Shelby County, Ala. v. Holder

ALABAMA, COUNTY, SHELBY

Appellant Jr., HOLDER, in his Official

Eric H. Attorney

Capacity General States, al., Appellees. et

United

No. 11-5256. Appeals, States Court

United of Columbia Circuit.

District 19, 2012.

Argued Jan. May

Decided Thome, Flynn Linda F. At-

Diana K. torneys. Schneiderman, Attorney

Eriс T. Gener- al, Attorney General for the Office York, D. New Barbara Under- State Hood, wood, Attor- Solicitor General. Jim General, Attorney ney Office of the Gener- Mississippi, Kamala al for State General, Harris, Office of the Attorney D. Attorney the State Califor- General for nia, curiae on the for amici New were brief York, al., appellees. in support et Payton, Adegbile, Debo P. Elise C. John Ho, Boddie, Dale E. Ryan Haygood, P. B. Arthur Korgaonkar, Spit- M. Natasha Greenbaum, zer, and John M. Jon M. Non- for intervenors-appel- na were on brief al., support in Cunningham, Earl et of lees appellees. and Aderson B. Deborah N. Archer ap- for argued Rein the cause Bert W. amicus Francois were on the brief for curi- him were Wil- With on the briefs

pellant. Racial ae The New York Law School Jus- McCarthy, Consovoy, R. liam S. Thomas Project in support appellee. tice of Morrissey. and Brendan J. Wydra Elizabeth B. was on the brief for Jr., General, Neiman Solicitor John C. curiae Accountabili- amicus Constitutional for Attorney of the Office General support appellees. in ty Center Alabama, D. Tam- and Robert State General, were on bling, Attorney Assistant GRIFFITH, TATEL Before: and Ala- amicus the brief for curiae State WILLIAMS, Judges, Senior Circuit and support of appellant. bama Judge. Circuit Horne, General, Attorney Of- Thomas C. Opinion for the filed Circuit Attorney fice of the for State General TATEL. Judge Arizona, Cole, David R. Gener- Solicitor al, E. Bar- Forney L. and Michele James Dissenting opinion filed Senior General, II, Attorneys ton Assistant Judge Circuit WILLIAMS. Olens, General, Attorney S. Office Samuel TATEL, Judge: Circuit Attorney the State of of the General of Georgia, were on for amici curiae brief Municipal Utility In Northwest Austin Georgia. Arizona and States of Holder, 193, No. One v. 557 U.S. District 2504, (2009), Lechner the brief Steven J. was on as 174 L.Ed.2d 129 S.Ct. Legal amicus curiae Mountain States questions Court raised serious Supreme support appellant. Foundation constitutionality the continued about Act of Voting Rights 5 of the Harrington, Attorney, E. U.S. De- Sarah juris “covered prohibits certain Section Justice, argued the cause for partment change in making any from their dictions” her on the brief were Ron- appellee. With Jr., procedures without first demon- Attorney, Machen ald C. strating Attorney any to either the or General ited state from “depriving] any per- three-judge Washington district court life, liberty, son of property, or without change purpose that the “neither has the process due of law” or “deny[ing] to any have of denying nor mil the effect or person jurisdiction within its equal right abridging vote account of protection laws,” granted Con- 1973c(a). race or color.” 42 U.S.C. gress “power to provisions enforce” its “by Supreme Court warned that the burdens Const, appropriate legislation.” U.S. imposed by may section 5 no longer be amend. Finally, XIV. the Fifteenth justified by current needs and that its Amendment declared that right of “[t]he geographic coverage may no longer suffi- citizens ... to vote shall not be denied or ciently problem relate to the it targets. abridged by the United by any States or Although the Court had no occasion to race, State on color, account of previous questions, they resolve these are now condition of servitude” and vested Cоn- squarely Shelby before us. County, Ala- gress “power with to enforce this article bama, a jurisdiction, contends that Const, by appropriate legislation.” U.S. when reauthorized section 5 amend. XV. 2006, it exceeded its powers. enumerated disagreed Following Reconstruction, however, The district court granted “the summary judgment the Attorney for Gen- blight of racial discrimination in voting ... eral. For the reasons set forth in this infected process the electoral in parts of opinion, we affirm. our country nearly a century.” South Katzenbach, Carolina v.

