula.
ARGUMENT I. There Is Real and Substantial Risk That
the Progress Made in Combatting Voting Discrimination Since 1965 Will Be Eroded If § 5 Is Invalidated. As this Court has observed, “a page of history is worth a volume of logic.” New York Trust Co. v. Eisner, 256 U.S. 345, 349 (1921).3 With that adage in mind, it is instructive to consider the history of Congress’s first efforts to protect minority voting rights in the post-Civil War period, the role this Court played by invalidating those laws, and the consequences that ensued. That history shows that even very substantial gains in minority political participation can be rolled back. This Court’s decisions in the 1870s to invalidate federal voting rights legislation paved the way for Southern states to enact laws that effectively barred African Americans from exercising their right to vote for many generations. If this Court were to invalidate § 5, there is a very real and substantial risk that this history would repeat itself. The Court should not allow that to happen.
3 Cf. 1 GEORGE SANTAYANA, THE LIFE OF REASON; OR, THE PHASES OF HUMAN PROGRESS 284 (1905) (“Those who cannot remember the past are condemned to repeat it.”).

7
A. History Shows That Gains In Minority Political Participation Can Be Reversed When Remedial Laws Are Invalidated.
As this Court noted in Northwest Austin Municipal Utility District Number One v. Holder, 557 U.S. 193 (2009), the United States has made extraordinary progress in combatting voting discrimination since 1965, improvements which are “due in significant part to the Voting Rights Act itself” and which “stand as a monument to its success.” Id. at 202. These gains include dramatic improvements in minority voter registration and turnout, as well as the fact that minority candidates have been elected to office at “unprecedented levels.” Id.
But there were also extraordinary advances in minority voter registration and political participation in the South in the decade following the Civil War. These gains resulted from aggressive federal efforts to secure and protect African Americans’ right to vote. By 1868, more than 700,000 African Americans had been registered to vote under the supervision of federal troops.4 As a result, 75% to 95% of eligible African-American men were registered to vote in the South during the early years of Reconstruction.5
The Fifteenth Amendment was ratified in 1870. Shortly afterward, Congress enacted the Enforcement Act of 1870, 16 Stat. 140, which prohibited discrimination in voter registration and prescribed criminal penalties for obstructing voting rights. The
4 BERNARD GROFMAN ET AL., MINORITY REPRESENTATION AND THE QUEST FOR VOTING EQUALITY 5 (1992). 5 RICHARD M. VALELLY, THE TWO RECONSTRUCTIONS: THE STRUGGLE FOR BLACK ENFRANCHISEMENT 33 (2004).

8 Act was amended in 1871 to permit federal courts to appoint election supervisors to oversee federal elections and voting registration. Act of Feb. 28, 1871, ch. 99, 16 Stat. 433.
The combination of large numbers of AfricanAmerican voters and the adoption of new legal mechanisms to protect their rights had a remarkable impact on minority political participation. Substantial numbers of African Americans were elected to political office at all levels of government in the early 1870s. By the end of Reconstruction, 18 African Americans had served in Southern states in such statewide offices as lieutenant governor, treasurer, superintendent of education or secretary of state, and by 1875 there were eight African Americans serving in Congress, representing six different states.6 More than 600 African Americans also served in state legislatures—the large majority of them former slaves.7 African Americans made up nearly half of the lower-house delegates in Mississippi and Louisiana and were a majority in South Carolina, which also had an African-American justice on its Supreme Court.8 In the words of Professor Eric Foner, a leading historian of the Reconstruction period, this represented “a stunning departure in American politics.”9 And “[a]n equally remarkable
6 ERIC FONER, RECONSTRUCTION: AMERICA’S UNFINISHED REVOLUTION 1863-1877, at 353, 538 (1988). 7 Id. at 355. 8 MICHAEL J. KLARMAN, FROM JIM CROW TO CIVIL RIGHTS: THE SUPREME COURT AND THE STRUGGLE FOR RACIAL EQUALITY 29 (2004). 9 FONER, supra, at 355.

9
transformation occurred at the local level, where the decisions of public officials directly affected daily life and the distribution of power.”10 According to Professor Foner, “[i]n virtually every county with a sizable black population, blacks served in at least some local office during Reconstruction.”11
But these gains proved short-lived. Reconstruction ended in 1877, following a compromise between Democrats and Republicans that resolved the disputed presidential election of 1876. Southern jurisdictions then began implementing a wide variety of measures to nullify African-American voting rights. Many of the early measures involved racial gerrymandering techniques designed to dilute AfricanAmerican voting strength and prevent the election of African Americans’ preferred candidates.12 In the 1890s, state efforts to disenfranchise AfricanAmerican voters became more brazen. Beginning with Mississippi in 1890, several Southern states
10 Id. 11 Id. at 356. 12 See id. at 590:
“Throughout the South, . . . districts were gerrymandered to reduce Republican voting strength. Mississippi Redeemers concentrated the bulk of the black population in a ‘shoestring’ Congressional district running the length of the Mississippi River, leaving five others with white majorities. Alabama parceled out portions of its black belt into six separate districts to dilute the black vote. Cities from Richmond to Montgomery redrew ward lines to ensure Democratic control. Wilmington’s black wards, containing four fifths of the city’s population, elected only one third of its aldermen.”

10 rewrote their constitutions and enacted laws adopting literacy tests, poll taxes, “good character” requirements, white primaries and other similar measures intended to exclude African Americans from the electorate.13 As a result, the gains in minority political participation during Reconstruction were quickly erased.14
This Court’s decisions in United States v. Reese, 92 U.S. 214 (1876), and United States v. Cruikshank, 92 U.S. 542 (1876), played a significant role in this reversal. In Reese, voting inspectors in Kentucky were indicted under the Enforcement Act for refusing to accept the vote of an African-American citizen. See 92 U.S. at 238–39 (Hunt, J., dissenting). The Court affirmed the dismissal of the indictment, holding that key provisions of the Enforcement Act were unconstitutional. Id. at 218–20.
In Cruikshank, decided the same day as Reese, the Court reversed the convictions of three Louisiana men under the Enforcement Act for conspiracy to de-
13 See GROFMAN ET AL., supra, at 8–9. 14 For example, in the 1880 presidential election, AfricanAmerican turnout in the South ranged from a low of 42% in Georgia to a high of 84% in Florida. VALELLY, supra, at 128. By the 1900 election, turnout had been reduced to the single digits in five southern states, and was well on its way to virtual extinction throughout the region. Id. By the mid-1890s, the number of African Americans in the Mississippi legislature had been reduced to zero (down from 64 in 1873), and just one African-American legislator remained in South Carolina. KLARMAN, supra, at 32. Similarly, local office-holding by African Americans all but disappeared. Id.; see also VALELLY, supra, at 52 (number of African-American legislators in the South fell by nearly 80% between the end of Reconstruction and 1890).

11 ny African Americans a variety of civil rights, including the right to vote. This case arose out of a disputed election that escalated into an armed conflict—the notorious “Colfax Massacre” of 1873—in which whites seeking to expel African-American and Republican officeholders stormed a courthouse in Grant Parish, Louisiana, killing more than 100 African Americans who had gathered to defend the courthouse.15 In reversing the convictions, the Court concluded that many of the rights referred to in the indictment—including the right of peaceable assembly, the right to bear arms, and the rights of life and personal liberty—were not granted or protected by the federal Constitution. 92 U.S. at 55154. With respect to the convictions for hindering African Americans in the exercise of their voting rights, the Court concluded that the indictment had not alleged a racial motive: “We may suspect that race was the cause of the hostility; but it is not so averred.” Id. at 556.
Historians have long agreed that these decisions gutted the federal statutory scheme for the protection of African-American voting rights. In 1923, Supreme Court historian Charles Warren observed:
“The practical effect of these decisions was to leave the Federal statutes almost wholly ineffective to protect the negro, in view of the construction of the Amendments adopted by the Court,
15 See generally FONER, supra, at 437. For more detailed accounts of the Colfax Massacre and its aftermath, see CHARLES LANE, THE DAY FREEDOM DIED: THE COLFAX MASSACRE, THE SUPREME COURT, AND THE BETRAYAL OF RECONSTRUCTION (2008); LEANNA KEITH, THE COLFAX MASSACRE: THE UNTOLD STORY OF BLACK POWER, WHITE TERROR, AND THE DEATH OF RECONSTRUCTION (2008).

12
the lack of adequate legislation in the Southern States, and the extremely limited number of rights which the Court deemed inherent in a citizen of the United States, as such, under the Constitution.”16 Professor Foner describes Cruikshank as “devastating,” noting that it “rendered national prosecution of crimes committed against blacks virtually impossible, and gave a green light to acts of terror where local officials either could not or would not enforce the law.”17 Professor William Gillette likewise notes that Reese “made future enforcement [of voting rights] vastly more difficult, and in some cases clearly impossible.”18 And another history notes that the two decisions “limited the likelihood of intervention to prevent systematic abuses,” and that “[i]n combination with the withdrawal of troops . . . this bar to oversight empowered mass intimidations and manipulations at the polls.”19 In short, the Court’s failure to protect African-American voting rights played a significant role in the retrenchment that followed the end of Reconstruction. The advances in minority political participation in the United States over the last four decades are undoubtedly more solid than the gains that were made in the post-Civil War era. But the history of the post-
16 2 CHARLES WARREN, THE SUPREME COURT IN UNITED STATES HISTORY 604 (1922). 17 FONER, supra, at 530–31. 18 WILLIAM GILLETTE, RETREAT FROM RECONSTRUCTION 18691879, at 295 (1979). 19 KEITH, supra, at 158.

13 Reconstruction period serves as a warning that the clock of progress can be turned back if the political and judicial branches of government fail to exercise sufficient vigilance to protect minority voting rights. The comments of another prominent historian, Professor C. Vann Woodward, at the hearings on the 1982 reauthorization of the Voting Rights Act are pertinent in this regard. Asked why the history of Reconstruction is relevant, Professor Woodward replied:
“[I]t makes evident and clear that revolutions and advances in popular rights and democratic rights can be reversed; that history can move backward; that enormous gains can be lost and jeopardized, eroded, or diluted, and abridged in spite of the enormous cost that those advances have made.
“The first reconstruction cost us our greatest bloodshed and tragedy. It would seem that if anything has been paid for at a higher price, it was these advances. And yet, they were eroded and lost, and only a century later they were restored.
“My history teaches me that if it can happen once, it can happen again.”20
20 Extension of the Voting Rights Act: Hearings Before the Subcomm. on Civil and Constitutional Rights of the H. Comm. on the Judiciary, 97th Cong. 2027 (1981).

14 B. Recent Court Decisions Show That With-
out the Protection of § 5 Many Covered Jurisdictions Would Adopt Practices That Abridge Minority Voting Rights. Professor Woodward’s warning that history can repeat itself is as valid today as it was in 1982. Section 5 continues to play a critical role both in encouraging states to safeguard the interests of minority voters and in preventing discriminatory laws from ever taking effect. If § 5 were not in place, there is a substantial risk that many covered jurisdictions would implement discriminatory practices that would erode the gains that minority voters have made since 1965. Recent court decisions in preclearance cases show that covered jurisdictions continue to engage in both “first generation” type discriminatory tactics— imposing direct barriers on registration and the right to vote—and “second generation” tactics—limiting the ability of minority voters to elect their preferred candidates.21 In the former category, Texas enacted a new law in 2011 requiring voters to show photo identification in order to cast a ballot. While several states have enacted photo ID laws in recent years, and the Court has upheld the constitutionality of an Indiana photo ID law, Crawford v. Marion County Election Board, 553 U.S. 181 (2008), the Texas law
21 The term “second generation” is a misnomer. As the Court of Appeals noted, these tactics are “in fact decades-old forms of gamesmanship.” Pet. App. 28a. As noted above (supra n.12), these types of dilutive mechanisms were among the first discriminatory practices to be adopted after Reconstruction. Such tactics are just as pernicious as direct barriers because they prevent minority voters from having an equal and fair opportunity to participate in the political process.

15
was extraordinarily onerous. The three-judge court reviewing the Texas statute noted that it was “far stricter” than either the Indiana law at issue in Crawford or a Georgia law that was precleared by the Justice Department. Texas v. Holder, No. 12-cv128, 2012 U.S. Dist LEXIS 127119, at *47 (D.D.C. Aug. 30, 2012). First, while the Georgia and Indiana laws generally permitted voters to use expired IDs, the Texas law would have prohibited voters from using any ID that had expired more than 60 days previously. Id. at *47. Second, while the Texas law would have ostensibly allowed voters to obtain a free photo ID at a local office of the Texas Department of Public Safety (“DPS”), the burdens involved in obtaining a free ID would have been much heavier than in Indiana or Georgia. To obtain a photo ID, a voter would have been required to present one of a limited number of government issued documents, the cheapest of which (a certified birth certificate) cost $22— significantly more than the comparable cost in Indiana. Id. at *4748. Moreover, 81 of Texas’s 254 counties had no DPS office, and 34 additional counties had offices that were open two days a week or less. Id. at *1516, *4849. In some towns with large Hispanic or African-American populations, the nearest DPS office is 100 to 125 miles away. Id. at *8182. And unlike the Indiana law, the Texas law did not enable indigent persons without valid photo ID to cast provisional ballots. Id. at *97.
Examining these features, the court concluded that Texas had “enacted a voter ID law that—at least to our knowledge—is the most stringent in the country.” Id. at *96. It held that the law would weigh heavily on Texas’s poorest residents, and that because the undisputed evidence showed that racial

16
minorities were disproportionately likely to live in poverty, the law would likely have a discriminatory effect. Id. at *43. The court explained:
“Based on the record evidence before us, it is virtually certain that these burdens will disproportionately affect racial minorities. Simply put, many Hispanics and African Americans who voted in the last election will, because of the burdens imposed by SB 14, likely be unable to vote in the next election. This is retrogression.” Id. at *86. Because the court resolved the case based on the Texas law’s discriminatory effect, it did not reach the discriminatory purpose prong of § 5. Id. at *95. But it noted that the legislature had “[i]gnor[ed] warnings that [the bill], as written would disenfranchise minorities” and tabled or defeated amendments that would have ameliorated these problems. Id. at *9697. Florida (which has five covered counties) provides another example of an effort to limit access to the ballot. In 2011, Florida enacted a law that would have decreased the number of early voting days (from 12 to 8) and offered election officials the discretion to reduce the number of daily hours available for early voting (from 12 to 6). Florida v. United States, No. 11-1428, 2012 U.S. Dist LEXIS 115647, at *5, *2428 (D.D.C. Aug. 16, 2012). A three-judge court denied Florida’s preclearance request, finding that “minority voters will be disproportionately affected by the changes in early voting procedures because they disproportionately use early in-person voting.” Id. at *6. The court further found that if early voting were limited to six hours per day, as permitted by

17
the new law, “it is likely that early voting would start after the workday starts and would end before the workday ends, making it even more inaccessible to many minority voters who have inflexible work schedules.” Id. at *91. It explained that “[t]his dramatic reduction in a form of voting disproportionately used by African-Americans would be analogous to . . . closing polling places in disproportionately African-American precincts” and would impose a burden that would dissuade African Americans from voting Id. at *9192.
In the Texas and Florida cases, § 5 was used to block changes that could have limited minority voters’ access to the ballot. But § 5 also plays an important role in shaping legislation so as to reduce discriminatory impact. For example, South Carolina, like Texas, enacted a photo ID law in 2011. South Carolina v. United States, No. 12-203, 2012 U.S. Dist LEXIS 146187, at *89 (D.D.C. Oct. 10, 2012). The South Carolina law, however, is less restrictive than the Texas law. Most notably, it contains a “reasonable impediment” provision which allows voters with a non-photo voter registration card to vote simply by signing an affidavit stating the reason for not having obtained a photo ID. Id. at *1112. During the course of the preclearance litigation, State officials provided authoritative interpretations that this provision would be interpreted expansively so that only the veracity, not the reasonableness, of the voter’s stated reasons would be subject to challenge. Id. at *1521.
Relying on these interpretations, the court found that the law was not discriminatory in purpose or effect and granted preclearance. Id. at *55. It also concluded, however, that without the reasonable impediment provision the law might have a discrimina-

18
tory impact on African-American voters, who disproportionately lack the required forms of photo ID. Id. at *5960. Because the court concluded that it would not be possible to implement the law in the time remaining before the 2012 election, it blocked enforcement of the law in 2012, explaining that “there is too much of a risk to African-American voters for us to roll the dice in such a fashion.” Id. at *60. It further noted that if State officials were to narrow their interpretation of the law in the future, that change would require preclearance. Id. at *6566.
Two judges noted in a concurring opinion that § 5 played a critical role in persuading the legislature to adopt the reasonable impediment provision and encouraging state officials to construe it broadly:
“[O]ne cannot doubt the vital function that Section 5 of the Voting Rights Act has played here. Without the review process under the Voting Rights Act, South Carolina’s voter photo ID law certainly would have been more restrictive. Several legislators have commented that they were seeking to structure a law that could be precleared. . . . The key ameliorative provisions were added during that legislative process and were shaped by the need for pre-clearance. And the evolving interpretation of these key provisions of Act R54, particularly the reasonable impediment provision, subsequently presented to this Court were driven by South Carolina officials’ efforts to satisfy the requirements of the Voting Rights Act.” Id. at *70-71 (Bates, J., concurring). Another Texas case provides an egregious illustration of dilutive tactics designed to prevent minority voters from electing their preferred candidates. In

19
Texas v. United States, No. 11-1303, 2012 U.S. Dist. LEXIS 121685 (D.D.C. Aug. 28, 2012), the court declined to preclear Texas’s redistricting plans for Congress, the State Senate, and the State House of Representatives. The court did not rely only on § 5’s discriminatory effects prong, but also expressly found that some of the plans were enacted with discriminatory purpose.
The court held that the Congressional plan would have a retrogressive effect and that it was enacted with discriminatory purpose. Id. at *53, *7677. It noted that “substantial surgery” had been conducted to remove the district offices of incumbent minority representatives from their new districts while no such surgery was performed on the districts of Anglo incumbents, that the “economic guts” of districts represented by minorities had also been removed, and that Texas had not offered a convincing explanation for these actions. Id. at *7477. It also found that African-American and Hispanic members had been excluded from the process of drafting the new maps and that that there were procedural and substantive departures from the normal decision-making process. Id. at *7779. It further noted Texas’s “history of failures to comply with the VRA” in prior redistricting. Id. at *77.
With respect to the State Senate plan, the court concluded that the state had deliberately “cracked” an existing district by dividing politically cohesive and geographically concentrated African-American and Hispanic communities among three separate districts—again with no credible explanation for such action. Id. at *8494. Finally, the court found that the State House plan would abridge minority voting rights in at least four districts. Id. at *94. Although

20
the court did not reach the issue of discriminatory intent with respect to the House plan, it cited troubling evidence that mapmakers had specifically sought to manipulate the Hispanic vote and to “crack” districts along racial lines to dilute minority voting power. Id. at *12930.
These decisions demonstrate that notwithstanding the many years that have elapsed since the Voting Rights Act was first enacted, covered jurisdictions continue to engage in practices that have the effect— and in some cases the purpose—of denying minority voters access to the ballot and an equal chance to elect their preferred candidates. During the 2012 election cycle, § 5 was instrumental in blocking discriminatory voting changes in covered jurisdictions from taking effect and persuading state officials to adopt ameliorative measures to reduce discriminatory impact. Without the safeguards provided by § 5, it is likely that these discriminatory changes (and potentially others) would be implemented, and the progress made in the covered jurisdictions since 1965 would begin to erode, just as it did in the postReconstruction era. As history shows, the clock of progress has been turned back before, and this Court should not let it happen again. II. Congress’s Decision To Reauthorize § 5 and
To Retain the Existing Coverage Formula Are Amply Supported by the Legislative Record and Are Entitled to Deference. In reauthorizing § 5, Congress concluded that, despite significant progress toward achieving political equality for minority voters in the covered jurisdictions, “40 years has not been a sufficient amount of time to eliminate the vestiges of discrimination fol-

21
lowing nearly 100 years of disregard for the dictates of the 15th amendment and to ensure that the right of all citizens to vote is protected as guaranteed by the Constitution.” Pub. L. No. 109-246, § 2(b)(7), 120 Stat. 577 (2006). It further found that, without continuation of § 5, minority voters “will be deprived of the opportunity to exercise their right to vote, or will have their votes diluted, undermining the significant gains made by minorities in the last 40 years.” Id. § 2(b)(9).
Congress amassed a substantial legislative record to support these conclusions. Shelby County now asks the Court to reexamine that record and draw its own conclusions about whether voting discrimination still exists in the covered jurisdictions and whether the coverage formula remains reasonable. This argument fundamentally misapprehends the role of this Court in reviewing Congressional determinations.
Turner Broadcasting System, Inc. v. FCC, 520 U.S. 180 (1997) illustrates the level of deference that is appropriate in this case.22 In Turner, the Court affirmed the constitutionality of the “must-carry” provisions of the Cable Television Consumer Protection and Competition Act against a First Amendment challenge. The Court explained:
“In reviewing the constitutionality of a statute, courts must accord substantial deference to the predictive judgments of Congress. Our sole obligation is to assure that, in formulating its judgments, Congress has drawn reasonable infer-
22 The Court of Appeals repeatedly cited Turner. See Pet. App. 21a, 35a, 44a, 47a.

22 ences based on substantial evidence. . . . [S]ubstantiality is to be measured in this context by a standard more deferential than we accord to judgments of an administrative agency. We owe Congress’ findings deference in part because the institution is far better equipped than the judiciary to amass and evaluate the vast amounts of data bearing upon legislative questions. . . . This is not the sum of the matter, however. We owe Congress’ findings an additional measure of deference out of respect for its authority to exercise the legislative power. Even in the realm of First Amendment questions where Congress must base its conclusions upon substantial evidence, deference must be accorded to its findings as to the harm to be avoided and to the remedial measures adopted for that end, lest we infringe on traditional legislative authority to make predictive judgments when enacting nationwide regulatory policy.” Id. at 19596 (citations and internal quotation marks omitted). The Court emphasized that “[t]he Constitution gives to Congress the role of weighing conflicting evidence in the legislative process,” id. at 199, and that the Court is not to “reweigh the evidence de novo, or to replace Congress’ factual predictions with [its] own.” Id. at 211 (citation and internal quotation marks omitted).23
23 See also City of Boerne v. Flores, 521 U.S. 507, 531 (1997) (“Judicial deference, in most cases, is based not on the state of the legislative record Congress compiles but ‘on due regard for the decision of the body constitutionally appointed to decide.’” (quoting Oregon v. Mitchell, 400 U.S. 112, 207 (1970) (opinion of Harlan, J.)).

23
This case, like Turner, involves a constitutional challenge to a statutory scheme that is based on specific Congressional findings. Congress undertook an extensive effort to collect evidence and solicit the views of potentially affected parties (including both supporters and critics of § 5). Before the bill was introduced, the House held ten oversight hearings, at which it heard testimony from 39 witnesses, including “State and local elected officials, scholars, attorneys, and other representatives from the voting and civil rights community,” as well as receiving written testimony from the Department of Justice, governmental and non-governmental organizations and private citizens. H.R. REP. NO. 109-478, at 5 (2006). It then held two additional legislative hearings and received oral and written testimony from another seven witnesses. Id. The Senate held another ten hearings on the bill, and heard testimony from some 40 witnesses. S. REP. NO. 109-295, at 2 (2006). The views that Shelby County expresses here—that § 5 is no longer needed and that the coverage formula should be changed—were heard and considered in the legislative process. But when Congress ultimately weighed the evidence, it did not agree. It found that voting discrimination continues in the covered jurisdictions and that the coverage formula remains appropriate. There is an ample legislative record to support these conclusions. Under Turner, the Court should defer to Congress’s judgment.
It is also significant that the decision to reauthorize § 5 and retain the coverage formula received overwhelming bipartisan support in both houses of Congress—including broad support from the elected representatives of covered jurisdictions. The House of Representatives passed the 2006 Act by a vote of

24 390–33, while the Senate vote was unanimous, 98– 0.24 The Act was then signed into law by President George W. Bush—himself the former governor of a covered state. Members of Congress are elected representatives who are intimately familiar with voting patterns and electoral practices in the states and districts they represent. As such, they are uniquely qualified to make decisions about the extent of ongoing voting discrimination. Their judgments as to the continued need for § 5 and the proper coverage formula should be accorded the highest deference.
A. Congress Reasonably Concluded on an Extensive Record That Discriminatory Voting Practices Still Continue in the Covered Jurisdictions.
While Shelby County argues that Congress did not build a record to support its conclusion that § 5 is still needed in the covered jurisdictions, Congress in fact made specific findings regarding the continued need for § 5 based on an extensive legislative record. Congress’s conclusion that voting discrimination continues to be a serious problem in covered jurisdictions is reasonable and entitled to deference.
1. Congress found that “continued evidence of racially polarized voting in each of the jurisdictions covered by [§ 5] demonstrates that racial and language minorities remain politically vulnerable, warranting the continued protection of the Voting Rights Act of 1965.” Pub. L. No. 109-246, § 2(b)(3). The
24 152 CONG. REC. 14,303 (2006) (House vote); 152 CONG. REC. 15,325 (2006) (Senate vote). Shelby County’s representative in the House, Rep. Bachus, voted for the reauthorization, as did both Alabama senators, Sen. Shelby and Sen. Sessions.

25
House Report cited and relied on numerous court decisions finding legally significant racially polarized voting in several covered jurisdictions. H.R. REP. NO. 109-478, at 35. Shelby County does not dispute the continued presence of racially polarized voting. Instead, it argues (Pet. Br. at 31) that racially polarized voting is not important because it is not government discrimination.
Congress, however, reasonably concluded that racially polarized voting was an important indication of the continued need for § 5. While racially polarized voting is not itself unlawful, the House Report explained that “[t]he potential for discrimination in environments characterized by racially polarized voting is great.” H.R. REP. NO. 109-478, at 35 (emphasis added). When voting is polarized along racial lines, it facilitates the use of discriminatory electoral practices by the majority to limit the minority’s voting power and political influence. Absent racially polarized voting, there is much less likelihood of discrimination. Thus Congress reasonably placed great weight on evidence that voting in the covered jurisdictions continues to be polarized along racial lines.
2. Congress also found that “the hundreds of objections interposed [and] requests for more information submitted followed by voting changes withdrawn from consideration by jurisdictions covered by [§ 5]” evidenced continued discrimination. Pub. L. No. 109246, § 2(b)(4)(A). The House Report noted that more objections were lodged between 1982 and 2004 than between 1965 and 1982 and that these objections “did not encompass minor inadvertent changes.” H.R. REP. NO. 109-478, at 21. It found that the voting changes devised by covered jurisdictions resembled the methods used in earlier years, including, “enact-

26 ing discriminatory redistricting plans; switching offices from elected to appointed positions; relocating polling places; enacting discriminatory annexations and deannexations; setting numbered posts; and changing elections from single member districts to at-large voting and implementing majority vote requirements.” Id. at 36. It cited numerous examples, including several from the post-2000 redistricting cycle. Id. at 36–40. And it found that these proposed changes were “calculated decisions to keep minority voters from fully participating in the political process,” showing that “attempts to discriminate persist and evolve, such that Section 5 is still needed to protect minority voters in the future.” Id. at 21.25 Shelby County largely ignores this evidence, instead arguing that the number of objections is small and the rate is declining. Pet. Br. at 29-30. But Congress reasonably looked at both the number of objections and the nature of the practices that were objected to, which supported its conclusion that § 5 was still necessary.
3. Congress also found that in addition to formal objections, requests by the Department of Justice for more information (“MIRs”) had “affected more than 800 additional voting changes that were submitted for preclearance, compelling covered jurisdictions to either alter the proposal or withdraw it from consideration altogether.” H.R. REP. NO. 109-478, at 40–41. Shelby County argues that this evidence is not important because an MIR does not show a constitutional violation. Pet. Br. at 30. But regardless of
25 See also H.R. REP. NO. 109-478, at 36 (“The Committee received testimony indicating that these changes were intentionally developed to keep minority voters and candidates from succeeding in the political process.”).

27
whether particular changes would have violated the Constitution, Congress could reasonably conclude that the fact that jurisdictions were withdrawing or modifying changes in response to inquiries from the Department of Justice showed that § 5 was continuing to play an important role in preventing jurisdictions from trying to implement potentially discriminatory changes in the first place.
4. Congress also looked at actions for judicial preclearance and found that “the number of requests for declaratory judgments denied by the United States District Court for the District of Columbia” evidenced continuing discrimination. Pub. L. No. 109-246, § 2(b)(4)(B). As the Court of Appeals noted, the evidence before Congress showed that plaintiffs either withdrew their proposed changes or lost on the merits in 25 declaratory judgment actions filed between 1982 and 2004, compared to 17 between 1966 and 1982. Shelby County ignores this evidence.
5. Congress also found that actions undertaken by the Department of Justice since 1982 to block enforcement of changes that had not been precleared evidenced continued discrimination. It noted that these enforcement actions had “prevented election practices, such as annexation, at-large voting, and the use of multi-member districts, from being enacted to dilute minority voting strength.” Pub. L. No. 109-246, § 2(b)(4)(A). The House Report cites numerous examples. H.R. REP. NO. 109-478, at 41–44. Shelby County argues that § 5 enforcement actions are not important because they only show that changes were not properly submitted for preclearance and that some of these changes may have been nondiscriminatory. Pet. Br. at 30 n.6. But the examples cited by Congress involve practices that are potentially

28
highly discriminatory and could have had a severe impact on minority voting rights.
In sum, Congress had an ample factual record to support its conclusion that § 5 is still needed in the covered jurisdictions. Even if the evidence could be read to support a different conclusion, the role of this Court is not to reweigh the evidence de novo but simply to determine whether Congress has drawn reasonable inferences based on substantial evidence. Congress’s conclusion that § 5 is necessary was reasonably based on a careful consideration of the record, and the Court should defer to that judgment.
B. Congress’s Decision To Retain the Existing Coverage Formula Was Reasonable.
In Northwest Austin, this Court expressed concern that § 5 “differentiates between the States, despite our historic tradition that all states enjoy equal sovereignty,” and questioned whether “the evil that § 5 is meant to address” is still “concentrated in the jurisdictions singled out for preclearance.” Nw. Austin, 557 U.S. at 203. Picking up on this theme, Shelby County argues that the coverage formula is no longer rational. But the legislative record shows that Congress reasonably concluded that voting discrimination was still concentrated in the jurisdictions subject to § 5 and that the existing coverage formula therefore remained appropriate. That conclusion is also entitled to deference.
1. Congress heard evidence that discriminatory practices are more common in covered jurisdictions than in non-covered jurisdictions. The most significant evidence is the study by Professor Ellen Katz

29 which was presented to the House.26 Professor Katz compared published § 2 decisions and concluded that of the 114 successful plaintiff outcomes, 64 originated in covered jurisdictions, even though these jurisdictions account for less than a quarter of the U.S population. She further found that § 2 plaintiffs from covered jurisdictions were more likely to prevail on discrimination claims than plaintiffs from noncovered jurisdictions; while 30% of lawsuits from non-covered jurisdictions produced a favorable result for the plaintiffs, the comparable figure from covered jurisdictions was 40.5%.27 The House Report cited and relied on Professor Katz’s findings as evidence that discrimination was more severe in the covered jurisdictions than in non-covered jurisdictions. H.R. REP. NO. 109-478, at 53.
Shelby County does not dispute the significance of the Katz study. Rather, it argues that Congress drew the wrong conclusions from the study, and offers an alternative analysis of the data. Pet. Br. at 4748. But it is not the role of this Court to reweigh the evidence that was before Congress. Congress examined the data and drew reasonable conclusions, and its judgment should not be second-guessed.
2. Congress did not reflexively reenact all provisions of the Voting Rights Act. It carefully considered the need for each provision and made adjustments
26 To Examine the Impact and Effectiveness of the Voting Rights Act: Hearing Before the Subcomm. on the Constitution of the House Comm. on the Judiciary, 109th Cong. 9641124 (2006). 27 Id. at 974.

30 where it considered them necessary.28 For example, Congress determined that the provisions relating to the appointment of federal examiners to monitor voting registration were outdated and repealed those provisions. Pub. L. No. 109-246, § 3(c); H.R. REP. NO. 109-478 at 6162.
Congress also gave careful consideration to whether changes should be made to the coverage formula. Rep. Norwood offered an amendment on the House floor that would have altered the formula so that coverage would be determined by voting and registration rates in the three most recent presidential elections.29 In response, the Chairman of the House Judiciary Committee, Rep. Sensenbrenner, stated that the amendment would “gut[] the Voting Rights Act” by “radically altering the coverage formula of the Voting Rights Act in a way that severs its connection to jurisdictions with proven discriminatory histories.”30 He explained:
“The existing formula triggering coverage under the Voting Rights Act is not at all outdated in any meaningful sense of the term, and States covered are not unfairly punished under the coverage formula. Sixteen States are covered in whole or in part under the temporary provisions
28 See H.R. REP. NO. 109-478 at 61 (“[T]he Committee recognizes that the electoral environment has evolved since 1965. . . . Recognizing these realities, the Committee amended and eliminated certain provisions to ensure that the VRA remains a relevant and effective remedy to the continued problems of discrimination in the 21st century.”). 29 152 CONG. REC. 14,273-74 (2006). 30 Id. at 14,274.

31 of the Voting Rights Act. The formula does not limit coverage to a particular region, but encompasses those States and jurisdictions where less than 50 percent of the citizens of voting age population registered or turned out to vote in 1964, 1968 or 1972.
“But coverage is not, and I repeat ‘not’ predicated on these statistics alone. States are not covered unless they applied discriminatory voting tests. And it was this aspect of the formula that brought these jurisdictions with the most serious histories of discrimination under Federal scrutiny.”31 Following debate, the Norwood amendment was soundly defeated, 31896.32 Thus the legislative record shows that Congress made a considered decision that the existing coverage formula remained appropriate. 3. Congress was aware of criticisms that the existing formula is both underinclusive and overinclusive. But this problem is inherent in any coverage formula that could possibly be devised (including the alternative proposed by Rep. Norwood). The approach taken by Congress was to continue to target the jurisdictions where discrimination has historically been most severe and where the evidence showed that there was still a strong potential for discrimination. To the extent that changes in coverage may be appropriate, Congress addressed this issue through the statute’s “bailout” and “bail-in” procedures. Bail-
31 Id. at 14,275. 32 Id. at 14,301.

32 in allows federal courts to subject particular jurisdictions to preclearance upon finding a Fourteenth or Fifteenth Amendment violation. See 42 U.S.C. § 1973a(c).33 Bailout, as amended by Congress in 1982, allows individual covered jurisdictions to obtain a declaratory judgment removing them from § 5 coverage if they can demonstrate a “clean” record for a period of 10 years Id. § 1973b(a).
Congress placed particular emphasis on the availability of bailout. The House Report noted that 11 counties had bailed out since the procedure was liberalized in 1982, and commented:
“The Committee was encouraged that the bailout requirements have been utilized by some jurisdictions, and believes that the success of those jurisdictions illustrates that: (1) covered status is neither permanent nor over-broad; and (2) covered status has been and continues to be within the control of the jurisdiction such that those jurisdictions that have a genuinely clean record and want to terminate coverage have the ability to do so.” H.R. REP. NO. 109-478 at 25.34
33 The Court of Appeals noted that Arkansas and New Mexico have been subjected to bail-in procedures, as have cities or counties in California, Florida, Nebraska, New Mexico, South Dakota and Tennessee. Pet. App. 61a-62a. See Jeffers v. Clinton, 740 F. Supp. 585, 626-27 (E.D. Ark, 1990) (imposing partial preclearance on Arkansas); Travis Crum, Note, The Voting Rights Act’s Secret Weapon: Pocket Trigger Litigation and Dynamic Preclearance, 119 YALE L.J. 1992, 2010 & nn.10008 (2010) (collecting cases). 34 See also H.R. REP. NO. 109-478 at 58 (“The Committee reiterates that termination of covered status has been and continues to be within the reach of compliant covered jurisdictions and

33 In short, Congress expected that jurisdictions with a clean record could and would avail themselves of bailout.
4. While it is true that § 5 differentiates between states, our Constitutional system has built-in safeguards that protect the states against discrimination by the federal government—most notably, the participation of state representatives in the Legislative Branch. In the Senate, where states are represented as distinct political entities and each state has an equal vote, the vote to approve the 2006 extension was unanimous, 980. While there was limited opposition in the House, the reauthorization nonetheless passed with overwhelming bipartisan support, 39033. There was not a single state, covered or uncovered, in which a majority of the House delegation voted against reauthorization. III. The Coverage of § 5 Will Likely Be Reduced
Over Time Through the Application of the Bailout Mechanism. Shelby County urges the Court to invalidate § 5 in its entirety. This would be a drastic action that would remove a vital tool for combatting discrimination from all covered jurisdictions, including those that have continued to engage in discriminatory practices or where there is a significant risk of backsliding. Rather than taking such a radical step, the Court should allow decisions about whether coverage should be maintained in individual jurisdictions to be made on a case-by-case basis through the bailout
hopes that more covered States and political subdivisions will take advantage of the process.”).

34
process, as Congress intended and as this Court did in Northwest Austin.
The bailout process is working just as Congress intended. Prior to 1982 only five bailout applications were granted. From 1982 through 2006 an additional 17 applications were granted. Since 2006 the rate of bailouts has increased substantially (no doubt due in part to the Court’s decision in Northwest Austin). A total of 25 bailout applications have been granted since 2006, including applications from covered jurisdictions in Alabama, California, Georgia, North Carolina, Texas and Virginia.35 These figures understate the impact of the bailout process because one application often covers many different political subdivisions. Of the 236 jurisdictions that have bailed out so far, 145 have occurred since 2006.36
Obtaining a bailout is not a difficult or expensive proposition for a jurisdiction that has maintained a clean record. The standards for bailout are well defined, and Congress heard evidence that “[f]or the vast majority of jurisdictions, the process is relatively straightforward and easy” and the criteria are “easily proven for jurisdictions that do not discriminate in their voting practices.”37 Since the procedure
35 In addition, an application by New Hampshire on behalf of itself and the 10 covered towns within the State is currently awaiting court approval. See New Hampshire v. Holder, No. 12cv-1854 (D.D.C.). 36 The figures in this paragraph are derived from the information on the Department of Justice website. See http://www.justice.gov/crt/about/vot/misc/sec_4.php (last visited Jan. 31, 2013). 37 Voting Rights Act: An Examination of the Scope and Criteria for Coverage Under the Special Provisions of the Act: Hearing

35
was liberalized in 1982, no bailout application has ever been denied.38 In short, there is every reason to expect that the number of successful bailout applications will continue to climb as the covered jurisdictions continue to make progress toward eliminating voting discrimination. This process will naturally reduce the coverage of § 5 over time. The Court should allow this process to proceed in the manner that Congress intended.
CONCLUSION The judgment of the Court of Appeals should be affirmed. Respectfully submitted,

LISA M. BORNSTEIN

MATTHEW M. HOFFMAN

THE LEADERSHIP CONFER- (Counsel of record)

ENCE ON CIVIL AND HUMAN RIGHTS 1629 K St. N.W. Washington, DC 20006 (202) 466-3311

STEPHEN J. POLLAK JOHN TOWNSEND RICH SIRISHA V. KALICHETI ELLA A. CAPONE GOODWIN PROCTER LLP

901 New York Ave., N.W.

Washington, DC 20001

(202) 346-4000

Counsel for Amici Curiae

February 1, 2013

Before the Subcomm. on the Constitution of the H. Comm. On the Judiciary, 109th Cong. 90 (2005). 38 J. Gerald Hebert, An Assessment of the Bailout Provisions of The Voting Rights Act, in VOTING RIGHTS ACT REAUTHORIZATION OF 2006: PERSPECTIVES ON DEMOCRACY, PARTICIPATION, AND POWER 257, 268 (Ana Henderson ed. 2007).

APPENDIX A The Leadership Conference on Civil and Human Rights Participating Member Organizations*
(Bold names denote Executive Committee member organizations)
A. Philip Randolph Institute AARP Advancement Project African Methodist Episcopal Church Alaska Federation of Natives Alliance for Retired Americans Alpha Kappa Alpha Sorority, Inc. Alpha Phi Alpha Fraternity, Inc. American-Arab Anti-Discrimination Committee American Association for Affirmative Action American Association of People with Disabili-
ties AAUW American Baptist Churches, U.S.A.-National Minis-
tries American Civil Liberties Union American Council of the Blind American Ethical Union
* Some member organizations are filing separate amicus briefs.