I. (1966). 15 L.Ed.2d 769 As The Framers of our sought Constitution early Alabama, “the States of government to construct a federal power- Louisiana, Georgia, Mississippi, North enough ful to effectively yet function limit- Carolina, Carolina, South Virginia” and be enough to preserve ed the hard-earned gan employing tests “specifi and devices liberty fought in Indepen- the War of cally designed prevent to Negroes from They dence. feared government, not state 310, voting.” at Id. 86 Among S.Ct. 803. government, but centralized national long taxes, the most poll notorious devices were the hallmark of Old World monarchies. tests, literacy clauses, grandfather and result, As a powers delegated by “[t]he property qualifications. Shelby Cnty. ... Constitution to govern- the federal Holder, (D.D.C. 424, v. F.Supp.2d 811 “[tjhose ment, defined,” are few and while 2011); Katzenbach, see also 383 U.S. at which are to in govern- remain the State 310-11, widely 86 S.Ct. 803. Also em ments are numerous and indefinite.” The ployed, both immediately following Recon (James Madison). Federalist No. 45 Close again struction in and the mid-twentieth people, governments to the state would century, were “laws designed to dilute protect their liberties. voting black strength,” including laws But the experience of the nascent Re- “gerrymandered districts, election institut public, by slavery, divided taught elections, ed at-large annexed or dean states too could threaten individual liberty. nexed ... required huge land and bonds of War, after the So Civil the Reconstruction Shelby Cnty., officeholders.” Amendments were added to the Constitu- (internal F.Supp.2d quotation at 429 marks 1865, Adopted tion to limit state in power. omitted). the Thirteenth prohibited Amendment in- voluntary The Adopted years Congress eventually servitude. three courts and re- later, the prohib- Fourteenth Amendment sponded. Supreme struck Katzenbach, 383 U.S. adjudication.” clauses, prior v. Unit Guinn grandfather

down 926, 5 sus- 347, 803. Section States, at 86 S.Ct. 238 U.S. ed (1915), primaries, proce- election changes and white in state “all pends L.Ed. 649, 64 S.Ct. Allwright, 321 U.S. submitted to they Smith until [are] dure (1944). “en 757, 88 L.Ed. 987 three-judge Dis- by a Federal approved 1957, 1960, in legislation rights civil D.C., act[ed] or the Washington, in trict Court case- 1964, sought ‘facilitat[e] which Austin, 129 S.Ct. Nw. Attorney General.” voting discrimi against by-case litigation change seeking to jurisdiction A at 2509. at F.Supp.2d Shelby Cnty., nation.’” must either voting procedures laws or its (alteration (quoting Kat original) Attorney change to the General submit the 803). zenbach, 86 S.Ct. directly from preclearance or seek that such determined Congress soon But for- opts If it for the three-judge court. case-by-case inadequate: were measures lodges no Attorney General if the mer and being expensive, litigation, addition days, proposed sixty within objection come to a result was slow—slow 1973c(a). § take effect. 42 U.S.C. law can from оnce a state switched respond slow lodges an Attorney But if the General next—and discriminatory device to the one may submitting jurisdiction objection, the problem cure the “done little to thus had reconsideration, 28 C.F.R. request either Katzenbach, 383 voting discrimination.” 51.45(a), § or a de novo determina- seek 803. Determined 86 S.Ct. court. three-judge district tion from the racial discrimination country of “rid the 1973c(a). way, pre- Either U.S.C. 803, Congress voting,” id. juris- if the may granted clearance Rights Act of 1965. Voting passed proposed demonstrates diction the 1965 prior legislation, Unlike neither “has the change voting to its law case-by-case permanent, Act combined denying ... effect of purpose nor a set of more mechanism with enforcement account of right to vote on abridging designed to stringent, remedies temporary race or color.” Id. country where target those areas enactment, 5’s to section was concen racial discrimination Prior stay plaintiffs states could ahead perma main the Act’s trated. Section “ “standard, discriminatory any ‘by passing new provision, forbids courts nent in a that “results the old ones had practice, procedure” voting or laws as soon as ” right any States, abridgment or denial Beer v. struck down.’ United been to vote on 1357, citizen of the United States 130, 140, 47 96 425 U.S. S.Ct. 42 race or color.” U.S.C. account of (1976) (quoting H.R.Rep. No. L.Ed.2d 629 1973(a). nationwide, Applicable § section (1975)). 94-196, But section 5 at 57-58 bring against suit 2 enables individuals to inertia advantage of time and “shift[ed] challenge vot jurisdiction or any state to its perpetrators of the evil from discriminatory a ing practices that have Katzenbach, 328, 86 383 U.S. at victim.” Thornburg v. purpose or result. See Gin “the bur by placing It did so S.Ct. 803. 2752, 30, 35, 106 S.Ct. 92 gles, 478 U.S. jurisdictions to their show den on (1986). L.Ed.2d 25 nondiscriminatory changes be voting are effect.” changes put can be into those beyond case-by-ease liti Reaching fore Shelby Cnty., F.Supp.2d 811 431. Sec only in certain “cov gation applying and powerful the most “pre-empted tion thus 5 jurisdictions,” section 5—the focus ered disenfranchisement,” Nw. of black ... tools remedies litigation—“prescribes this 2509, Austin, in “un- resulting any without need for go which into effect in improvements protection presiding deniable” over voting discrimination suits minority rights, voting may id. at 2511. jurisdiction “retain for period such as [they] may deem appropriate” and order 4(b) that, Section contains formula during voting time no change enacted, originally applied pre- section 5’s take effect unless either approved any requirements clearance state or court or unopposed by Attorney Gen- political subdivision a state that “main- judicial Id. eral. This “bail-in” provision tained a test voting or device as of No- potential addresses the formula’s underin- 1, 1964, had vember and less than 50% clusiveness. registration voter or turnout in the 1964