2a
American Federation of Government Employees American Federation of Labor-Congress of In-
dustrial Organizations American Federation of State, County & Mu-
nicipal Employees, AFL-CIO American Federation of Teachers, AFL-CIO American Friends Service Committee American Islamic Congress (AIC) American Jewish Committee American Nurses Association American Society for Public Administration American Speech-Language-Hearing Association Americans for Democratic Action Amnesty International USA Anti-Defamation League Appleseed Asian American Justice Center Asian Pacific American Labor Alliance Association for Education and Rehabilitation of the
Blind and Visually Impaired B’nai B’rith International Brennan Center for Justice at New York University
School of Law Building & Construction Trades Department, AFL-
CIO Center for Community Change Center for Responsible Lending

3a
Center for Women Policy Studies Children’s Defense Fund Church of the Brethren-World Ministries Commis-
sion Church Women United Coalition of Black Trade Unionists Common Cause Communications Workers of America Community Action Partnership Community Transportation Association of America Compassion & Choices DC Vote Delta Sigma Theta Sorority DEMOS: A Network for Ideas & Action Disability Rights Education and Defense Fund Division of Homeland Ministries-Christian Church
(Disciples of Christ) Epilepsy Foundation of America Episcopal Church-Public Affairs Office Equal Justice Society Evangelical Lutheran Church in America FairVote: The Center for Voting and Democracy Families USA Federally Employed Women Feminist Majority Friends Committee on National Legislation

4a
Gay, Lesbian and Straight Education Network (GLSEN)
General Board of Church & Society of the United Methodist Church
Global Rights: Partners for Justice GMP International Union Hip Hop Caucus Human Rights Campaign Human Rights First Immigration Equality Improved Benevolent & Protective Order of Elks of
the World International Association of Machinists and Aero-
space Workers International Association of Official Human Rights
Agencies International Brotherhood of Teamsters International Union, United Automobile, Aero-
space and Agricultural Implement Workers of America (UAW) Iota Phi Lambda Sorority, Inc. Japanese American Citizens League Jewish Council for Public Affairs Jewish Labor Committee Jewish Women International Judge David L. Bazelon Center for Mental Health Law

5a
Kappa Alpha Psi Fraternity Labor Council for Latin American Advancement Laborers’ International Union of North America Lambda Legal LatinoJustice PRLDEF Lawyers’ Committee for Civil Rights Under
Law League of United Latin American Citizens League of Women Voters of the United States Legal Aid Society – Employment Law Center Legal Momentum Mashantucket Pequot Tribal Nation Matthew Shepard Foundation Mexican American Legal Defense and Educa-
tional Fund Na’Amat USA NAACP NAACP Legal Defense and Educational Fund,
Inc. NALEO Educational Fund National Alliance of Postal & Federal Employees National Association for Equal Opportunity in High-
er Education National Association of Colored Women’s Clubs, Inc. National Association of Community Health Centers National Association of Consumer Advocates (NACA)

6a
National Association of Human Rights Workers National Association of Negro Business & Profes-
sional Women’s Clubs, Inc. National Association of Neighborhoods National Association of Social Workers 9 to 5 National Association of Working Women National Bar Association National Black Caucus of State Legislators National Black Justice Coalition National CAPACD – National Coalition For Asian
Pacific American Community Development National Center for Transgender Equality National Center on Time & Learning National Coalition for the Homeless National Coalition on Black Civic Participation National Coalition to Abolish the Death Penalty National Committee on Pay Equity National Community Reinvestment Coalition National Conference of Black Mayors, Inc. National Congress for Puerto Rican Rights National Congress of American Indians National Consumer Law Center National Council of Churches of Christ in the U.S. National Council of Jewish Women National Council of La Raza National Council of Negro Women

7a
National Council on Independent Living National Disability Rights Network National Education Association National Employment Lawyers Association National Fair Housing Alliance National Farmers Union National Federation of Filipino American Associa-
tions National Gay & Lesbian Task Force National Health Law Program National Hispanic Media Coalition National Immigration Forum National Immigration Law Center National Korean American Service and Education
Consortium, Inc. (NAKASEC) National Latina Institute for Reproductive Health National Lawyers Guild National Legal Aid & Defender Association National Low Income Housing Coalition National Organization for Women National Partnership for Women & Families National Senior Citizens Law Center National Sorority of Phi Delta Kappa, Inc. National Urban League National Women’s Law Center National Women’s Political Caucus

8a
Native American Rights Fund Newspaper Guild OCA (formerly known as Organization of Chinese
Americans) Office of Communications of the United Church of
Christ, Inc. Omega Psi Phi Fraternity, Inc. Open Society Policy Center ORT America OutServe-SLDN Paralyzed Veterans of America Parents, Families, Friends of Lesbians and Gays People for the American Way Phi Beta Sigma Fraternity, Inc. Planned Parenthood Federation of America, Inc. PolicyLink Poverty & Race Research Action Council (PRRAC) Presbyterian Church (USA) Pride at Work Progressive National Baptist Convention Project Vote Public Advocates Religious Action Center of Reform Judaism Retail Wholesale & Department Store Union, AFL-
CIO SAALT (South Asian Americans Leading Together)

9a
Secular Coalition for America Service Employees International Union Sierra Club Sigma Gamma Rho Sorority, Inc. Sikh American Legal Defense and Education Fund Sikh Coalition Southeast Asia Resource Action Center (SEARAC) Southern Christian Leadership Conference Southern Poverty Law Center Teach For America The Association of Junior Leagues International, Inc The Association of University Centers on Disabilities The National Conference for Community and Justice The National PTA TransAfrica Forum Union for Reform Judaism Unitarian Universalist Association UNITE HERE! United Brotherhood of Carpenters and Joiners of
America United Church of Christ-Justice and Witness Minis-
tries United Farm Workers of America (UFW) United Food and Commercial Workers International
Union United Mine Workers of America

10a
United States International Council on Disabilities United States Students Association United Steelworkers of America United Synagogue of Conservative Judaism Women of Reform Judaism Workers Defense League Workmen’s Circle YMCA of the USA, National Board YWCA USA Zeta Phi Beta Sorority, Inc.

APPENDIX B Additional Signatories In addition to The Leadership Conference and The Education Fund, the following organizations are signatories to this Brief:
American-Arab Anti-Discrimination Committee The American-Arab Anti-Discrimination Commit-
tee (“ADC”) is a civil rights organization committed to defending the rights of people of Arab descent and promoting their rich cultural heritage. ADC is the largest Arab-American grassroots civil rights organization in the United States. ADC is at the forefront in addressing discrimination and bias against Arab Americans. Through its Legal Department, ADC offers counseling in cases of discrimination and defamation, and provides assistance in selected litigation. ADC strongly urges the Court to find Section 5 of the Voting Rights Act constitutional. It is apparent that Section 5 provides the necessary safeguards to prevent discrimination. States with high concentrations of Arab Americans have encountered racial polarization, which in turn affects the community’s ability to vote and feelings of comfort when voting. ADC has been, and continues to be, a significant force in securing justice for members of this community.
AARP AARP is a nonpartisan, nonprofit organization
with a membership. AARP strives to enable people age 50+ to secure independence, choice and control in ways beneficial and affordable to them and to society as a whole. In a variety of ways, including legal ad-

2b vocacy as an amicus curiae, AARP supports the fundamental right to vote. To that end, AARP advocates for interpretation and enforcement of federal and state laws so as to encourage robust political engagement, including voting by all persons eligible to do so. AARP strongly favors removal of unfair and unnecessary impediments to electoral participation, including measures that diminish the voting rights of minority citizens.
Anti-Defamation League The Anti-Defamation League (“ADL”) was founded
in 1913—at a time when anti-Semitism was rampant in the United States—to advance good will and mutual understanding among Americans of all creeds and races, and to combat racial and religious prejudice in the United States. ADL is vitally interested in protecting the civil rights of all persons, whether they are members of the minority or the majority, and in ensuring that each individual receives equal treatment under the law regardless of race, ethnicity, or religion. ADL recognizes the Voting Rights Act of 1965 as one of the most important and most effective pieces of civil rights legislation ever passed.
Advancement Project Advancement Project (“AP”), is a nonpartisan, not
for profit, national racial justice organization. In partnership with local communities, AP engages in legal advocacy to achieve universal opportunity and a just democracy. AP has a voter protection program that focuses on litigation, policy, coalition-building, and voter education and community empowerment strategies. In 2012, AP utilized Section 5 to protect

3b against retrogression of voting rights for African American and Latino communities in Florida and Texas. The continued viability of Section 5 is essential to AP’s voter protection work in these and other covered jurisdictions. Thus, the issues in this case are directly related to AP’s work to protect the right to vote and ensure that elections are free, fair, and accessible.
American Federation of Labor and Congress of Industrial Organizations
The American Federation of Labor and Congress of Industrial Organizations (“AFL-CIO”) is a federation of 56 national and international labor organizations with a total membership of approximately 12.2 million working men and women throughout the Nation, including in every jurisdiction that is covered by Section 5 of the Voting Rights Act. The AFL-CIO represents the interests of working families, many of whom reside in jurisdictions covered by section 5 and are affected by changes to election laws. The AFLCIO has long been active in legislative efforts and litigation to protect and advance the right to vote and to keep elections fair and free from discrimination. The AFL-CIO has a strong interest in the Court upholding and respecting Congress’s legislative decisions in 2006 regarding the reauthorization of the Voting Rights Act.
American Jewish Committee American Jewish Committee (“AJC”) is a national
organization of Jewish Americans founded in 1906 committed to, among other concerns, assuring equal protection of law and equal rights of citizenship for

4b all Americans, including the right to vote. Long before enactment of the 1965 Voting Rights Act, AJC sought effective federal protection of the right to vote.
The Center for American Progress The Center for American Progress is an independ-
ent nonpartisan educational institute dedicated to improving the lives of Americans through progressive ideas and action. Building on the achievements of progressive pioneers such as Teddy Roosevelt and Martin Luther King, the Center’s work addresses 21st-century challenges, including combating racial and ethnic discrimination. The issues of this case are directly related to the work of the Center for American Progress work in these areas.
Charles Hamilton Houston Institute for Racial Justice
Established in the fall of 2005 at Harvard Law School, the Charles Hamilton Houston Institute for Race and Justice (“CHHIRJ”) seeks to honor the extraordinary contributions of one of the great lawyers of the twentieth century. Charles Hamilton Houston dedicated his life to using the law to address matters of racial discrimination. CHHIRJ is committed to continuing Mr. Houston’s legacy through research, instruction, and advocacy. CHHIRJ, through research and litigation, seeks to address various issues of disparity and racial justice. The issue of ensuring the voting rights of minority group members protected under Section 5 of the Voting Rights Act is directly related to the Institute’s mission.

5b
Church Women United Church Women United is a national volunteer
Christian ecumenical women’s organization that works to prevent discrimination and promotes actions and programs that embody racial, ethnic, and religious diversity and inclusion. The issues in this case are directly related to Church Women United’s work in these areas.
Common Cause Common Cause is a nonpartisan, nonprofit advoca-
cy organization founded in 1970 as a vehicle for citizens to make their voices heard in the political process and to hold their elected leaders accountable to the public interest. Today, Common Cause is one of the largest nonprofit organizations working for accountability and reform in America. With over 400,000 members and supporters, Common Cause advocates for honest and open government. As part of its core mission, Common Cause works at the state and federal levels to defend the bedrock freedom of our democracy: casting a vote and having it counted, free from discrimination, suppressive tactics and intimidation. Common Cause is a leading partner organization of the national nonpartisan “Election Protection” coalition, which provides nonpartisan information to voters about the election process. Common Cause has a long history of supporting the Voting Rights Act, including its renewal in 2006 and 1982. Common Cause’s former chairman emeritus, the late Archibald Cox, defended the constitutionality of the Voting Rights Act before this Court in 1966.

6b Dēmos
Dēmos is a national public policy center working for an America where we all have an equal say in our democracy and an equal chance in our economy. Removing barriers to political participation and ensuring full representation of America’s diverse citizenry are central to Dēmos’ mission. Dēmos actively supported Congress’ 2006 reauthorization of the protections of Section 5 of the Voting Rights Act and believes those protections remain indispensable to the goal of full and equal access to political participation.
The Fair Elections Legal Network The Fair Elections Legal Network (“FELN”) is a
national, nonpartisan advocacy organization whose overall mission is to remove barriers to registration and voting for traditionally underrepresented constituencies and protect their ability to exercise the right to vote. The issues of this case are directly related to FELN's work in these areas.
The Hip Hop Caucus The Hip Hop Caucus is a national membership or-
ganization working to combat discrimination and promote inclusion, particularly on behalf of urban and hip hop communities. The issues of this case are directly related to Hip Hop Caucus' work in these areas; voter suppression laws were the main target of its Respect My Vote! Campaign in which the Caucus aimed to educate urban voters (mostly 18-40) so as to help them exercise their right to vote in spite of suppression efforts. The Hip Hop Caucus uses its high profile platform of hip hop connections and networks to bring attention to issues that affect urban com-

7b munities, especially where there are injustices. It is honored to join forces with other leading civil rights organizations in a concerted effort to address issues surrounding the voting rights of the underrepresented, namely African Americans.
The Lawyers’ Committee for Civil Rights-San Francisco Bay Area
The Lawyers’ Committee for Civil Rights of the San Francisco Bay Area (“LCCR-SF”) was founded after the assassination of Dr. Martin Luther King, Jr. in 1968 by leading members of the San Francisco Bar. LCCR-SF is a civil rights and legal services organization that advances, protects and promotes the rights of communities of color and immigrants and refugees, with a specific focus on low-income communities and a long-standing commitment to African Americans. Its core programs remain focused on addressing structural racism and ensuring that everyone has equal access to justice. LCCR-SF continues to expand on its legacy as a leader in the development, advocacy, and advancement of voting rights protections, both state and federal, through ongoing contributions to scholarly, litigation and community outreach and education efforts. The issues in this case are directly related to LCCR-SF’s work in these areas.
The League of Women Voters The League of Women Voters of the United States
is a nonpartisan, community-based organization that promotes political responsibility by encouraging Americans to participate actively and knowledgeably in government and the electoral process. Founded in

8b 1920 as an outgrowth of the struggle to win voting rights for women, the League now has more than 140,000 members and supporters, and is organized in approximately 800 communities and in every state. For more than 90 years, the League has worked to protect every American citizen’s right to vote. The League has been a leader in seeking to remove the unnecessary barriers that too many Americans face in registering to vote and casting a ballot, and the League continues to reach out to increase political participation among women, youth, and traditionally underrepresented communities, including racial and ethnic minorities and new citizens. The League has long supported the Voting Rights Act as a fundamental guarantee of the rights of American citizenship.
National Association for Equal Opportunity in Higher Education
The National Association for Equal Opportunity in Higher Education (“NAFEO”), 209 3rd Street, S.E., Washington, D.C., was founded in 1969 as the nonprofit, voluntary, independent association of the 105 historically black colleges and universities (“HBCUs”) and other equal educational opportunity institutions in 25 states, the District of Columbia, and Virgin Islands. NAFEO institutions today include 92 Predominantly Black Institutions (“PBIs”). HBCUs and PBIs enroll 500,000 students, have 52,000 faculty and 5 million alumni, most of whose opportunities and successes are as the direct result of the Voting Rights Act. NAFEO was organized to articulate the need for a higher education system where race, income, and previous education are not the determinants of either the quality or quantity of

9b higher education, and to tear down barriers to the full and unfettered participation of African Americans and other Americans who were historically disenfranchised in the educational, economic and civic life of this nation. NAFEO is not only committed to these goals, but its members are committed in terms of their resources, human and financial, to achieving these goals. NAFEO views the full and fair enforcement under the Voting Rights Act as well as its extension and expansion as essential to the realization of these goals.
The National Association of Social Workers The National Association of Social Workers
(“NASW”) is the largest professional membership organization of social workers in the world with nearly 145,000 social workers and 56 chapters. The NASW, Alabama Chapter has 1,148 members. With the purpose of developing and disseminating high standards of practice while strengthening and unifying the social work profession as a whole, NASW promulgates professional standards and criteria, conducts research, publishes studies of interest to the profession, provides continuing education and enforces the NASW Code of Ethics. The National Association of Social Workers recognizes that “those who are young, not white, poor and less educated are disproportionately unlikely to vote . . . [and] that increasing voter participation for these groups . . . is important as those elected will make decisions on policies that affect [the] lives of society’s most vulnerable populations” (NASW, Voter Participation in SOCIAL WORK SPEAKS 346, 348 (9th ed., 2012; approved by the NASW Delegate Assembly in August 2011). NASW supports full implementation and enforce-

10b ment of federal voting rights laws, including the Voting Rights Act of 1965, as amended in 2006. SOCIAL WORK SPEAKS, supra, at 349-350.
National Black Law Students Association The National Black Law Students Association
(“NBLSA”) is a membership organization formed in 1968 to promote the educational, professional, political, and social objectives of Black law students. Today, NBLSA is the largest student-run organization in the United States, with nearly 6,000 members, over 200 chapters in our nation‘s law schools, a growing pre-law division, and six international chapters or affiliates. NBLSA has an interest in this case because one of the purposes of NBLSA is to utilize the collective resources of the member chapters to influence the legal community by bringing about meaningful legal and political change that addresses the needs and concerns of the Black community. In renewing the Voting Rights Act, Congress gathered extensive evidence of a continuing need for prophylactic legislation that ensures that the right to vote is not abridged on account of race. Without section 5, there is a risk that much of the political and social progress made since the passage of the Voting Rights Act would be lost.
National Council of Jewish Women The National Council of Jewish Women (“NCJW”)
is a grassroots organization of 90,000 volunteers and advocates who turn progressive ideals into action. Inspired by Jewish values, NCJW strives for social justice by improving the quality of life for women, children, and families and by safeguarding individu-

11b al rights and freedoms. NCJW's Resolutions state that NCJW resolves to work for "Election laws, policies, and practices that ensure easy and equitable access to the electoral process and that every vote counts and can be verified.” In addition its principles state that “A democratic society and its people must value diversity and promote mutual understanding and respect for all” and “discrimination on the basis of race, gender, national origin, ethnicity, religion, age, disability, marital status, sexual orientation, or gender identity must be eliminated.” Consistent with its Principles and Resolutions, NCJW joins this brief.
National Education Association The National Education Association (“NEA”) is a
nationwide employee organization with more than three million members, the vast majority of whom are employed by public school districts, colleges, and universities. NEA is strongly committed to equal voter access and enfranchisement. To that end, NEA vigorously supports the Voting Rights Act, including its 2006 reauthorization.
National Urban League The National Urban League, founded in 1910, is an
historic national civil rights organization dedicated to economic empowerment, combating discrimination, and promoting inclusion in order to elevate the standard of living in significantly underserved urban communities. The organization and its 98 local affiliates work through program development, public policy, research, advocacy, civic engagement, and provide direct services—including education, employment training and placement, health services, and

12b housing—that improve the lives of over 2.6 million people. The National Urban League has historically fought for and supported the Voting Rights Act of 1965, including the Congressional decision in 2006 to extend § 5 of the Voting Rights Act for 25 years. Given its history and direct work in local communities, the National Urban League finds that the single issue that arguably stands to have the greatest impact on the future of Black America is the right to vote and have that vote counted. Indeed, more than half a century after the Voting Rights Act of 1965 was passed, protecting the Constitutional right to vote from poll taxes, literacy tests or other barriers, we face today a nationwide strategic campaign to suppress the vote of African Americans. As a 103-year old civil rights and human services organization, the National Urban League remains committed to this fight. Protecting each individual’s fundamental right to vote, and the implications of the power of the vote, is inextricably linked to every individual’s economic and social wellbeing and essential to preserving the very functioning of our democracy. The issues of this case are therefore especially and directly related to the work of the National Urban League.
Project Vote Project Vote, Inc. is a national nonpartisan, non-
profit 501(c)(3) based in Washington, DC that promotes voting in historically underrepresented communities. Through its research, advocacy, and direct legal services, Project Vote works to ensure that these constituencies are able to fully participate in American civic life by registering and voting. Since its founding, Project Vote has assisted millions of low-income and minority citizens nationwide with

13b voter registration, trained hundreds of low-income and minority organizers, and provided nonpartisan voter education on issues of voting rights and election administration.
Public Advocates, Inc. Public Advocates Inc. is a California-based civil
rights law firm and advocacy organization that challenges the systemic causes of poverty and racial discrimination by strengthening community voices in public policy and achieving tangible legal victories. Public Advocates spurs change through collaboration with grassroots groups representing low-income communities, people of color and immigrants, combined with strategic policy reform, media advocacy and litigation. Since its founding in 1971, Public Advocates has engaged in a wide range of cutting edge civil rights issues from school finance, urban development, transportation policy, and climate justice, to language access, employment discrimination, and health services disparities. The issues of this case are directly related to Public Advocates’ civil rights mission and work.
Service Employees International Union Service Employees International Union (“SEIU”) is
one of the largest unions in North America. It represents over 2.1 million workers in service industries throughout the United States and Canada. Directly and through its affiliated local unions, SEIU activity participates in federal elections and has historically promoted legislation designed to assure full participation in the political process to citizens without regard to race, gender, sexual orientation or other clas-

14b sifications that should have no bearing on such participation. Because SEIU has many members who reside in jurisdictions currently subject to section 5 of the Voting Rights Act who wish to participate in a fair and open electoral process, SEIU has a substantial interest in the outcome of this litigation.
Southern Poverty Law Center The Southern Poverty Law Center, founded in
1971 and based in Montgomery, Alabama, has litigated numerous civil rights cases on behalf of minorities, women, prisoners, and other victims of discrimination. The Center also founded and operates Teaching Tolerance, a national program designed to reduce prejudice, improve intergroup relations and support equitable school experiences for our nation’s children. Although the Center’s legal work is concentrated in the South, its attorneys appear in courts throughout the country to ensure that all people receive equal and just treatment under federal and state law. The issues of this case are directly related to the Southern Poverty Law Center’s purpose and mission.
Union for Reform Judaism Central Conference of American Rabbis Women of Reform Judaism
The Union for Reform Judaism has 900 congregations across North America, and these congregations include 1.5 million Reform Jews. The membership of the Central Conference of American Rabbis includes more than 2000 Reform rabbis. The Women of Reform Judaism represents more than 65,000 women in nearly 500 women’s groups in North America and

15b around the world. Discrimination has no place in our society, including at the ballot box. Voting is the foundation of American democracy and the most important tool Americans have to influence our government’s policies. We must not allow our nation's commitment to voting rights to be diminished.

 
 (Slip Opinion)

OCTOBER TERM, 2012

1

Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES

Syllabus
SHELBY COUNTY, ALABAMA v. HOLDER, ATTORNEY GENERAL, ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 12–96. Argued February 27, 2013—Decided June 25, 2013
The Voting Rights Act of 1965 was enacted to address entrenched racial discrimination in voting, “an insidious and pervasive evil which had been perpetuated in certain parts of our country through unremitting and ingenious defiance of the Constitution.” South Carolina v. Katzenbach, 383 U. S. 301, 309. Section 2 of the Act, which bans any “standard, practice, or procedure” that “results in a denial or abridgement of the right of any citizen . . . to vote on account of race or color,” 42 U. S. C. §1973(a), applies nationwide, is permanent, and is not at issue in this case. Other sections apply only to some parts of the country. Section 4 of the Act provides the “coverage formula,” defining the “covered jurisdictions” as States or political subdivisions that maintained tests or devices as prerequisites to voting, and had low voter registration or turnout, in the 1960s and early 1970s. §1973b(b). In those covered jurisdictions, §5 of the Act provides that no change in voting procedures can take effect until approved by specified federal authorities in Washington, D. C. §1973c(a). Such approval is known as “preclearance.” The coverage formula and preclearance requirement were initially set to expire after five years, but the Act has been reauthorized several times. In 2006, the Act was reauthorized for an additional 25 years, but the coverage formula was not changed. Coverage still turned on whether a jurisdiction had a voting test in the 1960s or 1970s, and had low voter registration or turnout at that time. Shortly after the 2006 reauthorization, a Texas utility district sought to bail out from the Act’s coverage and, in the alternative, challenged the Act’s constitutionality. This Court resolved the challenge on statutory grounds, but expressed serious doubts about the Act’s con-

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tinued constitutionality. See Northwest Austin Municipal Util. Dist. No. One v. Holder, 557 U. S. 193.
Petitioner Shelby County, in the covered jurisdiction of Alabama, sued the Attorney General in Federal District Court in Washington, D. C., seeking a declaratory judgment that sections 4(b) and 5 are facially unconstitutional, as well as a permanent injunction against their enforcement. The District Court upheld the Act, finding that the evidence before Congress in 2006 was sufficient to justify reauthorizing §5 and continuing §4(b)’s coverage formula. The D. C. Circuit affirmed. After surveying the evidence in the record, that court accepted Congress’s conclusion that §2 litigation remained inadequate in the covered jurisdictions to protect the rights of minority voters, that §5 was therefore still necessary, and that the coverage formula continued to pass constitutional muster.
Held: Section 4 of the Voting Rights Act is unconstitutional; its formula can no longer be used as a basis for subjecting jurisdictions to preclearance. Pp. 9–25. (a) In Northwest Austin, this Court noted that the Voting Rights Act “imposes current burdens and must be justified by current needs” and concluded that “a departure from the fundamental principle of equal sovereignty requires a showing that a statute’s disparate geographic coverage is sufficiently related to the problem that it targets.” 557 U. S., at 203. These basic principles guide review of the question presented here. Pp. 9–17. (1) State legislation may not contravene federal law. States retain broad autonomy, however, in structuring their governments and pursuing legislative objectives. Indeed, the Tenth Amendment reserves to the States all powers not specifically granted to the Federal Government, including “the power to regulate elections.” Gregory v. Ashcroft, 501 U. S. 452, 461–462. There is also a “fundamental principle of equal sovereignty” among the States, which is highly pertinent in assessing disparate treatment of States. Northwest Austin, supra, at 203. The Voting Rights Act sharply departs from these basic principles. It requires States to beseech the Federal Government for permission to implement laws that they would otherwise have the right to enact and execute on their own. And despite the tradition of equal sovereignty, the Act applies to only nine States (and additional counties). That is why, in 1966, this Court described the Act as “stringent” and “potent,” Katzenbach, 383 U. S., at 308, 315, 337. The Court nonetheless upheld the Act, concluding that such an “uncommon exercise of congressional power” could be justified by “exceptional conditions.” Id., at 334. Pp. 9–12. (2) In 1966, these departures were justified by the “blight of ra-

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cial discrimination in voting” that had “infected the electoral process in parts of our country for nearly a century,” Katzenbach, 383 U. S., at 308. At the time, the coverage formula—the means of linking the exercise of the unprecedented authority with the problem that warranted it—made sense. The Act was limited to areas where Congress found “evidence of actual voting discrimination,” and the covered jurisdictions shared two characteristics: “the use of tests and devices for voter registration, and a voting rate in the 1964 presidential election at least 12 points below the national average.” Id., at 330. The Court explained that “[t]ests 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 affect the number of actual voters.” Ibid. The Court therefore concluded that “the coverage formula [was] rational in both practice and theory.” Ibid. Pp. 12–13.
(3) Nearly 50 years later, things have changed dramatically. Largely because of the Voting Rights Act, “[v]oter turnout and registration rates” in covered jurisdictions “now approach parity. Blatantly discriminatory evasions of federal decrees are rare. And minority candidates hold office at unprecedented levels.” Northwest Austin, supra, at 202. The tests and devices that blocked ballot access have been forbidden nationwide for over 40 years. Yet the Act has not eased §5’s restrictions or narrowed the scope of §4’s coverage formula along the way. Instead those extraordinary and unprecedented features have been reauthorized as if nothing has changed, and they have grown even stronger. Because §5 applies only to those jurisdictions singled out by §4, the Court turns to consider that provision. Pp. 13–17.
(b) Section 4’s formula is unconstitutional in light of current conditions. Pp. 17–25.
(1) In 1966, the coverage formula was “rational in both practice and theory.” Katzenbach, supra, at 330. It looked to cause (discriminatory tests) and effect (low voter registration and turnout), and tailored the remedy (preclearance) to those jurisdictions exhibiting both. By 2009, however, the “coverage formula raise[d] serious constitutional questions.” Northwest Austin, supra, at 204. Coverage today is based on decades-old data and eradicated practices. The formula captures States by reference to literacy tests and low voter registration and turnout in the 1960s and early 1970s. But such tests have been banned for over 40 years. And voter registration and turnout numbers in covered States have risen dramatically. In 1965, the States could be divided into those with a recent history of voting tests and low voter registration and turnout and those without those char-

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acteristics. Congress based its coverage formula on that distinction. Today the Nation is no longer divided along those lines, yet the Voting Rights Act continues to treat it as if it were. Pp. 17–18.
(2) The Government attempts to defend the formula on grounds that it is “reverse-engineered”—Congress identified the jurisdictions to be covered and then came up with criteria to describe them. Katzenbach did not sanction such an approach, reasoning instead that the coverage formula was rational because the “formula . . . was relevant to the problem.” 383 U. S., at 329, 330. The Government has a fallback argument—because the formula was relevant in 1965, its continued use is permissible so long as any discrimination remains in the States identified in 1965. But this does not look to “current political conditions,” Northwest Austin, supra, at 203, instead relying on a comparison between the States in 1965. But history did not end in 1965. In assessing the “current need[ ]” for a preclearance system treating States differently from one another today, history since 1965 cannot be ignored. The Fifteenth Amendment is not designed to punish for the past; its purpose is to ensure a better future. To serve that purpose, Congress—if it is to divide the States—must identify those jurisdictions to be singled out on a basis that makes sense in light of current conditions. Pp. 18–21.
(3) Respondents also rely heavily on data from the record compiled by Congress before reauthorizing the Act. Regardless of how one looks at that record, no one can fairly say that it shows anything approaching the “pervasive,” “flagrant,” “widespread,” and “rampant” discrimination that clearly distinguished the covered jurisdictions from the rest of the Nation in 1965. Katzenbach, supra, at 308, 315, 331. But a more fundamental problem remains: Congress did not use that record to fashion a coverage formula grounded in current conditions. It instead re-enacted a formula based on 40-year-old facts having no logical relation to the present day. Pp. 21–22.
679 F. 3d 848, reversed.
ROBERTS, C. J., delivered the opinion of the Court, in which SCALIA, KENNEDY, THOMAS, and ALITO, JJ., joined. THOMAS, J., filed a concurring opinion. GINSBURG, J., filed a dissenting opinion, in which BREYER, SOTOMAYOR, and KAGAN, JJ., joined.

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NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 12–96
_________________
SHELBY COUNTY, ALABAMA, PETITIONER v. ERIC H. HOLDER, JR., ATTORNEY GENERAL, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
[June 25, 2013]
CHIEF JUSTICE ROBERTS delivered the opinion of the Court.
The Voting Rights Act of 1965 employed extraordinary measures to address an extraordinary problem. Section 5 of the Act required States to obtain federal permission before enacting any law related to voting—a drastic departure from basic principles of federalism. And §4 of the Act applied that requirement only to some States—an equally dramatic departure from the principle that all States enjoy equal sovereignty. This was strong medicine, but Congress determined it was needed to address entrenched racial discrimination in voting, “an insidious and pervasive evil which had been perpetuated in certain parts of our country through unremitting and ingenious defiance of the Constitution.” South Carolina v. Katzenbach, 383 U. S. 301, 309 (1966). As we explained in upholding the law, “exceptional conditions can justify legislative measures not otherwise appropriate.” Id., at 334. Reflecting the unprecedented nature of these measures, they were scheduled to expire after five years. See Voting Rights Act of 1965, §4(a), 79 Stat. 438.

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Nearly 50 years later, they are still in effect; indeed, they have been made more stringent, and are now scheduled to last until 2031. There is no denying, however, that the conditions that originally justified these measures no longer characterize voting in the covered jurisdictions. By 2009, “the racial gap in voter registration and turnout [was] lower in the States originally covered by §5 than it [was] nationwide.” Northwest Austin Municipal Util. Dist. No. One v. Holder, 557 U. S. 193, 203–204 (2009). Since that time, Census Bureau data indicate that AfricanAmerican voter turnout has come to exceed white voter turnout in five of the six States originally covered by §5, with a gap in the sixth State of less than one half of one percent. See Dept. of Commerce, Census Bureau, Reported Voting and Registration, by Sex, Race and Hispanic Origin, for States (Nov. 2012) (Table 4b).
At the same time, voting discrimination still exists; no one doubts that. The question is whether the Act’s extraordinary measures, including its disparate treatment of the States, continue to satisfy constitutional requirements. As we put it a short time ago, “the Act imposes current burdens and must be justified by current needs.” Northwest Austin, 557 U. S., at 203.
I A
The Fifteenth Amendment was ratified in 1870, in the wake of the Civil War. It provides that “[t]he right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude,” and it gives Congress the “power to enforce this article by appropriate legislation.”
“The first century of congressional enforcement of the Amendment, however, can only be regarded as a failure.” Id., at 197. In the 1890s, Alabama, Georgia, Louisiana,

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Mississippi, North Carolina, South Carolina, and Virginia began to enact literacy tests for voter registration and to employ other methods designed to prevent AfricanAmericans from voting. Katzenbach, 383 U. S., at 310. Congress passed statutes outlawing some of these practices and facilitating litigation against them, but litigation remained slow and expensive, and the States came up with new ways to discriminate as soon as existing ones were struck down. Voter registration of African-Americans barely improved. Id., at 313–314.
Inspired to action by the civil rights movement, Congress responded in 1965 with the Voting Rights Act. Section 2 was enacted to forbid, in all 50 States, any “standard, practice, or procedure . . . imposed or applied . . . to deny or abridge the right of any citizen of the United States to vote on account of race or color.” 79 Stat. 437. The current version forbids any “standard, practice, or procedure” that “results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color.” 42 U. S. C. §1973(a). Both the Federal Government and individuals have sued to enforce §2, see, e.g., Johnson v. De Grandy, 512 U. S. 997 (1994), and injunctive relief is available in appropriate cases to block voting laws from going into effect, see 42 U. S. C. §1973j(d). Section 2 is permanent, applies nationwide, and is not at issue in this case.
Other sections targeted only some parts of the country. At the time of the Act’s passage, these “covered” jurisdictions were those States or political subdivisions that had maintained a test or device as a prerequisite to voting as of November 1, 1964, and had less than 50 percent voter registration or turnout in the 1964 Presidential election. §4(b), 79 Stat. 438. Such tests or devices included literacy and knowledge tests, good moral character requirements, the need for vouchers from registered voters, and the like. §4(c), id., at 438–439. A covered jurisdiction could “bail

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out” of coverage if it had not used a test or device in the preceding five years “for the purpose or with the effect of denying or abridging the right to vote on account of race or color.” §4(a), id., at 438. In 1965, the covered States included Alabama, Georgia, Louisiana, Mississippi, South Carolina, and Virginia. The additional covered subdivisions included 39 counties in North Carolina and one in Arizona. See 28 CFR pt. 51, App. (2012).
In those jurisdictions, §4 of the Act banned all such tests or devices. §4(a), 79 Stat. 438. Section 5 provided that no change in voting procedures could take effect until it was approved by federal authorities in Washington, D. C.— either the Attorney General or a court of three judges. Id., at 439. A jurisdiction could obtain such “preclearance” only by proving that the change had neither “the purpose [nor] the effect of denying or abridging the right to vote on account of race or color.” Ibid.
Sections 4 and 5 were intended to be temporary; they were set to expire after five years. See §4(a), id., at 438; Northwest Austin, supra, at 199. In South Carolina v. Katzenbach, we upheld the 1965 Act against constitutional challenge, explaining that it was justified to address “voting discrimination where it persists on a pervasive scale.” 383 U. S., at 308.
In 1970, Congress reauthorized the Act for another five years, and extended the coverage formula in §4(b) to jurisdictions that had a voting test and less than 50 percent voter registration or turnout as of 1968. Voting Rights Act Amendments of 1970, §§3–4, 84 Stat. 315. That swept in several counties in California, New Hampshire, and New York. See 28 CFR pt. 51, App. Congress also extended the ban in §4(a) on tests and devices nationwide. §6, 84 Stat. 315.
In 1975, Congress reauthorized the Act for seven more years, and extended its coverage to jurisdictions that had a voting test and less than 50 percent voter registration or

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turnout as of 1972. Voting Rights Act Amendments of 1975, §§101, 202, 89 Stat. 400, 401. Congress also amended the definition of “test or device” to include the practice of providing English-only voting materials in places where over five percent of voting-age citizens spoke a single language other than English. §203, id., at 401–402. As a result of these amendments, the States of Alaska, Arizona, and Texas, as well as several counties in California, Florida, Michigan, New York, North Carolina, and South Dakota, became covered jurisdictions. See 28 CFR pt. 51, App. Congress correspondingly amended sections 2 and 5 to forbid voting discrimination on the basis of membership in a language minority group, in addition to discrimination on the basis of race or color. §§203, 206, 89 Stat. 401, 402. Finally, Congress made the nationwide ban on tests and devices permanent. §102, id., at 400.
In 1982, Congress reauthorized the Act for 25 years, but did not alter its coverage formula. See Voting Rights Act Amendments, 96 Stat. 131. Congress did, however, amend the bailout provisions, allowing political subdivisions of covered jurisdictions to bail out. Among other prerequisites for bailout, jurisdictions and their subdivisions must not have used a forbidden test or device, failed to receive preclearance, or lost a §2 suit, in the ten years prior to seeking bailout. §2, id., at 131–133.
We upheld each of these reauthorizations against constitutional challenge. See Georgia v. United States, 411 U. S. 526 (1973); City of Rome v. United States, 446 U. S. 156 (1980); Lopez v. Monterey County, 525 U. S. 266 (1999).
In 2006, Congress again reauthorized the Voting Rights Act for 25 years, again without change to its coverage formula. Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting Rights Act Reauthorization and Amendments Act, 120 Stat. 577. Congress also amended §5 to prohibit more conduct than before. §5, id., at 580–

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581; see Reno v. Bossier Parish School Bd., 528 U. S. 320, 341 (2000) (Bossier II); Georgia v. Ashcroft, 539 U. S. 461, 479 (2003). Section 5 now forbids voting changes with “any discriminatory purpose” as well as voting changes that diminish the ability of citizens, on account of race, color, or language minority status, “to elect their preferred candidates of choice.” 42 U. S. C. §§1973c(b)–(d).
Shortly after this reauthorization, a Texas utility district brought suit, seeking to bail out from the Act’s coverage and, in the alternative, challenging the Act’s constitutionality. See Northwest Austin, 557 U. S., at 200–201. A three-judge District Court explained that only a State or political subdivision was eligible to seek bailout under the statute, and concluded that the utility district was not a political subdivision, a term that encompassed only “counties, parishes, and voter-registering subunits.” Northwest Austin Municipal Util. Dist. No. One v. Mukasey, 573 F. Supp. 2d 221, 232 (DC 2008). The District Court also rejected the constitutional challenge. Id., at 283.
We reversed. We explained that “ ‘normally the Court will not decide a constitutional question if there is some other ground upon which to dispose of the case.’ ” Northwest Austin, supra, at 205 (quoting Escambia County v. McMillan, 466 U. S. 48, 51 (1984) (per curiam)). Concluding that “underlying constitutional concerns,” among other things, “compel[led] a broader reading of the bailout provision,” we construed the statute to allow the utility district to seek bailout. Northwest Austin, 557 U. S., at 207. In doing so we expressed serious doubts about the Act’s continued constitutionality.
We explained that §5 “imposes substantial federalism costs” and “differentiates between the States, despite our historic tradition that all the States enjoy equal sovereignty.” Id., at 202, 203 (internal quotation marks omitted). We also noted that “[t]hings have changed in the South. Voter turnout and registration rates now approach parity.

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Blatantly discriminatory evasions of federal decrees are rare. And minority candidates hold office at unprecedented levels.” Id., at 202. Finally, we questioned whether the problems that §5 meant to address were still “concentrated in the jurisdictions singled out for preclearance.” Id., at 203.
Eight Members of the Court subscribed to these views, and the remaining Member would have held the Act unconstitutional. Ultimately, however, the Court’s construction of the bailout provision left the constitutional issues for another day.
B
Shelby County is located in Alabama, a covered jurisdiction. It has not sought bailout, as the Attorney General has recently objected to voting changes proposed from within the county. See App. 87a–92a. Instead, in 2010, the county sued the Attorney General in Federal District Court in Washington, D. C., seeking a declaratory judgment that sections 4(b) and 5 of the Voting Rights Act are facially unconstitutional, as well as a permanent injunction against their enforcement. The District Court ruled against the county and upheld the Act. 811 F. Supp. 2d 424, 508 (2011). The court found that the evidence before Congress in 2006 was sufficient to justify reauthorizing §5 and continuing the §4(b) coverage formula.
The Court of Appeals for the D. C. Circuit affirmed. In assessing §5, the D. C. Circuit considered six primary categories of evidence: Attorney General objections to voting changes, Attorney General requests for more information regarding voting changes, successful §2 suits in covered jurisdictions, the dispatching of federal observers to monitor elections in covered jurisdictions, §5 preclearance suits involving covered jurisdictions, and the deterrent effect of §5. See 679 F. 3d 848, 862–863 (2012). After extensive analysis of the record, the court accepted Con-

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gress’s conclusion that §2 litigation remained inadequate in the covered jurisdictions to protect the rights of minority voters, and that §5 was therefore still necessary. Id., at 873.
Turning to §4, the D. C. Circuit noted that the evidence for singling out the covered jurisdictions was “less robust” and that the issue presented “a close question.” Id., at 879. But the court looked to data comparing the number of successful §2 suits in the different parts of the country. Coupling that evidence with the deterrent effect of §5, the court concluded that the statute continued “to single out the jurisdictions in which discrimination is concentrated,” and thus held that the coverage formula passed constitutional muster. Id., at 883.
Judge Williams dissented. He found “no positive correlation between inclusion in §4(b)’s coverage formula and low black registration or turnout.” Id., at 891. Rather, to the extent there was any correlation, it actually went the other way: “condemnation under §4(b) is a marker of higher black registration and turnout.” Ibid. (emphasis added). Judge Williams also found that “[c]overed jurisdictions have far more black officeholders as a proportion of the black population than do uncovered ones.” Id., at 892. As to the evidence of successful §2 suits, Judge Williams disaggregated the reported cases by State, and concluded that “[t]he five worst uncovered jurisdictions . . . have worse records than eight of the covered jurisdictions.” Id., at 897. He also noted that two covered jurisdictions—Arizona and Alaska—had not had any successful reported §2 suit brought against them during the entire 24 years covered by the data. Ibid. Judge Williams would have held the coverage formula of §4(b) “irrational” and unconstitutional. Id., at 885.
We granted certiorari. 568 U. S. ___ (2012).

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II
In Northwest Austin, we stated that “the Act imposes current burdens and must be justified by current needs.” 557 U. S., at 203. And we concluded that “a departure from the fundamental principle of equal sovereignty requires a showing that a statute’s disparate geographic coverage is sufficiently related to the problem that it targets.” Ibid. These basic principles guide our review of the question before us.1
A The Constitution and laws of the United States are “the supreme Law of the Land.” U. S. Const., Art. VI, cl. 2. State legislation may not contravene federal law. The Federal Government does not, however, have a general right to review and veto state enactments before they go into effect. A proposal to grant such authority to “negative” state laws was considered at the Constitutional Convention, but rejected in favor of allowing state laws to take effect, subject to later challenge under the Supremacy Clause. See 1 Records of the Federal Convention of 1787, pp. 21, 164–168 (M. Farrand ed. 1911); 2 id., at 27–29, 390–392. Outside the strictures of the Supremacy Clause, States retain broad autonomy in structuring their governments and pursuing legislative objectives. Indeed, the Constitution provides that all powers not specifically granted to the Federal Government are reserved to the States or citizens. Amdt. 10. This “allocation of powers in our federal system preserves the integrity, dignity, and residual sovereignty of the States.” Bond v. United States, 564 U. S. ___, ___
——————
1 Both the Fourteenth and Fifteenth Amendments were at issue in Northwest Austin, see Juris. Statement i, and Brief for Federal Appellee 29–30, in Northwest Austin Municipal Util. Dist. No. One v. Holder, O. T. 2008, No. 08–322, and accordingly Northwest Austin guides our review under both Amendments in this case.