presidential election.” Shelby Cnty., 1965, originally As enacted section 5 F.Supp.2d (citing Voting Rights at 432 was to remain in years. effect for five In 1965, 4(b), Act of No. Pub.L. Katzenbach, South Carolina v. the Su- (“1965 Act”)). 437, Stat. Congress preme Court sustained the constitutionali- chose carefully. these criteria It knew ty 5, of section holding provisions that its precisely which sought states it to cover “are a carrying valid means for out the and crafted the to capture criteria those commands of the Fifteenth Amendment.” jurisdictions. (citing testimony Id. before 337, Congress S.Ct. 803. 2005-2006). Congress Unsurprisingly, subsequently renewed the temporary pro- then, jurisdictions originally covered visions, 4(b) including sections and Alabama, in their entirety, Georgia, Loui- (for (for years), five then in 1975 siana, Carolina, Mississippi, South (for years), again seven in 1982 twen- Virginia, “were those southern states with ty-five version, years). each “[t]he cov- the worst historical records of racial dis- 4(b)] erage formula [in section remained voting.” crimination in Id. same, based on the of voting- use 4(b)’s eligibility [or tests devices]

Because section formula the rate of could registration and underinclusive, among voters, both over- and turnout all Congress but the incorporated procedures pertinent dates for assessing two these adjusting criteria First, moved from 1964 coverage over time. to include as it existed 4(a) eventually Austin, 1972.” jurisdictions section Nw. allowed at 2510. In exemption earn coverage by from made one obtain- 4(b)’s significant change ing scope: from three-judge district court a it amended declaratory the definition of “test judgment that in or de- previous (i.e., vice” to years practice five include the they providing before subject became Act) only English-language they to the had materials in used no test or device significant non-English- with purpose “for the or with the effect of populations. speaking Aug. Act of denying abridging right to vote on 94-73, 203, 4(a). 400, § Pub.L. No. 89 § account of race or color.” Stat. 401- 1965 Act (codified 1973b(f)(3)). § 02 at 42 This “bailout” U.S.C. provision, subsequently as amended, Although not the altering coverage basic potential addresses overinclu- formula, siveness, this jurisdictions change expanded allowing with section clean 4(b)’s scope encompass jurisdictions records to to terminate their pre- section 5 3(c) of obligations. Second, clearance with records discrimination section against “language require authorizes federal courts to minorities.” See Bris- pre- Bell, by 404, 405, any po- clearance coe v. 432 non-covered state or U.S. 97 S.Ct. 2428, (1977). litical subdivision found have violated 53 L.Ed.2d 439 The Su- the Fourteenth or preme Fifteenth Amendments. Court sustained the constitutionali- 1973a(e). § 42 Specifically, extension, U.S.C. courts ty respectively, each in Geor- 856 States, 526, minority group’s exercise 411 93 of a effective S.Ct.

gia v. United (1973), on an ex- 1702, City depends Rome franchise L.Ed.2d 472 the electoral 36 156, 100 States, S.Ct. the circum- amination of all relevant v. United (1980), 1548, Lopez L.Ed.2d 119 focus 64 and that “a court should not stances” 266, 119 S.Ct. Monterey County, 525 U.S. ability a mi- comparative solely on the (1999). 693, 142L.Ed.2d 728 group elect a candidate of its nority choice”), Bossier Parish and Reno v. us, the the before Significantly for issue 320, 328, Board, 528 U.S. School Rights Act Voting the 1982 version of (“Bossier II”) 866, 845 145 L.Ed.2d permis- more substantially made bailout (which “the ‘purpose’ prong held that 1982, extremely Prior to bailout was sive. dilution”). § jurisdiction retrogressive out if it 5 covers no could bail limited: (codified discriminatory voting § at 42 had tests 2006 Act U.S.C. used See subject, 1973c(b)-(d)). practices when it first became 5, even if it had since eliminated section constitutionality im- The 2006 Act’s was Cnty., Shelby practices. those mediately challenged utility “a small contrast, By at 434. after 1982 F.Supp.2d provisions. to its Nw. subject district” by any jurisdiction the Act allowed bailout Austin, finding After S.Ct. voting rights “clean” record over with a bailout, three- ineligible the district years. ten Id. previous court judge district concluded greater permitted also reauthorization Voting Rights reauthorized Act was consti- to seek bailout. number Austin Util. No. tutional. Nw. Mun. Dist. (such Previously, “only covered states as Mukasey, F.Supp.2d One v. Alabama) political or separately-covered (D.D.C.2008). appeal, Supreme On (such as North subdivisions individual Car- ques- identified two ... “serious counties) eligible olina were to seek bail- about 5’s tions” section continued constitu- 1982, political out.” After Id. subdivisions tionality, namely, whether “current within a covered state could bail out even “justified by it cur- imposes burdens” are ineligible. if the state a whole was Id. needs,” “disparate and whether its rent Setting stage litigation, for this Con- geographic coverage sufficiently is related gress Voting Rights extended the Act for problem targets.” to the Nw. Aus- twenty-five years in 2006. See another tin, But invoking at 2512-13. Hamer, Parks, Fannie Lou Rosa and Cor- doctrine, the constitutional avoidance id. Voting Act King Rights etta Scott Reau- interpreted the Court the stat- Act thorization Amendments jurisdiction, in- any to allow ute (“2006 109-246, 120 Pub.L. No. Stat. cluding utility bringing district suit Act”). so, it doing acted on the basis of case, bailout, avoiding thus seek 15,000 legislative pages record “over “big question,” id. need resolve statistics, length, includ[ing] findings Did its Congress 2508: exceed constitu- Department, and the Justice courts authority when it reauthorized sec- tional first-hand accounts of discrimination.” question squarely pre- Now that tion 5? (inter- Cnty., F.Supp.2d at 435 Shelby sented. omitted). nal marks quotation also amended 5 to overrule II. Supreme in Georgia Court’s decisions Shelby County 461, 479-80, filed suit the U.S. Ashcroft, 539 U.S. (2003) (which Columbia, of District Court for the District 156 L.Ed.2d 428 held retrogression seeking declaratory judgment that both a that “any assessment the 4(b) turnout, Voting Rights success; 5 of er the and electoral sections the na- facially per- a Act are unconstitutional and objections; ture and number section injunction Attorney prohibiting manent the judicial preclearance suits and section 5 enforcing Shelby General from them. actions; enforcement successful section 2 427. Cnty., F.Supp.2d at Unlike the litigation; the use of “more information Austin, Shelby utility district Northwest requests” observers; and federal election bailout, good County sought never and for racially polarized voting; and section 5’s county reason. Because the had held sev- deterrent effect. Id. at 465-66. special a law for which eral elections under 4(b), As to section the district