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(2011) (slip op., at 9). But the federal balance “is not just an end in itself: Rather, federalism secures to citizens the liberties that derive from the diffusion of sovereign power.” Ibid. (internal quotation marks omitted).
More specifically, “ ‘the Framers of the Constitution intended the States to keep for themselves, as provided in the Tenth Amendment, the power to regulate elections.’ ” Gregory v. Ashcroft, 501 U. S. 452, 461–462 (1991) (quoting Sugarman v. Dougall, 413 U. S. 634, 647 (1973); some internal quotation marks omitted). Of course, the Federal Government retains significant control over federal elections. For instance, the Constitution authorizes Congress to establish the time and manner for electing Senators and Representatives. Art. I, §4, cl. 1; see also Arizona v. Inter Tribal Council of Ariz., Inc., ante, at 4–6. But States have “broad powers to determine the conditions under which the right of suffrage may be exercised.” Carrington v. Rash, 380 U. S. 89, 91 (1965) (internal quotation marks omitted); see also Arizona, ante, at 13–15. And “[e]ach State has the power to prescribe the qualifications of its officers and the manner in which they shall be chosen.” Boyd v. Nebraska ex rel. Thayer, 143 U. S. 135, 161 (1892). Drawing lines for congressional districts is likewise “primarily the duty and responsibility of the State.” Perry v. Perez, 565 U. S. ___, ___ (2012) (per curiam) (slip op., at 3) (internal quotation marks omitted).
Not only do States retain sovereignty under the Constitution, there is also a “fundamental principle of equal sovereignty” among the States. Northwest Austin, supra, at 203 (citing United States v. Louisiana, 363 U. S. 1, 16 (1960); Lessee of Pollard v. Hagan, 3 How. 212, 223 (1845); and Texas v. White, 7 Wall. 700, 725–726 (1869); emphasis added). Over a hundred years ago, this Court explained that our Nation “was and is a union of States, equal in power, dignity and authority.” Coyle v. Smith, 221 U. S. 559, 567 (1911). Indeed, “the constitutional equality of the

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States is essential to the harmonious operation of the scheme upon which the Republic was organized.” Id., at 580. Coyle concerned the admission of new States, and Katzenbach rejected the notion that the principle operated as a bar on differential treatment outside that context. 383 U. S., at 328–329. At the same time, as we made clear in Northwest Austin, the fundamental principle of equal sovereignty remains highly pertinent in assessing subsequent disparate treatment of States. 557 U. S., at 203.
The Voting Rights Act sharply departs from these basic principles. It suspends “all changes to state election law— however innocuous—until they have been precleared by federal authorities in Washington, D. C.” Id., at 202. States must beseech the Federal Government for permission to implement laws that they would otherwise have the right to enact and execute on their own, subject of course to any injunction in a §2 action. The Attorney General has 60 days to object to a preclearance request, longer if he requests more information. See 28 CFR §§51.9, 51.37. If a State seeks preclearance from a threejudge court, the process can take years.
And despite the tradition of equal sovereignty, the Act applies to only nine States (and several additional counties). While one State waits months or years and expends funds to implement a validly enacted law, its neighbor can typically put the same law into effect immediately, through the normal legislative process. Even if a noncovered jurisdiction is sued, there are important differences between those proceedings and preclearance proceedings; the preclearance proceeding “not only switches the burden of proof to the supplicant jurisdiction, but also applies substantive standards quite different from those governing the rest of the nation.” 679 F. 3d, at 884 (Williams, J., dissenting) (case below).
All this explains why, when we first upheld the Act in 1966, we described it as “stringent” and “potent.” Katzen-

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bach, 383 U. S., at 308, 315, 337. We recognized that it “may have been an uncommon exercise of congressional power,” but concluded that “legislative measures not otherwise appropriate” could be justified by “exceptional conditions.” Id., at 334. We have since noted that the Act “authorizes federal intrusion into sensitive areas of state and local policymaking,” Lopez, 525 U. S., at 282, and represents an “extraordinary departure from the traditional course of relations between the States and the Federal Government,” Presley v. Etowah County Comm’n, 502 U. S. 491, 500–501 (1992). As we reiterated in Northwest Austin, the Act constitutes “extraordinary legislation otherwise unfamiliar to our federal system.” 557 U. S., at 211.
B
In 1966, we found these departures from the basic features of our system of government justified. The “blight of racial discrimination in voting” had “infected the electoral process in parts of our country for nearly a century.” Katzenbach, 383 U. S., at 308. Several States had enacted a variety of requirements and tests “specifically designed to prevent” African-Americans from voting. Id., at 310. Case-by-case litigation had proved inadequate to prevent such racial discrimination in voting, in part because States “merely switched to discriminatory devices not covered by the federal decrees,” “enacted difficult new tests,” or simply “defied and evaded court orders.” Id., at 314. Shortly before enactment of the Voting Rights Act, only 19.4 percent of African-Americans of voting age were registered to vote in Alabama, only 31.8 percent in Louisiana, and only 6.4 percent in Mississippi. Id., at 313. Those figures were roughly 50 percentage points or more below the figures for whites. Ibid.
In short, we concluded that “[u]nder the compulsion of these unique circumstances, Congress responded in a

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permissibly decisive manner.” Id., at 334, 335. We also noted then and have emphasized since that this extraordinary legislation was intended to be temporary, set to expire after five years. Id., at 333; Northwest Austin, supra, at 199.
At the time, the coverage formula—the means of linking the exercise of the unprecedented authority with the problem that warranted it—made sense. We found that “Congress chose to limit its attention to the geographic areas where immediate action seemed necessary.” Katzenbach, 383 U. S., at 328. The areas where Congress found “evidence of actual voting discrimination” shared two characteristics: “the use of tests and devices for voter registration, and a voting rate in the 1964 presidential election at least 12 points below the national average.” Id., at 330. We explained that “[t]ests 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 affect the number of actual voters.” Ibid. We therefore concluded that “the coverage formula [was] rational in both practice and theory.” Ibid. It accurately reflected those jurisdictions uniquely characterized by voting discrimination “on a pervasive scale,” linking coverage to the devices used to effectuate discrimination and to the resulting disenfranchisement. Id., at 308. The formula ensured that the “stringent remedies [were] aimed at areas where voting discrimination ha[d] been most flagrant.” Id., at 315.
C
Nearly 50 years later, things have changed dramatically. Shelby County contends that the preclearance requirement, even without regard to its disparate coverage, is now unconstitutional. Its arguments have a good deal of force. In the covered jurisdictions, “[v]oter turnout and

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registration rates now approach parity. Blatantly discriminatory evasions of federal decrees are rare. And minority candidates hold office at unprecedented levels.” Northwest Austin, 557 U. S., at 202. The tests and devices that blocked access to the ballot have been forbidden nationwide for over 40 years. See §6, 84 Stat. 315; §102, 89 Stat. 400.
Those conclusions are not ours alone. Congress said the same when it reauthorized the Act in 2006, writing that “[s]ignificant progress has been made in eliminating first generation barriers experienced by minority voters, including increased numbers of registered minority voters, minority voter turnout, and minority representation in Congress, State legislatures, and local elected offices.” §2(b)(1), 120 Stat. 577. The House Report elaborated that “the 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 noted that “[i]n some circumstances, minorities register to vote and cast ballots at levels that surpass those of white voters.” H. R. Rep. No. 109–478, p. 12 (2006). That Report also explained that there have been “significant increases in the number of African-Americans serving in elected offices”; more specifically, there has been approximately a 1,000 percent increase since 1965 in the number of African-American elected officials in the six States originally covered by the Voting Rights Act. Id., at 18.
The following chart, compiled from the Senate and House Reports, compares voter registration numbers from 1965 to those from 2004 in the six originally covered States. These are the numbers that were before Congress when it reauthorized the Act in 2006:

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Alabama Georgia Louisiana Mississippi South Carolina
Virginia

White 69.2 62.[6] 80.5 69.9 75.7
61.1

1965 Black 19.3 27.4 31.6
6.7 37.3
38.3

Gap 49.9 35.2 48.9 63.2 38.4
22.8

White 73.8 63.5 75.1 72.3 74.4
68.2

2004 Black 72.9 64.2 71.1 76.1 71.1
57.4

Gap 0.9 -0.7 4.0 -3.8 3.3
10.8

See S. Rep. No. 109–295, p. 11 (2006); H. R. Rep. No. 109– 478, at 12. The 2004 figures come from the Census Bureau. Census Bureau data from the most recent election
indicate that African-American voter turnout exceeded white voter turnout in five of the six States originally
covered by §5, with a gap in the sixth State of less than one half of one percent. See Dept. of Commerce, Census Bureau, Reported Voting and Registration, by Sex, Race
and Hispanic Origin, for States (Table 4b). The preclearance statistics are also illuminating. In the first decade
after enactment of §5, the Attorney General objected to 14.2 percent of proposed voting changes. H. R Rep. No. 109–478, at 22. In the last decade before reenactment, the
Attorney General objected to a mere 0.16 percent. S. Rep. No. 109–295, at 13.
There is no doubt that these improvements are in large part because of the Voting Rights Act. The Act has proved immensely successful at redressing racial discrimination
and integrating the voting process. See §2(b)(1), 120 Stat. 577. During the “Freedom Summer” of 1964, in Philadel-
phia, Mississippi, three men were murdered while working in the area to register African-American voters. See United States v. Price, 383 U. S. 787, 790 (1966). On
“Bloody Sunday” in 1965, in Selma, Alabama, police beat

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and used tear gas against hundreds marching in support of African-American enfranchisement. See Northwest Austin, supra, at 220, n. 3 (THOMAS, J., concurring in judgment in part and dissenting in part). Today both of those towns are governed by African-American mayors. Problems remain in these States and others, but there is no denying that, due to the Voting Rights Act, our Nation has made great strides.
Yet the Act has not eased the restrictions in §5 or narrowed the scope of the coverage formula in §4(b) along the way. Those extraordinary and unprecedented features were reauthorized—as if nothing had changed. In fact, the Act’s unusual remedies have grown even stronger. When Congress reauthorized the Act in 2006, it did so for another 25 years on top of the previous 40—a far cry from the initial five-year period. See 42 U. S. C. §1973b(a)(8). Congress also expanded the prohibitions in §5. We had previously interpreted §5 to prohibit only those redistricting plans that would have the purpose or effect of worsening the position of minority groups. See Bossier II, 528 U. S., at 324, 335–336. In 2006, Congress amended §5 to prohibit laws that could have favored such groups but did not do so because of a discriminatory purpose, see 42 U. S. C. §1973c(c), even though we had stated that such broadening of §5 coverage would “exacerbate the substantial federalism costs that the preclearance procedure already exacts, perhaps to the extent of raising concerns about §5’s constitutionality,” Bossier II, supra, at 336 (citation and internal quotation marks omitted). In addition, Congress expanded §5 to prohibit any voting law “that has the purpose of or will have the effect of diminishing the ability of any citizens of the United States,” on account of race, color, or language minority status, “to elect their preferred candidates of choice.” §1973c(b). In light of those two amendments, the bar that covered jurisdictions must clear has been raised even as the conditions

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justifying that requirement have dramatically improved. We have also previously highlighted the concern that
“the preclearance requirements in one State [might] be unconstitutional in another.” Northwest Austin, 557 U. S., at 203; see Georgia v. Ashcroft, 539 U. S., at 491 (KENNEDY, J., concurring) (“considerations of race that would doom a redistricting plan under the Fourteenth Amendment or §2 [of the Voting Rights Act] seem to be what save it under §5”). Nothing has happened since to alleviate this troubling concern about the current application of §5.
Respondents do not deny that there have been improvements on the ground, but argue that much of this can be attributed to the deterrent effect of §5, which dissuades covered jurisdictions from engaging in discrimination that they would resume should §5 be struck down. Under this theory, however, §5 would be effectively immune from scrutiny; no matter how “clean” the record of covered jurisdictions, the argument could always be made that it was deterrence that accounted for the good behavior.
The provisions of §5 apply only to those jurisdictions singled out by §4. We now consider whether that coverage formula is constitutional in light of current conditions.
III A
When upholding the constitutionality of the coverage formula in 1966, we concluded that it was “rational in both practice and theory.” Katzenbach, 383 U. S., at 330. The formula looked to cause (discriminatory tests) and effect (low voter registration and turnout), and tailored the remedy (preclearance) to those jurisdictions exhibiting both.
By 2009, however, we concluded that the “coverage formula raise[d] serious constitutional questions.” North-

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west Austin, 557 U. S., at 204. As we explained, a statute’s “current burdens” must be justified by “current needs,” and any “disparate geographic coverage” must be “sufficiently related to the problem that it targets.” Id., at 203. The coverage formula met that test in 1965, but no longer does so.
Coverage today is based on decades-old data and eradicated practices. The formula captures States by reference to literacy tests and low voter registration and turnout in the 1960s and early 1970s. But such tests have been banned nationwide for over 40 years. §6, 84 Stat. 315; §102, 89 Stat. 400. And voter registration and turnout numbers in the covered States have risen dramatically in the years since. H. R. Rep. No. 109–478, at 12. Racial disparity in those numbers was compelling evidence justifying the preclearance remedy and the coverage formula. See, e.g., Katzenbach, supra, at 313, 329–330. There is no longer such a disparity.
In 1965, the States could be divided into two groups: those with a recent history of voting tests and low voter registration and turnout, and those without those characteristics. Congress based its coverage formula on that distinction. Today the Nation is no longer divided along those lines, yet the Voting Rights Act continues to treat it as if it were.
B The Government’s defense of the formula is limited. First, the Government contends that the formula is “reverse-engineered”: Congress identified the jurisdictions to be covered and then came up with criteria to describe them. Brief for Federal Respondent 48–49. Under that reasoning, there need not be any logical relationship between the criteria in the formula and the reason for coverage; all that is necessary is that the formula happen to capture the jurisdictions Congress wanted to single out.

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The Government suggests that Katzenbach sanctioned such an approach, but the analysis in Katzenbach was quite different. Katzenbach reasoned that the coverage formula was rational because the “formula . . . was relevant to the problem”: “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 affect the number of actual voters.” 383 U. S., at 329, 330.
Here, by contrast, the Government’s reverseengineering argument does not even attempt to demonstrate the continued relevance of the formula to the problem it targets. And in the context of a decision as significant as this one—subjecting a disfavored subset of States to “extraordinary legislation otherwise unfamiliar to our federal system,” Northwest Austin, supra, at 211—that failure to establish even relevance is fatal.
The Government falls back to the argument that because the formula was relevant in 1965, its continued use is permissible so long as any discrimination remains in the States Congress identified back then—regardless of how that discrimination compares to discrimination in States unburdened by coverage. Brief for Federal Respondent 49–50. This argument does not look to “current political conditions,” Northwest Austin, supra, at 203, but instead relies on a comparison between the States in 1965. That comparison reflected the different histories of the North and South. It was in the South that slavery was upheld by law until uprooted by the Civil War, that the reign of Jim Crow denied African-Americans the most basic freedoms, and that state and local governments worked tirelessly to disenfranchise citizens on the basis of race. The Court invoked that history—rightly so—in sustaining the disparate coverage of the Voting Rights Act in 1966. See Katzenbach, supra, at 308 (“The constitutional propriety of

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the Voting Rights Act of 1965 must be judged with reference to the historical experience which it reflects.”).
But history did not end in 1965. By the time the Act was reauthorized in 2006, there had been 40 more years of it. In assessing the “current need[ ]” for a preclearance system that treats States differently from one another today, that history cannot be ignored. During that time, largely because of the Voting Rights Act, voting tests were abolished, disparities in voter registration and turnout due to race were erased, and African-Americans attained political office in record numbers. And yet the coverage formula that Congress reauthorized in 2006 ignores these developments, keeping the focus on decades-old data relevant to decades-old problems, rather than current data reflecting current needs.
The Fifteenth Amendment commands that the right to vote shall not be denied or abridged on account of race or color, and it gives Congress the power to enforce that command. The Amendment is not designed to punish for the past; its purpose is to ensure a better future. See Rice v. Cayetano, 528 U. S. 495, 512 (2000) (“Consistent with the design of the Constitution, the [Fifteenth] Amendment is cast in fundamental terms, terms transcending the particular controversy which was the immediate impetus for its enactment.”). To serve that purpose, Congress—if it is to divide the States—must identify those jurisdictions to be singled out on a basis that makes sense in light of current conditions. It cannot rely simply on the past. We made that clear in Northwest Austin, and we make it clear again today.
C
In defending the coverage formula, the Government, the intervenors, and the dissent also rely heavily on data from the record that they claim justify disparate coverage. Congress compiled thousands of pages of evidence before

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21

Opinion of the Court
reauthorizing the Voting Rights Act. The court below and the parties have debated what that record shows—they have gone back and forth about whether to compare covered to noncovered jurisdictions as blocks, how to disaggregate the data State by State, how to weigh §2 cases as evidence of ongoing discrimination, and whether to consider evidence not before Congress, among other issues. Compare, e.g., 679 F. 3d, at 873–883 (case below), with id., at 889–902 (Williams, J., dissenting). Regardless of how to look at the record, however, no one can fairly say that it shows anything approaching the “pervasive,” “flagrant,” “widespread,” and “rampant” discrimination that faced Congress in 1965, and that clearly distinguished the covered jurisdictions from the rest of the Nation at that time. Katzenbach, supra, at 308, 315, 331; Northwest Austin, 557 U. S., at 201.
But a more fundamental problem remains: Congress did not use the record it compiled to shape a coverage formula grounded in current conditions. It instead reenacted a formula based on 40-year-old facts having no logical relation to the present day. The dissent relies on “secondgeneration barriers,” which are not impediments to the casting of ballots, but rather electoral arrangements that affect the weight of minority votes. That does not cure the problem. Viewing the preclearance requirements as targeting such efforts simply highlights the irrationality of continued reliance on the §4 coverage formula, which is based on voting tests and access to the ballot, not vote dilution. We cannot pretend that we are reviewing an updated statute, or try our hand at updating the statute ourselves, based on the new record compiled by Congress. Contrary to the dissent’s contention, see post, at 23, we are not ignoring the record; we are simply recognizing that it played no role in shaping the statutory formula before us today.
The dissent also turns to the record to argue that, in

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light of voting discrimination in Shelby County, the county cannot complain about the provisions that subject it to preclearance. Post, at 23–30. But that is like saying that a driver pulled over pursuant to a policy of stopping all redheads cannot complain about that policy, if it turns out his license has expired. Shelby County’s claim is that the coverage formula here is unconstitutional in all its applications, because of how it selects the jurisdictions subjected to preclearance. The county was selected based on that formula, and may challenge it in court.
D The dissent proceeds from a flawed premise. It quotes the famous sentence from McCulloch v. Maryland, 4 Wheat. 316, 421 (1819), with the following emphasis: “Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.” Post, at 9 (emphasis in dissent). But this case is about a part of the sentence that the dissent does not emphasize—the part that asks whether a legislative means is “consist[ent] with the letter and spirit of the constitution.” The dissent states that “[i]t cannot tenably be maintained” that this is an issue with regard to the Voting Rights Act, post, at 9, but four years ago, in an opinion joined by two of today’s dissenters, the Court expressly stated that “[t]he Act’s preclearance requirement and its coverage formula raise serious constitutional questions.” Northwest Austin, supra, at 204. The dissent does not explain how those “serious constitutional questions” became untenable in four short years. The dissent treats the Act as if it were just like any other piece of legislation, but this Court has made clear from the beginning that the Voting Rights Act is far from ordinary. At the risk of repetition, Katzenbach indicated

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Opinion of the Court
that the Act was “uncommon” and “not otherwise appropriate,” but was justified by “exceptional” and “unique” conditions. 383 U. S., at 334, 335. Multiple decisions since have reaffirmed the Act’s “extraordinary” nature. See, e.g., Northwest Austin, supra, at 211. Yet the dissent goes so far as to suggest instead that the preclearance requirement and disparate treatment of the States should be upheld into the future “unless there [is] no or almost no evidence of unconstitutional action by States.” Post, at 33.
In other ways as well, the dissent analyzes the question presented as if our decision in Northwest Austin never happened. For example, the dissent refuses to consider the principle of equal sovereignty, despite Northwest Austin’s emphasis on its significance. Northwest Austin also emphasized the “dramatic” progress since 1965, 557 U. S., at 201, but the dissent describes current levels of discrimination as “flagrant,” “widespread,” and “pervasive,” post, at 7, 17 (internal quotation marks omitted). Despite the fact that Northwest Austin requires an Act’s “disparate geographic coverage” to be “sufficiently related” to its targeted problems, 557 U. S., at 203, the dissent maintains that an Act’s limited coverage actually eases Congress’s burdens, and suggests that a fortuitous relationship should suffice. Although Northwest Austin stated definitively that “current burdens” must be justified by “current needs,” ibid., the dissent argues that the coverage formula can be justified by history, and that the required showing can be weaker on reenactment than when the law was first passed.
There is no valid reason to insulate the coverage formula from review merely because it was previously enacted 40 years ago. If Congress had started from scratch in 2006, it plainly could not have enacted the present coverage formula. It would have been irrational for Congress to distinguish between States in such a fundamental way based on 40-year-old data, when today’s statistics tell an

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entirely different story. And it would have been irrational to base coverage on the use of voting tests 40 years ago, when such tests have been illegal since that time. But that is exactly what Congress has done.
* * * Striking down an Act of Congress “is the gravest and most delicate duty that this Court is called on to perform.” Blodgett v. Holden, 275 U. S. 142, 148 (1927) (Holmes, J., concurring). We do not do so lightly. That is why, in 2009, we took care to avoid ruling on the constitutionality of the Voting Rights Act when asked to do so, and instead resolved the case then before us on statutory grounds. But in issuing that decision, we expressed our broader concerns about the constitutionality of the Act. Congress could have updated the coverage formula at that time, but did not do so. Its failure to act leaves us today with no choice but to declare §4(b) unconstitutional. The formula in that section can no longer be used as a basis for subjecting jurisdictions to preclearance. Our decision in no way affects the permanent, nationwide ban on racial discrimination in voting found in §2. We issue no holding on §5 itself, only on the coverage formula. Congress may draft another formula based on current conditions. Such a formula is an initial prerequisite to a determination that exceptional conditions still exist justifying such an “extraordinary departure from the traditional course of relations between the States and the Federal Government.” Presley, 502 U. S., at 500–501. Our country has changed, and while any racial discrimination in voting is too much, Congress must ensure that the legislation it passes to remedy that problem speaks to current conditions. The judgment of the Court of Appeals is reversed.

It is so ordered.

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1

THOMAS, J., concurring
SUPREME COURT OF THE UNITED STATES
_________________
No. 12–96
_________________
SHELBY COUNTY, ALABAMA, PETITIONER v. ERIC H. HOLDER, JR., ATTORNEY GENERAL, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
[June 25, 2013]
JUSTICE THOMAS, concurring.
I join the Court’s opinion in full but write separately to explain that I would find §5 of the Voting Rights Act unconstitutional as well. The Court’s opinion sets forth the reasons.
“The Voting Rights Act of 1965 employed extraordinary measures to address an extraordinary problem.” Ante, at 1. In the face of “unremitting and ingenious defiance” of citizens’ constitutionally protected right to vote, §5 was necessary to give effect to the Fifteenth Amendment in particular regions of the country. South Carolina v. Katzenbach, 383 U. S. 301, 309 (1966). Though §5’s preclearance requirement represented a “shar[p] depart[ure]” from “basic principles” of federalism and the equal sovereignty of the States, ante, at 9, 11, the Court upheld the measure against early constitutional challenges because it was necessary at the time to address “voting discrimination where it persist[ed] on a pervasive scale.” Katzenbach, supra, at 308.
Today, our Nation has changed. “[T]he conditions that originally justified [§5] no longer characterize voting in the covered jurisdictions.” Ante, at 2. As the Court explains: “ ‘[V]oter turnout and registration rates now approach parity. Blatantly discriminatory evasions of federal de-

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THOMAS, J., concurring
crees are rare. And minority candidates hold office at unprecedented levels.’ ” Ante, at 13–14 (quoting Northwest Austin Municipal Util. Dist. No. One v. Holder, 557 U. S. 193, 202 (2009)).
In spite of these improvements, however, Congress increased the already significant burdens of §5. Following its reenactment in 2006, the Voting Rights Act was amended to “prohibit more conduct than before.” Ante, at 5. “Section 5 now forbids voting changes with ‘any discriminatory purpose’ as well as voting changes that diminish the ability of citizens, on account of race, color, or language minority status, ‘to elect their preferred candidates of choice.’ ” Ante, at 6. While the pre-2006 version of the Act went well beyond protection guaranteed under the Constitution, see Reno v. Bossier Parish School Bd., 520 U. S. 471, 480–482 (1997), it now goes even further.
It is, thus, quite fitting that the Court repeatedly points out that this legislation is “extraordinary” and “unprecedented” and recognizes the significant constitutional problems created by Congress’ decision to raise “the bar that covered jurisdictions must clear,” even as “the conditions justifying that requirement have dramatically improved.” Ante, at 16–17. However one aggregates the data compiled by Congress, it cannot justify the considerable burdens created by §5. As the Court aptly notes: “[N]o one can fairly say that [the record] shows anything approaching the ‘pervasive,’ ‘flagrant,’ ‘widespread,’ and ‘rampant’ discrimination that faced Congress in 1965, and that clearly distinguished the covered jurisdictions from the rest of the Nation at that time.” Ante, at 21. Indeed, circumstances in the covered jurisdictions can no longer be characterized as “exceptional” or “unique.” “The extensive pattern of discrimination that led the Court to previously uphold §5 as enforcing the Fifteenth Amendment no longer exists.” Northwest Austin, supra, at 226 (THOMAS, J., concurring in judgment in part and dissenting in part).

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Section 5 is, thus, unconstitutional. While the Court claims to “issue no holding on §5 itself,”
ante, at 24, its own opinion compellingly demonstrates that Congress has failed to justify “ ‘current burdens’ ” with a record demonstrating “ ‘current needs.’ ” See ante, at 9 (quoting Northwest Austin, supra, at 203). By leaving the inevitable conclusion unstated, the Court needlessly prolongs the demise of that provision. For the reasons stated in the Court’s opinion, I would find §5 unconstitutional.

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1

GINSBURG, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 12–96
_________________
SHELBY COUNTY, ALABAMA, PETITIONER v. ERIC H. HOLDER, JR., ATTORNEY GENERAL, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
[June 25, 2013]
JUSTICE GINSBURG, with whom JUSTICE BREYER, JUSTICE SOTOMAYOR, and JUSTICE KAGAN join, dissenting.
In the Court’s view, the very success of §5 of the Voting Rights Act demands its dormancy. Congress was of another mind. Recognizing that large progress has been made, Congress determined, based on a voluminous rec­ ord, that the scourge of discrimination was not yet extir­ pated. The question this case presents is who decides whether, as currently operative, §5 remains justifiable,1 this Court, or a Congress charged with the obligation to enforce the post-Civil War Amendments “by appropriate legislation.” With overwhelming support in both Houses, Congress concluded that, for two prime reasons, §5 should continue in force, unabated. First, continuance would facilitate completion of the impressive gains thus far made; and second, continuance would guard against back­ sliding. Those assessments were well within Congress’ province to make and should elicit this Court’s unstinting approbation.
I
“[V]oting discrimination still exists; no one doubts that.”
——————
1 The Court purports to declare unconstitutional only the coverage formula set out in §4(b). See ante, at 24. But without that formula, §5 is immobilized.

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Ante, at 2. But the Court today terminates the remedy that proved to be best suited to block that discrimination. The Voting Rights Act of 1965 (VRA) has worked to com­ bat voting discrimination where other remedies had been tried and failed. Particularly effective is the VRA’s re­ quirement of federal preclearance for all changes to voting laws in the regions of the country with the most aggravated records of rank discrimination against minority voting rights.
A century after the Fourteenth and Fifteenth Amend­ ments guaranteed citizens the right to vote free of dis­ crimination on the basis of race, the “blight of racial discrimination in voting” continued to “infec[t] the electoral process in parts of our country.” South Carolina v. Katzenbach, 383 U. S. 301, 308 (1966). Early attempts to cope with this vile infection resembled battling the Hydra. Whenever one form of voting discrimination was identified and prohibited, others sprang up in its place. This Court repeatedly encountered the remarkable “variety and persistence” of laws disenfranchising minority citizens. Id., at 311. To take just one example, the Court, in 1927, held unconstitutional a Texas law barring black voters from participating in primary elections, Nixon v. Herndon, 273 U. S. 536, 541; in 1944, the Court struck down a “reenacted” and slightly altered version of the same law, Smith v. Allwright, 321 U. S. 649, 658; and in 1953, the Court once again confronted an attempt by Texas to “cir­ cumven[t]” the Fifteenth Amendment by adopting yet another variant of the all-white primary, Terry v. Adams, 345 U. S. 461, 469.
During this era, the Court recognized that discrimina­ tion against minority voters was a quintessentially politi­ cal problem requiring a political solution. As Justice Holmes explained: If “the great mass of the white popula­ tion intends to keep the blacks from voting,” “relief from [that] great political wrong, if done, as alleged, by the

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people of a State and the State itself, must be given by them or by the legislative and political department of the government of the United States.” Giles v. Harris, 189 U. S. 475, 488 (1903).
Congress learned from experience that laws targeting particular electoral practices or enabling case-by-case litigation were inadequate to the task. In the Civil Rights Acts of 1957, 1960, and 1964, Congress authorized and then expanded the power of “the Attorney General to seek injunctions against public and private interference with the right to vote on racial grounds.” Katzenbach, 383 U. S., at 313. But circumstances reduced the ameliorative potential of these legislative Acts:
“Voting suits are unusually onerous to prepare, some­ times requiring as many as 6,000 man-hours spent combing through registration records in preparation for trial. Litigation has been exceedingly slow, in part because of the ample opportunities for delay afforded voting officials and others involved in the proceed­ ings. Even when favorable decisions have finally been obtained, some of the States affected have merely switched to discriminatory devices not covered by the federal decrees or have enacted difficult new tests de­ signed to prolong the existing disparity between white and Negro registration. Alternatively, certain local of­ ficials have defied and evaded court orders or have simply closed their registration offices to freeze the voting rolls.” Id., at 314 (footnote omitted).
Patently, a new approach was needed. Answering that need, the Voting Rights Act became one
of the most consequential, efficacious, and amply justified exercises of federal legislative power in our Nation’s his­ tory. Requiring federal preclearance of changes in voting laws in the covered jurisdictions—those States and locali­ ties where opposition to the Constitution’s commands were

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GINSBURG, J., dissenting
most virulent—the VRA provided a fit solution for minor­ ity voters as well as for States. Under the preclearance regime established by §5 of the VRA, covered jurisdictions must submit proposed changes in voting laws or proce­ dures to the Department of Justice (DOJ), which has 60 days to respond to the changes. 79 Stat. 439, codified at 42 U. S. C. §1973c(a). A change will be approved unless DOJ finds it has “the purpose [or] . . . the effect of denying or abridging the right to vote on account of race or color.” Ibid. In the alternative, the covered jurisdiction may seek approval by a three-judge District Court in the District of Columbia.
After a century’s failure to fulfill the promise of the Fourteenth and Fifteenth Amendments, passage of the VRA finally led to signal improvement on this front. “The Justice Department estimated that in the five years after [the VRA’s] passage, almost as many blacks registered [to vote] in Alabama, Mississippi, Georgia, Louisiana, North Carolina, and South Carolina as in the entire century before 1965.” Davidson, The Voting Rights Act: A Brief History, in Controversies in Minority Voting 7, 21 (B. Grofman & C. Davidson eds. 1992). And in assessing the overall effects of the VRA in 2006, Congress found that “[s]ignificant progress has been made in eliminating first generation barriers experienced by minority voters, in­ cluding increased numbers of registered minority voters, minority voter turnout, and minority representation in Congress, State legislatures, and local elected offices. This progress is the direct result of the Voting Rights Act of 1965.” Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting Rights Act Reauthorization and Amendments Act of 2006 (hereinafter 2006 Reauthorization), §2(b)(1), 120 Stat. 577. On that matter of cause and effects there can be no genuine doubt.
Although the VRA wrought dramatic changes in the realization of minority voting rights, the Act, to date,

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GINSBURG, J., dissenting
surely has not eliminated all vestiges of discrimination against the exercise of the franchise by minority citizens. Jurisdictions covered by the preclearance requirement continued to submit, in large numbers, proposed changes to voting laws that the Attorney General declined to ap­ prove, auguring that barriers to minority voting would quickly resurface were the preclearance remedy elimi­ nated. City of Rome v. United States, 446 U. S. 156, 181 (1980). Congress also found that as “registration and voting of minority citizens increas[ed], other measures may be resorted to which would dilute increasing minority voting strength.” Ibid. (quoting H. R. Rep. No. 94–196, p. 10 (1975)). See also Shaw v. Reno, 509 U. S. 630, 640 (1993) (“[I]t soon became apparent that guaranteeing equal access to the polls would not suffice to root out other racially discriminatory voting practices” such as voting dilution). Efforts to reduce the impact of minority votes, in contrast to direct attempts to block access to the bal­ lot, are aptly described as “second-generation barriers” to minority voting.
Second-generation barriers come in various forms. One of the blockages is racial gerrymandering, the redrawing of legislative districts in an “effort to segregate the races for purposes of voting.” Id., at 642. Another is adoption of a system of at-large voting in lieu of district-by-district voting in a city with a sizable black minority. By switch­ ing to at-large voting, the overall majority could control the election of each city council member, effectively elimi­ nating the potency of the minority’s votes. Grofman & Davidson, The Effect of Municipal Election Structure on Black Representation in Eight Southern States, in Quiet Revolution in the South 301, 319 (C. Davidson & B. Grofman eds. 1994) (hereinafter Quiet Revolution). A similar effect could be achieved if the city engaged in discriminatory annexation by incorporating majority­ white areas into city limits, thereby decreasing the effect

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GINSBURG, J., dissenting
of VRA-occasioned increases in black voting. Whatever the device employed, this Court has long recognized that vote dilution, when adopted with a discriminatory pur­ pose, cuts down the right to vote as certainly as denial of access to the ballot. Shaw, 509 U. S., at 640–641; Allen v. State Bd. of Elections, 393 U. S. 544, 569 (1969); Reynolds v. Sims, 377 U. S. 533, 555 (1964). See also H. R. Rep. No. 109–478, p. 6 (2006) (although “[d]iscrimination today is more subtle than the visible methods used in 1965,” “the effect and results are the same, namely a diminishing of the minority community’s ability to fully participate in the electoral process and to elect their preferred candidates”).
In response to evidence of these substituted barriers, Congress reauthorized the VRA for five years in 1970, for seven years in 1975, and for 25 years in 1982. Ante, at 4–5. Each time, this Court upheld the reauthorization as a valid exercise of congressional power. Ante, at 5. As the 1982 reauthorization approached its 2007 expiration date, Congress again considered whether the VRA’s preclear­ ance mechanism remained an appropriate response to the problem of voting discrimination in covered jurisdictions.
Congress did not take this task lightly. Quite the oppo­ site. The 109th Congress that took responsibility for the renewal started early and conscientiously. In October 2005, the House began extensive hearings, which contin­ ued into November and resumed in March 2006. S. Rep. No. 109–295, p. 2 (2006). In April 2006, the Senate fol­ lowed suit, with hearings of its own. Ibid. In May 2006, the bills that became the VRA’s reauthorization were introduced in both Houses. Ibid. The House held further hearings of considerable length, as did the Senate, which continued to hold hearings into June and July. H. R. Rep. 109–478, at 5; S. Rep. 109–295, at 3–4. In mid-July, the House considered and rejected four amendments, then passed the reauthorization by a vote of 390 yeas to 33 nays. 152 Cong. Rec. H5207 (July 13, 2006); Persily, The

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Promise and Pitfalls of the New Voting Rights Act, 117 Yale L. J. 174, 182–183 (2007) (hereinafter Persily). The bill was read and debated in the Senate, where it passed by a vote of 98 to 0. 152 Cong. Rec. S8012 (July 20, 2006). President Bush signed it a week later, on July 27, 2006, recognizing the need for “further work . . . in the fight against injustice,” and calling the reauthorization “an example of our continued commitment to a united America where every person is valued and treated with dignity and respect.” 152 Cong. Rec. S8781 (Aug. 3, 2006).
In the long course of the legislative process, Congress “amassed a sizable record.” Northwest Austin Municipal Util. Dist. No. One v. Holder, 557 U. S. 193, 205 (2009). See also 679 F. 3d 848, 865–873 (CADC 2012) (describing the “extensive record” supporting Congress’ determina­ tion that “serious and widespread intentional discrimination persisted in covered jurisdictions”). The House and Senate Judiciary Committees held 21 hearings, heard from scores of witnesses, received a number of investigative reports and other written documentation of continuing discrimina­ tion in covered jurisdictions. In all, the legislative record Congress compiled filled more than 15,000 pages. H. R. Rep. 109–478, at 5, 11–12; S. Rep. 109–295, at 2–4, 15. The compilation presents countless “examples of fla­ grant racial discrimination” since the last reauthoriza­ tion; Congress also brought to light systematic evidence that “intentional racial discrimination in voting remains so serious and widespread in covered jurisdictions that section 5 preclearance is still needed.” 679 F. 3d, at 866.
After considering the full legislative record, Congress made the following findings: The VRA has directly caused significant progress in eliminating first-generation barri­ ers to ballot access, leading to a marked increase in minor­ ity voter registration and turnout and the number of minority elected officials. 2006 Reauthorization §2(b)(1). But despite this progress, “second generation barriers

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constructed to prevent minority voters from fully partici­ pating in the electoral process” continued to exist, as well as racially polarized voting in the covered jurisdictions, which increased the political vulnerability of racial and language minorities in those jurisdictions. §§2(b)(2)–(3), 120 Stat. 577. Extensive “[e]vidence of continued discrim­ ination,” Congress concluded, “clearly show[ed] the con­ tinued need for Federal oversight” in covered jurisdictions. §§2(b)(4)–(5), id., at 577–578. The overall record demon­ strated to the federal lawmakers that, “without the con­ tinuation of the Voting Rights Act of 1965 protections, racial and language minority citizens will be deprived of the opportunity to exercise their right to vote, or will have their votes diluted, undermining the significant gains made by minorities in the last 40 years.” §2(b)(9), id., at 578.
Based on these findings, Congress reauthorized pre­ clearance for another 25 years, while also undertaking to reconsider the extension after 15 years to ensure that the provision was still necessary and effective. 42 U. S. C. §1973b(a)(7), (8) (2006 ed., Supp. V). The question before the Court is whether Congress had the authority under the Constitution to act as it did.
II
In answering this question, the Court does not write on a clean slate. It is well established that Congress’ judg­ ment regarding exercise of its power to enforce the Four­ teenth and Fifteenth Amendments warrants substantial deference. The VRA addresses the combination of race discrimination and the right to vote, which is “preserva­ tive of all rights.” Yick Wo v. Hopkins, 118 U. S. 356, 370 (1886). When confronting the most constitutionally invid­ ious form of discrimination, and the most fundamental right in our democratic system, Congress’ power to act is at its height.

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The basis for this deference is firmly rooted in both constitutional text and precedent. The Fifteenth Amend­ ment, which targets precisely and only racial discrimina­ tion in voting rights, states that, in this domain, “Congress shall have power to enforce this article by appropriate legislation.”2 In choosing this language, the Amendment’s framers invoked Chief Justice Marshall’s formulation of the scope of Congress’ powers under the Necessary and Proper Clause:
“Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.” McCulloch v. Maryland, 4 Wheat. 316, 421 (1819) (emphasis added).
It cannot tenably be maintained that the VRA, an Act of Congress adopted to shield the right to vote from racial discrimination, is inconsistent with the letter or spirit of the Fifteenth Amendment, or any provision of the Consti­ tution read in light of the Civil War Amendments. No­ where in today’s opinion, or in Northwest Austin,3 is there
——————
2 The Constitution uses the words “right to vote” in five separate places: the Fourteenth, Fifteenth, Nineteenth, Twenty-Fourth, and Twenty-Sixth Amendments. Each of these Amendments contains the same broad empowerment of Congress to enact “appropriate legisla­ tion” to enforce the protected right. The implication is unmistakable: Under our constitutional structure, Congress holds the lead rein in making the right to vote equally real for all U. S. citizens. These Amendments are in line with the special role assigned to Congress in protecting the integrity of the democratic process in federal elections. U. S. Const., Art. I, §4 (“[T]he Congress may at any time by Law make or alter” regulations concerning the “Times, Places and Manner of holding Elections for Senators and Representatives.”); Arizona v. Inter Tribal Council of Ariz., Inc., ante, at 5–6.
3 Acknowledging the existence of “serious constitutional questions,” see ante, at 22 (internal quotation marks omitted), does not suggest how those questions should be answered.