it preclearance failed seek and because acknowledged legislative court Attorney recently object- the had the General redistricting plan ed to annexations and a “primarily record focused on the persis by Shelby proposed city County, within tence of voting discrimination in covered County clearly ineligible was for bail- jurisdictions than compar on the —rather at 446 n. 6. out. See id. As the district ative voting levels of discrimination in Judge John D. recognized, court— Bates — jurisdictions.” covered non-covered “serious questions” constitutional Nonetheless, Id. 507. the district long- raised Northwest Austin could “no pointed court significant “several er be avoided.” Id. pieces of evidence suggesting that Addressing questions in thor- these century problem 21st of voting discrimi ough opinion, upheld the district court nation prevаlent remains more in those constitutionality challenged provi- jurisdictions that historically have been summary granted judgment sions and subject to the preclearance require the Attorney reviewing General. After including disproportionate ment”— legislative the extensive record and the number of successful section suits arguments Shelby County, made jurisdictions and the “continued Attorney General, and a group defen- prevalence voting discrimination in cov dant-intervenors, the district court con- jurisdictions ered notwithstanding cluded that “Section 5 remains a ‘con- considerable deterrent effect of Section gruent proportional remedy’ to the Thus, 5.” Id. at 506-07. although observ 21st century problem of voting discrimina- ing Congress’s reauthorization “en jurisdictions.” tion in covered Id. at 428. 4(b) sured that Section would continue to Responding Supreme to the con- Court’s jurisdictions focus on those with the Austin, cerns in Northwest the district worst historical records of discrim court found the record evidence contem- ination,” id. at the district court porary jurisdic- discrimination in covered found justified by this continued focus “plainly justify tions adequate to current evidence that discrimination re strong 5’s preventative remedial and mained jurisdic concentrated in those (internal measures,” at 492 quotation id. (explaining tions. See id. that Congress omitted), support marks Congress’s did renew the coverage formula to predictive judgment that failure to reau- sins, punish past but rather because thorize section 5 “‘would minority leave found “substantial of contempo evidence with inadequate remedy citizens of a rary voting very discrimination action,’” (quoting Section id. same that had histories of (2006)). H.R.Rep. No. at 57 This conduct”). Finally, unconstitutional evidence consisted of pages thousands emphasized district testimony, reports, and data court regarding disparities racial registration, in voter vot- had based reauthorization not on “a per- 858 III. exam-

functory a few isolated review of by covered voting discrimination ples sets Austin Northwest “ ‘approached had its but jurisdictions,” directing us to analysis, for our course ” great with care.’ Id. seriously and task First, inquiries. two em principal conduct Austin, 573 Nw. (quoting at 5 “authorizes federal phasizing that section 265). this, the Given dis- F.Supp.2d at state and sensitive areas of intrusion into Congress’s pre- that court concluded trict imposes that substantial policymaking local the continued about judgment dictive costs,” made clear federalism the Court jurisdictions in covered for section 5 need not alone ... is ade “[p]ast that success deference,” id. at due “substantial was preclear quate justification retain the (internal omitted), quotation marks at 2511. requirements.” ance S.Ct. to overturn “decline[d] and therefore South, pointed Conditions in the judg- carefully considered Congress’s out, ra improved”: “have unquestionably ment,” novo. at Our review de id. 508. registration and cial in voter Clinton, disparities 666 F.3d See McGrath (D.C.Cir.2012) (“We disappeared, the dis- review turnout have diminished grant summary trict court’s decision un “minority and candidates hold office at novo.”). judgment de course, Id. Of precedented “[i]t levels.” may that are insuf improvements be these Shelby County reiterates its appeal, On that, the federalism costs argument given ficient and conditions continue war that can imposes, provision section 5 at rant under Act.” Id. preelearance justified only contemporary evidence of imposes “the Act current 2511-12. But and “‘unremitting ingenious the kind burdens,” and we must determine whether ” Voting when the defiance’ existed “justified by are current those burdens originally passed Act was Rights needs.” Id. at 2512. Katzenbach, Br. (quoting Appellant’s Act, Second, through section 803). Insisting 86 S.Ct. 4(b)’s formula, be coverage “differentiates legislative record lacks “evidence States, despite tween the our historic tra systematic campaign discrimina enjoy equal dition that all the States sover gamesmanship by the covered tion and (internal County jurisdictions,” Shelby quotation contends marks eignty.” Id. remedy omitted). that section 5’s is unconstitutional equal sovereignty And while “ longer congruent pro it is no because ... remedies for local ev ‘does bar ” to the it seeks to cure. portional problem (omission ils,’ original) (quoting id. 8-9; City see also Boerne v. Id. Katzenbach, 383 U.S. at 86 S.Ct. Flores, 507, 520, 521 U.S. 4(b)’s 803), the Court warned that section (1997) (“There must be a 138 L.Ed.2d 624 coverage may formula to account “fail[ ] congruence proportionality between is, conditions”—that political current injury prevented to be or remedied § 5 evil that is meant address “[t]he end.”). adopted the means to that may longer ju no be concentrated addition, Shelby County argues, section preclearance.” out for singled risdictions 4(b) coverage an for contains “obsolete” concerns, explained, Id. These the Court identify the problem mula that fails to by the argument” “are underscored jurisdictions jurisdictions, and because may require uniquely problematic, are not covers “ that, if adopt race-conscious measures ‘in longer no rational both formula is ” jurisdictions, adopted by could non-covered Br. theory.’ Appellant’s 11- practice 2 of the Act or the Four violate section Katzenbach, (quoting 803). Georgia v. (citing teenth Amendment. Id. 491, at Ashcroft, 539 U.S. 123 S.Ct. 2498 would also survive Katzenbach’s “rationali- J., (“[C]onsider- (Kennedy, concurring) ty” review. that doom a redistrict- ations of race would course, Of this does not mean that the