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clear recognition of the transformative effect the Fifteenth Amendment aimed to achieve. Notably, “the Founders’ first successful amendment told Congress that it could ‘make no law’ over a certain domain”; in contrast, the Civil War Amendments used “language [that] authorized trans­ formative new federal statutes to uproot all vestiges of unfreedom and inequality” and provided “sweeping en­ forcement powers . . . to enact ‘appropriate’ legislation targeting state abuses.” A. Amar, America’s Constitution: A Biography 361, 363, 399 (2005). See also McConnell, Institutions and Interpretation: A Critique of City of Boerne v. Flores, 111 Harv. L. Rev. 153, 182 (1997) (quoting Civil War-era framer that “the remedy for the violation of the fourteenth and fifteenth amendments was expressly not left to the courts. The remedy was legislative.”).
The stated purpose of the Civil War Amendments was to arm Congress with the power and authority to protect all persons within the Nation from violations of their rights by the States. In exercising that power, then, Congress may use “all means which are appropriate, which are plainly adapted” to the constitutional ends declared by these Amendments. McCulloch, 4 Wheat., at 421. So when Congress acts to enforce the right to vote free from racial discrimination, we ask not whether Congress has chosen the means most wise, but whether Congress has rationally selected means appropriate to a legitimate end. “It is not for us to review the congressional resolution of [the need for its chosen remedy]. It is enough that we be able to perceive a basis upon which the Congress might resolve the conflict as it did.” Katzenbach v. Morgan, 384 U. S. 641, 653 (1966).
Until today, in considering the constitutionality of the VRA, the Court has accorded Congress the full measure of respect its judgments in this domain should garner. South Carolina v. Katzenbach supplies the standard of review:

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“As against the reserved powers of the States, Congress may use any rational means to effectuate the constitu­ tional prohibition of racial discrimination in voting.” 383 U. S., at 324. Faced with subsequent reauthorizations of the VRA, the Court has reaffirmed this standard. E.g., City of Rome, 446 U. S., at 178. Today’s Court does not purport to alter settled precedent establishing that the dispositive question is whether Congress has employed “rational means.”
For three reasons, legislation reauthorizing an existing statute is especially likely to satisfy the minimal require­ ments of the rational-basis test. First, when reauthorization is at issue, Congress has already assembled a legislative record justifying the initial legislation. Congress is en­ titled to consider that preexisting record as well as the record before it at the time of the vote on reauthorization. This is especially true where, as here, the Court has re­ peatedly affirmed the statute’s constitutionality and Con­ gress has adhered to the very model the Court has upheld. See id., at 174 (“The appellants are asking us to do noth­ ing less than overrule our decision in South Carolina v. Katzenbach . . . , in which we upheld the constitutionality of the Act.”); Lopez v. Monterey County, 525 U. S. 266, 283 (1999) (similar).
Second, the very fact that reauthorization is necessary arises because Congress has built a temporal limitation into the Act. It has pledged to review, after a span of years (first 15, then 25) and in light of contemporary evidence, the continued need for the VRA. Cf. Grutter v. Bollinger, 539 U. S. 306, 343 (2003) (anticipating, but not guaranteeing, that, in 25 years, “the use of racial prefer­ ences [in higher education] will no longer be necessary”).
Third, a reviewing court should expect the record sup­ porting reauthorization to be less stark than the record originally made. Demand for a record of violations equiva­ lent to the one earlier made would expose Congress to a

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catch-22. If the statute was working, there would be less evidence of discrimination, so opponents might argue that Congress should not be allowed to renew the statute. In contrast, if the statute was not working, there would be plenty of evidence of discrimination, but scant reason to renew a failed regulatory regime. See Persily 193–194.
This is not to suggest that congressional power in this area is limitless. It is this Court’s responsibility to ensure that Congress has used appropriate means. The question meet for judicial review is whether the chosen means are “adapted to carry out the objects the amendments have in view.” Ex parte Virginia, 100 U. S. 339, 346 (1880). The Court’s role, then, is not to substitute its judgment for that of Congress, but to determine whether the legislative record sufficed to show that “Congress could rationally have determined that [its chosen] provisions were appro­ priate methods.” City of Rome, 446 U. S., at 176–177.
In summary, the Constitution vests broad power in Congress to protect the right to vote, and in particular to combat racial discrimination in voting. This Court has repeatedly reaffirmed Congress’ prerogative to use any rational means in exercise of its power in this area. And both precedent and logic dictate that the rational-means test should be easier to satisfy, and the burden on the statute’s challenger should be higher, when what is at issue is the reauthorization of a remedy that the Court has previously affirmed, and that Congress found, from con­ temporary evidence, to be working to advance the legisla­ ture’s legitimate objective.
III
The 2006 reauthorization of the Voting Rights Act fully satisfies the standard stated in McCulloch, 4 Wheat., at 421: Congress may choose any means “appropriate” and “plainly adapted to” a legitimate constitutional end. As we shall see, it is implausible to suggest otherwise.

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A
I begin with the evidence on which Congress based its decision to continue the preclearance remedy. The surest way to evaluate whether that remedy remains in order is to see if preclearance is still effectively preventing discrim­ inatory changes to voting laws. See City of Rome, 446 U. S., at 181 (identifying “information on the number and types of submissions made by covered jurisdictions and the number and nature of objections interposed by the Attorney General” as a primary basis for upholding the 1975 reauthorization). On that score, the record before Congress was huge. In fact, Congress found there were more DOJ objections between 1982 and 2004 (626) than there were between 1965 and the 1982 reauthorization (490). 1 Voting Rights Act: Evidence of Continued Need, Hearing before the Subcommittee on the Constitution of the House Committee on the Judiciary, 109th Cong., 2d Sess., p. 172 (2006) (hereinafter Evidence of Continued Need).
All told, between 1982 and 2006, DOJ objections blocked over 700 voting changes based on a determination that the changes were discriminatory. H. R. Rep. No. 109–478, at 21. Congress found that the majority of DOJ objections included findings of discriminatory intent, see 679 F. 3d, at 867, and that the changes blocked by preclearance were “calculated decisions to keep minority voters from fully participating in the political process.” H. R. Rep. 109–478, at 21. On top of that, over the same time period the DOJ and private plaintiffs succeeded in more than 100 actions to enforce the §5 preclearance requirements. 1 Evidence of Continued Need 186, 250.
In addition to blocking proposed voting changes through preclearance, DOJ may request more information from a jurisdiction proposing a change. In turn, the jurisdiction may modify or withdraw the proposed change. The num­ ber of such modifications or withdrawals provides an

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indication of how many discriminatory proposals are deterred without need for formal objection. Congress received evidence that more than 800 proposed changes were altered or withdrawn since the last reauthorization in 1982. H. R. Rep. No. 109–478, at 40–41.4 Congress also received empirical studies finding that DOJ’s requests for more information had a significant effect on the degree to which covered jurisdictions “compl[ied] with their obliga­ tio[n]” to protect minority voting rights. 2 Evidence of Continued Need 2555.
Congress also received evidence that litigation under §2 of the VRA was an inadequate substitute for preclearance in the covered jurisdictions. Litigation occurs only after the fact, when the illegal voting scheme has already been put in place and individuals have been elected pursuant to it, thereby gaining the advantages of incumbency. 1 Evi­ dence of Continued Need 97. An illegal scheme might be in place for several election cycles before a §2 plaintiff can gather sufficient evidence to challenge it. 1 Voting Rights Act: Section 5 of the Act—History, Scope, and Purpose: Hearing before the Subcommittee on the Constitution of the House Committee on the Judiciary, 109th Cong., 1st Sess., p. 92 (2005) (hereinafter Section 5 Hearing). And litigation places a heavy financial burden on minority voters. See id., at 84. Congress also received evidence
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4 This number includes only changes actually proposed. Congress also received evidence that many covered jurisdictions engaged in an “informal consultation process” with DOJ before formally submitting a proposal, so that the deterrent effect of preclearance was far broader than the formal submissions alone suggest. The Continuing Need for Section 5 Pre-Clearance: Hearing before the Senate Committee on the Judiciary, 109th Cong., 2d Sess., pp. 53–54 (2006). All agree that an unsupported assertion about “deterrence” would not be sufficient to justify keeping a remedy in place in perpetuity. See ante, at 17. But it was certainly reasonable for Congress to consider the testimony of witnesses who had worked with officials in covered jurisdictions and observed a real-world deterrent effect.

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that preclearance lessened the litigation burden on cov­ ered jurisdictions themselves, because the preclearance process is far less costly than defending against a §2 claim, and clearance by DOJ substantially reduces the likelihood that a §2 claim will be mounted. Reauthorizing the Voting Rights Act’s Temporary Provisions: Policy Perspectives and Views From the Field: Hearing before the Subcommit­ tee on the Constitution, Civil Rights and Property Rights of the Senate Committee on the Judiciary, 109th Cong., 2d Sess., pp. 13, 120–121 (2006). See also Brief for States of New York, California, Mississippi, and North Carolina as Amici Curiae 8–9 (Section 5 “reduc[es] the likelihood that a jurisdiction will face costly and protracted Section 2 litigation”).
The number of discriminatory changes blocked or de­ terred by the preclearance requirement suggests that the state of voting rights in the covered jurisdictions would have been significantly different absent this remedy. Sur­ veying the type of changes stopped by the preclearance procedure conveys a sense of the extent to which §5 con­ tinues to protect minority voting rights. Set out below are characteristic examples of changes blocked in the years leading up to the 2006 reauthorization:
 In 1995, Mississippi sought to reenact a dual voter registration system, “which was initially enacted in 1892 to disenfranchise Black voters,” and for that reason, was struck down by a federal court in 1987. H. R. Rep. No. 109–478, at 39.
 Following the 2000 census, the City of Albany, Georgia, proposed a redistricting plan that DOJ found to be “designed with the purpose to limit and retrogress the increased black voting strength . . . in the city as a whole.” Id., at 37 (internal quota­ tion marks omitted).

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 In 2001, the mayor and all-white five-member Board of Aldermen of Kilmichael, Mississippi, abruptly canceled the town’s election after “an unprecedented number” of African-American can­ didates announced they were running for office. DOJ required an election, and the town elected its first black mayor and three black aldermen. Id., at 36–37.
 In 2006, this Court found that Texas’ attempt to re­ draw a congressional district to reduce the strength of Latino voters bore “the mark of intentional dis­ crimination that could give rise to an equal protec­ tion violation,” and ordered the district redrawn in compliance with the VRA. League of United Latin American Citizens v. Perry, 548 U. S. 399, 440 (2006). In response, Texas sought to undermine this Court’s order by curtailing early voting in the district, but was blocked by an action to enforce the §5 preclearance requirement. See Order in League of United Latin American Citizens v. Texas, No. 06–cv–1046 (WD Tex.), Doc. 8.
 In 2003, after African-Americans won a majority of the seats on the school board for the first time in history, Charleston County, South Carolina, pro­ posed an at-large voting mechanism for the board. The proposal, made without consulting any of the African-American members of the school board, was found to be an “ ‘exact replica’ ” of an earlier voting scheme that, a federal court had determined, violated the VRA. 811 F. Supp. 2d 424, 483 (DDC 2011). See also S. Rep. No. 109–295, at 309. DOJ invoked §5 to block the proposal.
 In 1993, the City of Millen, Georgia, proposed to de­ lay the election in a majority-black district by two

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years, leaving that district without representation on the city council while the neighboring majority­ white district would have three representatives. 1 Section 5 Hearing 744. DOJ blocked the proposal. The county then sought to move a polling place from a predominantly black neighborhood in the city to an inaccessible location in a predominantly white neighborhood outside city limits. Id., at 816.
 In 2004, Waller County, Texas, threatened to prose­ cute two black students after they announced their intention to run for office. The county then at­ tempted to reduce the availability of early voting in that election at polling places near a historically black university. 679 F. 3d, at 865–866.
 In 1990, Dallas County, Alabama, whose county seat is the City of Selma, sought to purge its voter rolls of many black voters. DOJ rejected the purge as discriminatory, noting that it would have disquali­ fied many citizens from voting “simply because they failed to pick up or return a voter update form, when there was no valid requirement that they do so.” 1 Section 5 Hearing 356.
These examples, and scores more like them, fill the pages of the legislative record. The evidence was indeed sufficient to support Congress’ conclusion that “racial discrimination in voting in covered jurisdictions [re­ mained] serious and pervasive.” 679 F. 3d, at 865.5
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5 For an illustration postdating the 2006 reauthorization, see South Carolina v. United States, 898 F. Supp. 2d 30 (DC 2012), which in­ volved a South Carolina voter-identification law enacted in 2011. Concerned that the law would burden minority voters, DOJ brought a §5 enforcement action to block the law’s implementation. In the course of the litigation, South Carolina officials agreed to binding interpreta­ tions that made it “far easier than some might have expected or feared” for South Carolina citizens to vote. Id., at 37. A three-judge panel

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Congress further received evidence indicating that formal requests of the kind set out above represented only the tip of the iceberg. There was what one commentator described as an “avalanche of case studies of voting rights violations in the covered jurisdictions,” ranging from “outright intimidation and violence against minority voters” to “more subtle forms of voting rights depriva­ tions.” Persily 202 (footnote omitted). This evidence gave Congress ever more reason to conclude that the time had not yet come for relaxed vigilance against the scourge of race discrimination in voting.
True, conditions in the South have impressively im­ proved since passage of the Voting Rights Act. Congress noted this improvement and found that the VRA was the driving force behind it. 2006 Reauthorization §2(b)(1). But Congress also found that voting discrimination had evolved into subtler second-generation barriers, and that eliminating preclearance would risk loss of the gains that had been made. §§2(b)(2), (9). Concerns of this order, the Court previously found, gave Congress adequate cause to reauthorize the VRA. City of Rome, 446 U. S., at 180–182 (congressional reauthorization of the preclearance re­ quirement was justified based on “the number and nature of objections interposed by the Attorney General” since the prior reauthorization; extension was “necessary to pre­ serve the limited and fragile achievements of the Act and to promote further amelioration of voting discrimination”) (internal quotation marks omitted). Facing such evidence then, the Court expressly rejected the argument that disparities in voter turnout and number of elected officials
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precleared the law after adopting both interpretations as an express “condition of preclearance.” Id., at 37–38. Two of the judges commented that the case demonstrated “the continuing utility of Section 5 of the Voting Rights Act in deterring problematic, and hence encouraging non-discriminatory, changes in state and local voting laws.” Id., at 54 (opinion of Bates, J.).

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were the only metrics capable of justifying reauthorization of the VRA. Ibid.
B
I turn next to the evidence on which Congress based its decision to reauthorize the coverage formula in §4(b). Because Congress did not alter the coverage formula, the same jurisdictions previously subject to preclearance continue to be covered by this remedy. The evidence just described, of preclearance’s continuing efficacy in blocking constitutional violations in the covered jurisdictions, itself grounded Congress’ conclusion that the remedy should be retained for those jurisdictions.
There is no question, moreover, that the covered juris­ dictions have a unique history of problems with racial discrimination in voting. Ante, at 12–13. Consideration of this long history, still in living memory, was altogether appropriate. The Court criticizes Congress for failing to recognize that “history did not end in 1965.” Ante, at 20. But the Court ignores that “what’s past is prologue.” W. Shakespeare, The Tempest, act 2, sc. 1. And “[t]hose who cannot remember the past are condemned to repeat it.” 1 G. Santayana, The Life of Reason 284 (1905). Congress was especially mindful of the need to reinforce the gains already made and to prevent backsliding. 2006 Reauthor­ ization §2(b)(9).
Of particular importance, even after 40 years and thou­ sands of discriminatory changes blocked by preclearance, conditions in the covered jurisdictions demonstrated that the formula was still justified by “current needs.” Northwest Austin, 557 U. S., at 203.
Congress learned of these conditions through a report, known as the Katz study, that looked at §2 suits between 1982 and 2004. To Examine the Impact and Effectiveness of the Voting Rights Act: Hearing before the Subcommit­ tee on the Constitution of the House Committee on the

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Judiciary, 109th Cong., 1st Sess., pp. 964–1124 (2005) (hereinafter Impact and Effectiveness). Because the pri­ vate right of action authorized by §2 of the VRA applies nationwide, a comparison of §2 lawsuits in covered and noncovered jurisdictions provides an appropriate yardstick for measuring differences between covered and noncovered jurisdictions. If differences in the risk of voting discrimi­ nation between covered and noncovered jurisdictions had disappeared, one would expect that the rate of successful §2 lawsuits would be roughly the same in both areas.6 The study’s findings, however, indicated that racial discrimi­ nation in voting remains “concentrated in the jurisdictions singled out for preclearance.” Northwest Austin, 557 U. S., at 203.
Although covered jurisdictions account for less than 25 percent of the country’s population, the Katz study re­ vealed that they accounted for 56 percent of successful §2 litigation since 1982. Impact and Effectiveness 974. Controlling for population, there were nearly four times as many successful §2 cases in covered jurisdictions as there were in noncovered jurisdictions. 679 F. 3d, at 874. The Katz study further found that §2 lawsuits are more likely to succeed when they are filed in covered jurisdictions than in noncovered jurisdictions. Impact and Effective­ ness 974. From these findings—ignored by the Court— Congress reasonably concluded that the coverage formula continues to identify the jurisdictions of greatest concern.
The evidence before Congress, furthermore, indicated that voting in the covered jurisdictions was more racially polarized than elsewhere in the country. H. R. Rep. No. 109–478, at 34–35. While racially polarized voting alone
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6 Because preclearance occurs only in covered jurisdictions and can be expected to stop the most obviously objectionable measures, one would expect a lower rate of successful §2 lawsuits in those jurisdictions if the risk of voting discrimination there were the same as elsewhere in the country.

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does not signal a constitutional violation, it is a factor that increases the vulnerability of racial minorities to dis­ criminatory changes in voting law. The reason is twofold. First, racial polarization means that racial minorities are at risk of being systematically outvoted and having their interests underrepresented in legislatures. Second, “when political preferences fall along racial lines, the natural inclinations of incumbents and ruling parties to entrench themselves have predictable racial effects. Under circum­ stances of severe racial polarization, efforts to gain politi­ cal advantage translate into race-specific disadvantages.” Ansolabehere, Persily, & Stewart, Regional Differences in Racial Polarization in the 2012 Presidential Election: Implications for the Constitutionality of Section 5 of the Voting Rights Act, 126 Harv. L. Rev. Forum 205, 209 (2013).
In other words, a governing political coalition has an incentive to prevent changes in the existing balance of voting power. When voting is racially polarized, efforts by the ruling party to pursue that incentive “will inevitably discriminate against a racial group.” Ibid. Just as build­ ings in California have a greater need to be earthquake­ proofed, places where there is greater racial polarization in voting have a greater need for prophylactic measures to prevent purposeful race discrimination. This point was understood by Congress and is well recognized in the academic literature. See 2006 Reauthorization §2(b)(3), 120 Stat. 577 (“The continued evidence of racially polar­ ized voting in each of the jurisdictions covered by the [preclearance requirement] demonstrates that racial and language minorities remain politically vulnerable”); H. R. Rep. No. 109–478, at 35; Davidson, The Recent Evolution of Voting Rights Law Affecting Racial and Language Minorities, in Quiet Revolution 21, 22.
The case for retaining a coverage formula that met needs on the ground was therefore solid. Congress might

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have been charged with rigidity had it afforded covered jurisdictions no way out or ignored jurisdictions that needed superintendence. Congress, however, responded to this concern. Critical components of the congressional design are the statutory provisions allowing jurisdictions to “bail out” of preclearance, and for court-ordered “bail ins.” See Northwest Austin, 557 U. S., at 199. The VRA permits a jurisdiction to bail out by showing that it has complied with the Act for ten years, and has engaged in efforts to eliminate intimidation and harassment of vot­ ers. 42 U. S. C. §1973b(a) (2006 ed. and Supp. V). It also authorizes a court to subject a noncovered jurisdiction to federal preclearance upon finding that violations of the Fourteenth and Fifteenth Amendments have occurred there. §1973a(c) (2006 ed.).
Congress was satisfied that the VRA’s bailout mecha­ nism provided an effective means of adjusting the VRA’s coverage over time. H. R. Rep. No. 109–478, at 25 (the success of bailout “illustrates that: (1) covered status is neither permanent nor over-broad; and (2) covered status has been and continues to be within the control of the jurisdiction such that those jurisdictions that have a genu­ inely clean record and want to terminate coverage have the ability to do so”). Nearly 200 jurisdictions have suc­ cessfully bailed out of the preclearance requirement, and DOJ has consented to every bailout application filed by an eligible jurisdiction since the current bailout procedure became effective in 1984. Brief for Federal Respondent 54. The bail-in mechanism has also worked. Several jurisdic­ tions have been subject to federal preclearance by court orders, including the States of New Mexico and Arkansas. App. to Brief for Federal Respondent 1a–3a.
This experience exposes the inaccuracy of the Court’s portrayal of the Act as static, unchanged since 1965. Congress designed the VRA to be a dynamic statute, capa­ ble of adjusting to changing conditions. True, many cov­

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ered jurisdictions have not been able to bail out due to recent acts of noncompliance with the VRA, but that truth reinforces the congressional judgment that these jurisdic­ tions were rightfully subject to preclearance, and ought to remain under that regime.
IV
Congress approached the 2006 reauthorization of the VRA with great care and seriousness. The same cannot be said of the Court’s opinion today. The Court makes no genuine attempt to engage with the massive legislative record that Congress assembled. Instead, it relies on increases in voter registration and turnout as if that were the whole story. See supra, at 18–19. Without even identifying a standard of review, the Court dismissively brushes off arguments based on “data from the record,” and declines to enter the “debat[e about] what [the] record shows.” Ante, at 20–21. One would expect more from an opinion striking at the heart of the Nation’s signal piece of civil-rights legislation.
I note the most disturbing lapses. First, by what right, given its usual restraint, does the Court even address Shelby County’s facial challenge to the VRA? Second, the Court veers away from controlling precedent regarding the “equal sovereignty” doctrine without even acknowledging that it is doing so. Third, hardly showing the respect ordinarily paid when Congress acts to implement the Civil War Amendments, and as just stressed, the Court does not even deign to grapple with the legislative record.
A
Shelby County launched a purely facial challenge to the VRA’s 2006 reauthorization. “A facial challenge to a legislative Act,” the Court has other times said, “is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circum­

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stances exists under which the Act would be valid.” United States v. Salerno, 481 U. S. 739, 745 (1987).
“[U]nder our constitutional system[,] courts are not roving commissions assigned to pass judgment on the validity of the Nation’s laws.” Broadrick v. Oklahoma, 413 U. S. 601, 610–611 (1973). Instead, the “judicial Power” is limited to deciding particular “Cases” and “Controversies.” U. S. Const., Art. III, §2. “Embedded in the traditional rules governing constitutional adjudication is the principle that a person to whom a statute may constitutionally be applied will not be heard to challenge that statute on the ground that it may conceivably be applied unconstitution­ ally to others, in other situations not before the Court.” Broadrick, 413 U. S., at 610. Yet the Court’s opinion in this case contains not a word explaining why Congress lacks the power to subject to preclearance the particular plaintiff that initiated this lawsuit—Shelby County, Ala­ bama. The reason for the Court’s silence is apparent, for as applied to Shelby County, the VRA’s preclearance requirement is hardly contestable.
Alabama is home to Selma, site of the “Bloody Sunday” beatings of civil-rights demonstrators that served as the catalyst for the VRA’s enactment. Following those events, Martin Luther King, Jr., led a march from Selma to Mont­ gomery, Alabama’s capital, where he called for passage of the VRA. If the Act passed, he foresaw, progress could be made even in Alabama, but there had to be a steadfast national commitment to see the task through to comple­ tion. In King’s words, “the arc of the moral universe is long, but it bends toward justice.” G. May, Bending To­ ward Justice: The Voting Rights Act and the Transfor­ mation of American Democracy 144 (2013).
History has proved King right. Although circumstances in Alabama have changed, serious concerns remain. Between 1982 and 2005, Alabama had one of the highest rates of successful §2 suits, second only to its VRA-covered

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neighbor Mississippi. 679 F. 3d, at 897 (Williams, J., dissenting). In other words, even while subject to the restraining effect of §5, Alabama was found to have “deni[ed] or abridge[d]” voting rights “on account of race or color” more frequently than nearly all other States in the Union. 42 U. S. C. §1973(a). This fact prompted the dissenting judge below to concede that “a more narrowly tailored coverage formula” capturing Alabama and a handful of other jurisdictions with an established track record of racial discrimination in voting “might be defensi­ ble.” 679 F. 3d, at 897 (opinion of Williams, J.). That is an understatement. Alabama’s sorry history of §2 violations alone provides sufficient justification for Congress’ deter­ mination in 2006 that the State should remain subject to §5’s preclearance requirement.7
A few examples suffice to demonstrate that, at least in Alabama, the “current burdens” imposed by §5’s preclear­ ance requirement are “justified by current needs.” Northwest Austin, 557 U. S., at 203. In the interim between the VRA’s 1982 and 2006 reauthorizations, this Court twice confronted purposeful racial discrimination in Alabama. In Pleasant Grove v. United States, 479 U. S. 462 (1987), the Court held that Pleasant Grove—a city in Jefferson County, Shelby County’s neighbor—engaged in purposeful discrimination by annexing all-white areas while rejecting the annexation request of an adjacent black neighborhood. The city had “shown unambiguous opposition to racial
——————
7 This lawsuit was filed by Shelby County, a political subdivision of Alabama, rather than by the State itself. Nevertheless, it is appropri­ ate to judge Shelby County’s constitutional challenge in light of in­ stances of discrimination statewide because Shelby County is subject to §5’s preclearance requirement by virtue of Alabama’s designation as a covered jurisdiction under §4(b) of the VRA. See ante, at 7. In any event, Shelby County’s recent record of employing an at-large electoral system tainted by intentional racial discrimination is by itself sufficient to justify subjecting the county to §5’s preclearance mandate. See infra, at 26.

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integration, both before and after the passage of the fed­ eral civil rights laws,” and its strategic annexations appeared to be an attempt “to provide for the growth of a monolithic white voting block” for “the impermissible purpose of minimizing future black voting strength.” Id., at 465, 471–472.
Two years before Pleasant Grove, the Court in Hunter v. Underwood, 471 U. S. 222 (1985), struck down a provision of the Alabama Constitution that prohibited individuals convicted of misdemeanor offenses “involving moral turpi­ tude” from voting. Id., at 223 (internal quotation marks omitted). The provision violated the Fourteenth Amend­ ment’s Equal Protection Clause, the Court unanimously concluded, because “its original enactment was motivated by a desire to discriminate against blacks on account of race[,] and the [provision] continues to this day to have that effect.” Id., at 233.
Pleasant Grove and Hunter were not anomalies. In 1986, a Federal District Judge concluded that the at-large election systems in several Alabama counties violated §2. Dillard v. Crenshaw Cty., 640 F. Supp. 1347, 1354–1363 (MD Ala. 1986). Summarizing its findings, the court stated that “[f ]rom the late 1800’s through the present, [Alabama] has consistently erected barriers to keep black persons from full and equal participation in the social, economic, and political life of the state.” Id., at 1360.
The Dillard litigation ultimately expanded to include 183 cities, counties, and school boards employing discrim­ inatory at-large election systems. Dillard v. Baldwin Cty. Bd. of Ed., 686 F. Supp. 1459, 1461 (MD Ala. 1988). One of those defendants was Shelby County, which eventually signed a consent decree to resolve the claims against it. See Dillard v. Crenshaw Cty., 748 F. Supp. 819 (MD Ala. 1990).
Although the Dillard litigation resulted in overhauls of numerous electoral systems tainted by racial discrimina­

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tion, concerns about backsliding persist. In 2008, for example, the city of Calera, located in Shelby County, requested preclearance of a redistricting plan that “would have eliminated the city’s sole majority-black district, which had been created pursuant to the consent decree in Dillard.” 811 F. Supp. 2d 424, 443 (DC 2011). Although DOJ objected to the plan, Calera forged ahead with elec­ tions based on the unprecleared voting changes, resulting in the defeat of the incumbent African-American council­ man who represented the former majority-black district. Ibid. The city’s defiance required DOJ to bring a §5 en­ forcement action that ultimately yielded appropriate redress, including restoration of the majority-black dis­ trict. Ibid.; Brief for Respondent-Intervenors Earl Cun­ ningham et al. 20.
A recent FBI investigation provides a further window into the persistence of racial discrimination in state poli­ tics. See United States v. McGregor, 824 F. Supp. 2d 1339, 1344–1348 (MD Ala. 2011). Recording devices worn by state legislators cooperating with the FBI’s investigation captured conversations between members of the state legislature and their political allies. The recorded conver­ sations are shocking. Members of the state Senate deri­ sively refer to African-Americans as “Aborigines” and talk openly of their aim to quash a particular gambling-related referendum because the referendum, if placed on the ballot, might increase African-American voter turnout. Id., at 1345–1346 (internal quotation marks omitted). See also id., at 1345 (legislators and their allies expressed concern that if the referendum were placed on the ballot, “ ‘[e]very black, every illiterate’ would be ‘bused [to the polls] on HUD financed buses’ ”). These conversations oc­ curred not in the 1870’s, or even in the 1960’s, they took place in 2010. Id., at 1344–1345. The District Judge presiding over the criminal trial at which the recorded conversations were introduced commented that the “re­

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cordings represent compelling evidence that political exclusion through racism remains a real and enduring problem” in Alabama. Id., at 1347. Racist sentiments, the judge observed, “remain regrettably entrenched in the high echelons of state government.” Ibid.
These recent episodes forcefully demonstrate that §5’s preclearance requirement is constitutional as applied to Alabama and its political subdivisions.8 And under our case law, that conclusion should suffice to resolve this case. See United States v. Raines, 362 U. S. 17, 24–25 (1960) (“[I]f the complaint here called for an application of the statute clearly constitutional under the Fifteenth Amendment, that should have been an end to the question of constitutionality.”). See also Nevada Dept. of Human Resources v. Hibbs, 538 U. S. 721, 743 (2003) (SCALIA, J., dissenting) (where, as here, a state or local government raises a facial challenge to a federal statute on the ground that it exceeds Congress’ enforcement powers under the Civil War Amendments, the challenge fails if the opposing party is able to show that the statute “could constitution­ ally be applied to some jurisdictions”).
This Court has consistently rejected constitutional challenges to legislation enacted pursuant to Congress’ enforcement powers under the Civil War Amendments upon finding that the legislation was constitutional as applied to the particular set of circumstances before the Court. See United States v. Georgia, 546 U. S. 151, 159 (2006) (Title II of the Americans with Disabilities Act of 1990 (ADA) validly abrogates state sovereign immunity “insofar as [it] creates a private cause of action . . . for conduct that actually violates the Fourteenth Amend­

——————
8 Congress continued preclearance over Alabama, including Shelby County, after considering evidence of current barriers there to minority voting clout. Shelby County, thus, is no “redhead” caught up in an arbitrary scheme. See ante, at 22.

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ment”); Tennessee v. Lane, 541 U. S. 509, 530–534 (2004) (Title II of the ADA is constitutional “as it applies to the class of cases implicating the fundamental right of access to the courts”); Raines, 362 U. S., at 24–26 (federal statute proscribing deprivations of the right to vote based on race was constitutional as applied to the state officials before the Court, even if it could not constitutionally be applied to other parties). A similar approach is warranted here.9
The VRA’s exceptionally broad severability provision makes it particularly inappropriate for the Court to allow Shelby County to mount a facial challenge to §§4(b) and 5 of the VRA, even though application of those provisions to the county falls well within the bounds of Congress’ legis­ lative authority. The severability provision states:
“If any provision of [this Act] or the application thereof to any person or circumstances is held invalid, the remainder of [the Act] and the application of the provision to other persons not similarly situated or to other circumstances shall not be affected thereby.” 42 U. S. C. §1973p.
In other words, even if the VRA could not constitutionally be applied to certain States—e.g., Arizona and Alaska, see ante, at 8—§1973p calls for those unconstitutional applica­ tions to be severed, leaving the Act in place for juris­ dictions as to which its application does not transgress constitutional limits.
——————
9 The Court does not contest that Alabama’s history of racial discrim­ ination provides a sufficient basis for Congress to require Alabama and its political subdivisions to preclear electoral changes. Nevertheless, the Court asserts that Shelby County may prevail on its facial chal­ lenge to §4’s coverage formula because it is subject to §5’s preclearance requirement by virtue of that formula. See ante, at 22 (“The county was selected [for preclearance] based on th[e] [coverage] formula.”). This misses the reality that Congress decided to subject Alabama to preclearance based on evidence of continuing constitutional violations in that State. See supra, at 28, n. 8.

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Nevertheless, the Court suggests that limiting the jurisdictional scope of the VRA in an appropriate case would be “to try our hand at updating the statute.” Ante, at 22. Just last Term, however, the Court rejected this very argument when addressing a materially identical severability provision, explaining that such a provision is “Congress’ explicit textual instruction to leave unaffected the remainder of [the Act]” if any particular “application is unconstitutional.” National Federation of Independent Business v. Sebelius, 567 U. S. __, __ (2012) (plurality opinion) (slip op., at 56) (internal quotation marks omit­ ted); id., at __ (GINSBURG, J., concurring in part, concur­ ring in judgment in part, and dissenting in part) (slip op., at 60) (agreeing with the plurality’s severability analysis). See also Raines, 362 U. S., at 23 (a statute capable of some constitutional applications may nonetheless be susceptible to a facial challenge only in “that rarest of cases where this Court can justifiably think itself able confidently to discern that Congress would not have desired its legisla­ tion to stand at all unless it could validly stand in its every application”). Leaping to resolve Shelby County’s facial challenge without considering whether application of the VRA to Shelby County is constitutional, or even address­ ing the VRA’s severability provision, the Court’s opinion can hardly be described as an exemplar of restrained and moderate decisionmaking. Quite the opposite. Hubris is a fit word for today’s demolition of the VRA.
B
The Court stops any application of §5 by holding that §4(b)’s coverage formula is unconstitutional. It pins this result, in large measure, to “the fundamental principle of equal sovereignty.” Ante, at 10–11, 23. In Katzenbach, however, the Court held, in no uncertain terms, that the principle “applies only to the terms upon which States are admitted to the Union, and not to the remedies for local

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evils which have subsequently appeared.” 383 U. S., at 328–329 (emphasis added).
Katzenbach, the Court acknowledges, “rejected the notion that the [equal sovereignty] principle operate[s] as a bar on differential treatment outside [the] context [of the admission of new States].” Ante, at 11 (citing 383 U. S., at 328–329) (emphasis omitted). But the Court clouds that once clear understanding by citing dictum from Northwest Austin to convey that the principle of equal sovereignty “remains highly pertinent in assessing subsequent dispar­ ate treatment of States.” Ante, at 11 (citing 557 U. S., at 203). See also ante, at 23 (relying on Northwest Austin’s “emphasis on [the] significance” of the equal-sovereignty principle). If the Court is suggesting that dictum in Northwest Austin silently overruled Katzenbach’s limita­ tion of the equal sovereignty doctrine to “the admission of new States,” the suggestion is untenable. Northwest Austin cited Katzenbach’s holding in the course of declining to decide whether the VRA was constitutional or even what standard of review applied to the question. 557 U. S., at 203–204. In today’s decision, the Court ratchets up what was pure dictum in Northwest Austin, attributing breadth to the equal sovereignty principle in flat contra­ diction of Katzenbach. The Court does so with nary an explanation of why it finds Katzenbach wrong, let alone any discussion of whether stare decisis nonetheless coun­ sels adherence to Katzenbach’s ruling on the limited “sig­ nificance” of the equal sovereignty principle.
Today’s unprecedented extension of the equal sover­ eignty principle outside its proper domain—the admission of new States—is capable of much mischief. Federal statutes that treat States disparately are hardly novelties. See, e.g., 28 U. S. C. §3704 (no State may operate or permit a sports-related gambling scheme, unless that State con­ ducted such a scheme “at any time during the period beginning January 1, 1976, and ending August 31, 1990”);

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26 U. S. C. §142(l) (EPA required to locate green building project in a State meeting specified population criteria); 42 U. S. C. §3796bb (at least 50 percent of rural drug en­ forcement assistance funding must be allocated to States with “a population density of fifty-two or fewer persons per square mile or a State in which the largest county has fewer than one hundred and fifty thousand people, based on the decennial census of 1990 through fiscal year 1997”); §§13925, 13971 (similar population criteria for funding to combat rural domestic violence); §10136 (specifying rules applicable to Nevada’s Yucca Mountain nuclear waste site, and providing that “[n]o State, other than the State of Nevada, may receive financial assistance under this sub­ section after December 22, 1987”). Do such provisions remain safe given the Court’s expansion of equal sover­ eignty’s sway?
Of gravest concern, Congress relied on our pathmarking Katzenbach decision in each reauthorization of the VRA. It had every reason to believe that the Act’s limited geo­ graphical scope would weigh in favor of, not against, the Act’s constitutionality. See, e.g., United States v. Morrison, 529 U. S. 598, 626–627 (2000) (confining preclearance regime to States with a record of discrimination bolstered the VRA’s constitutionality). Congress could hardly have foreseen that the VRA’s limited geographic reach would render the Act constitutionally suspect. See Persily 195 (“[S]upporters of the Act sought to develop an evidentiary record for the principal purpose of explaining why the covered jurisdictions should remain covered, rather than justifying the coverage of certain jurisdictions but not others.”).
In the Court’s conception, it appears, defenders of the VRA could not prevail upon showing what the record overwhelmingly bears out, i.e., that there is a need for continuing the preclearance regime in covered States. In addition, the defenders would have to disprove the exist­

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ence of a comparable need elsewhere. See Tr. of Oral Arg. 61–62 (suggesting that proof of egregious episodes of racial discrimination in covered jurisdictions would not suffice to carry the day for the VRA, unless such episodes are shown to be absent elsewhere). I am aware of no precedent for imposing such a double burden on defenders of legislation.
C
The Court has time and again declined to upset legisla­ tion of this genre unless there was no or almost no evi­ dence of unconstitutional action by States. See, e.g., City of Boerne v. Flores, 521 U. S. 507, 530 (1997) (legislative record “mention[ed] no episodes [of the kind the legislation aimed to check] occurring in the past 40 years”). No such claim can be made about the congressional record for the 2006 VRA reauthorization. Given a record replete with examples of denial or abridgment of a paramount federal right, the Court should have left the matter where it belongs: in Congress’ bailiwick.
Instead, the Court strikes §4(b)’s coverage provision because, in its view, the provision is not based on “current conditions.” Ante, at 17. It discounts, however, that one such condition was the preclearance remedy in place in the covered jurisdictions, a remedy Congress designed both to catch discrimination before it causes harm, and to guard against return to old ways. 2006 Reauthorization §2(b)(3), (9). Volumes of evidence supported Congress’ de­ termination that the prospect of retrogression was real. Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.
But, the Court insists, the coverage formula is no good; it is based on “decades-old data and eradicated practices.” Ante, at 18. Even if the legislative record shows, as engag­ ing with it would reveal, that the formula accurately

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identifies the jurisdictions with the worst conditions of voting discrimination, that is of no moment, as the Court sees it. Congress, the Court decrees, must “star[t] from scratch.” Ante, at 23. I do not see why that should be so.
Congress’ chore was different in 1965 than it was in 2006. In 1965, there were a “small number of States . . . which in most instances were familiar to Congress by name,” on which Congress fixed its attention. Katzenbach, 383 U. S., at 328. In drafting the coverage formula, “Con­ gress began work with reliable evidence of actual voting discrimination in a great majority of the States” it sought to target. Id., at 329. “The formula [Congress] eventually evolved to describe these areas” also captured a few States that had not been the subject of congressional factfinding. Ibid. Nevertheless, the Court upheld the formula in its entirety, finding it fair “to infer a significant danger of the evil” in all places the formula covered. Ibid.
The situation Congress faced in 2006, when it took up reauthorization of the coverage formula, was not the same. By then, the formula had been in effect for many years, and all of the jurisdictions covered by it were “familiar to Congress by name.” Id., at 328. The question before Congress: Was there still a sufficient basis to support continued application of the preclearance remedy in each of those already-identified places? There was at that point no chance that the formula might inadvertently sweep in new areas that were not the subject of congressional findings. And Congress could determine from the record whether the jurisdictions captured by the coverage for­ mula still belonged under the preclearance regime. If they did, there was no need to alter the formula. That is why the Court, in addressing prior reauthorizations of the VRA, did not question the continuing “relevance” of the formula.
Consider once again the components of the record before Congress in 2006. The coverage provision identified a

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known list of places with an undisputed history of serious problems with racial discrimination in voting. Recent evidence relating to Alabama and its counties was there for all to see. Multiple Supreme Court decisions had upheld the coverage provision, most recently in 1999. There was extensive evidence that, due to the preclear­ ance mechanism, conditions in the covered jurisdictions had notably improved. And there was evidence that pre­ clearance was still having a substantial real-world effect, having stopped hundreds of discriminatory voting changes in the covered jurisdictions since the last reauthorization. In addition, there was evidence that racial polarization in voting was higher in covered jurisdictions than elsewhere, increasing the vulnerability of minority citizens in those jurisdictions. And countless witnesses, reports, and case studies documented continuing problems with voting dis­ crimination in those jurisdictions. In light of this rec­ ord, Congress had more than a reasonable basis to conclude that the existing coverage formula was not out of sync with conditions on the ground in covered areas. And certainly Shelby County was no candidate for release through the mechanism Congress provided. See supra, at 22–23, 26–28.
The Court holds §4(b) invalid on the ground that it is “irrational to base coverage on the use of voting tests 40 years ago, when such tests have been illegal since that time.” Ante, at 23. But the Court disregards what Con­ gress set about to do in enacting the VRA. That extraor­ dinary legislation scarcely stopped at the particular tests and devices that happened to exist in 1965. The grand aim of the Act is to secure to all in our polity equal citizen­ ship stature, a voice in our democracy undiluted by race. As the record for the 2006 reauthorization makes abun­ dantly clear, second-generation barriers to minority voting rights have emerged in the covered jurisdictions as at­ tempted substitutes for the first-generation barriers that

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originally triggered preclearance in those jurisdictions. See supra, at 5–6, 8, 15–17.
The sad irony of today’s decision lies in its utter failure to grasp why the VRA has proven effective. The Court appears to believe that the VRA’s success in eliminating the specific devices extant in 1965 means that preclear­ ance is no longer needed. Ante, at 21–22, 23–24. With that belief, and the argument derived from it, history repeats itself. The same assumption—that the problem could be solved when particular methods of voting discrim­ ination are identified and eliminated—was indulged and proved wrong repeatedly prior to the VRA’s enactment. Unlike prior statutes, which singled out particular tests or devices, the VRA is grounded in Congress’ recognition of the “variety and persistence” of measures designed to impair minority voting rights. Katzenbach, 383 U. S., at 311; supra, at 2. In truth, the evolution of voting discrim­ ination into more subtle second-generation barriers is powerful evidence that a remedy as effective as preclear­ ance remains vital to protect minority voting rights and prevent backsliding.
Beyond question, the VRA is no ordinary legislation. It is extraordinary because Congress embarked on a mission long delayed and of extraordinary importance: to realize the purpose and promise of the Fifteenth Amendment. For a half century, a concerted effort has been made to end racial discrimination in voting. Thanks to the Voting Rights Act, progress once the subject of a dream has been achieved and continues to be made.
The record supporting the 2006 reauthorization of the VRA is also extraordinary. It was described by the Chairman of the House Judiciary Committee as “one of the most extensive considerations of any piece of legisla­ tion that the United States Congress has dealt with in the 27½ years” he had served in the House. 152 Cong. Rec. H5143 (July 13, 2006) (statement of Rep. Sensenbrenner).

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After exhaustive evidence-gathering and deliberative process, Congress reauthorized the VRA, including the coverage provision, with overwhelming bipartisan support. It was the judgment of Congress that “40 years has not been a sufficient amount of time to eliminate the vestiges of discrimination following nearly 100 years of disregard for the dictates of the 15th amendment and to ensure that the right of all citizens to vote is protected as guaranteed by the Constitution.” 2006 Reauthorization §2(b)(7), 120 Stat. 577. That determination of the body empowered to enforce the Civil War Amendments “by appropriate legis­ lation” merits this Court’s utmost respect. In my judg­ ment, the Court errs egregiously by overriding Congress’ decision.
* * *
For the reasons stated, I would affirm the judgment of the Court of Appeals.