ing the plan under Fourteenth Amend- Supreme prior Court’s decisions upholding § 2 ment or seem to be what save it under Voting Rights the Act longer are no rele 5.”)). sure, § be To such “[distinctions Quite vant. to contrary, the Katzenbach justified can be in some cases.” Id. But City and great Rome tell us a deal about of costs, 5’s given section serious federalism address,” “[t]he evil that 5 is meant to requires Northwest Austin that we ask Austin, 2512, Nw. at S.Ct. as well as 4(b)’s “disparate geo- whether section types of the are probative evidence that of coverage graphic sufficiently related to needs,” Moreover, “current City id. of problem targets.” that it Id. quite Boeme relied on heavily Katzenbach addressing Before Northwest Austin’s 5, for proposition that section origi as questions, we must ap two determine the nally extended, enacted and thrice was a of propriate standard review. As the Su congruent model of proportional and legis noted, preme Court applied standard Boerne, City lation. See at U.S. of enacted legislation pursuant to to Con 525-26, 530, 117 (relying on gress’s power Fifteenth Amendment re explain Katzenbach to how the Court eval (not at mains unsettled. See id. 2512-13 legislation uates remedial under the Four ing, declining but resolve the parties’ teenth and Amendments); Fifteenth see dispute appropriate over the standard of (describ also id. at 117 S.Ct. 2157 review). Reflecting uncertainty, this Shel ing characteristics of Voting Rights by County argues “congruence that Act, analyzed City Katzenbach and proportionality” and for Four standard Rome, it congruent that made pro of legislation applies, teenth Amendment see portional). Boerne, 520, City at U.S. 117 S.Ct. of can guidance We likewise seek from the 2157, Attorney whereas the General insists Court’s Fourteenth Amendment decisions Congress may “any that use rational applying congruent and proportional means” to enforce the Fifteenth Amend legislation. standard other In those ment, Katzenbach, 324, see at 383 U.S. cases, the Court made that clear the rec- Although Supreme S.Ct. 803. Court compiled by Congress ord must contain declined to resolve this issue Northwest evidence of transgressing state “conduct Austin, questions the Court raised— the Fourteenth Amendment’s substantive justified whether section 5’s burdens are provisions,” Coleman v. Appeals by current needs and whether its disparate —Md., -, 1327, geographic reach is sufficiently related to of (2012), 182 L.Ed.2d 296 and that problem very ques us the —seem invasions state interests tions one would ask to based “ab- determine whether stract generalities,” “suppo- 5 is id. “congruen[t] proportion- section conjecture,” sition and injury prevented,” id. cannot City ] [to] alt Boerne, be sustained. Once satisfied Con- S.Ct. 2157. gress a pattern thus read has identified We Northwest Austin as send constitu- violations, however, tional ing powerful signal congruence Court has is the proportionality appropriate Congress’s judgment, deferred standard even event, any if sparse legislative review. sur the face a rather rec- the arguably rigorous Department vives more “con ord. In Nevada Human standard, Hibbs, gruent proportional” example, Resources v. the Court finding unconstitutional state action constitutionality family- the sions the of upheld issue, 544, Family Medical at precise type of the of the at see id. provision care Act, eligible employees C.J., allows (Rehnquist, Leave which 124 1978 dissent S.Ct. leave, unpaid of up twelve weeks contrast, to take to has By the Court found ing). to right of action private “creates a Fourteenth Congress that exceeded its money relief and dam- equitable both seek authority legisla Amendment where the employer (including against any ages “virtually complete record revealed a tive 724, 721, 123 U.S. public agency).” 538 evidence of unconstitutional absence” of (inter- (2003) 953 1972, L.Ed.2d 155 S.Ct. 521, Id. 124 S.Ct. 1978 state conduct. at omitted). Although marks quotation nal (majority opinion) (citing Prepaid Fla. discriminatory policies leave evidence of Postsecondary Expense v. Educ. Bd. Coll. hardly was exten- governments by state Bank, 627, 647-48, 119 527 U.S. S.Ct. Sav. Lane, 509, sive, v. 541 U.S. see Tennessee 2199, (1999)); 144 see L.Ed.2d 575 also 1978, 17, 124 S.Ct. 158 & n. 528-29 530, 521 at 117 City of Boerne, U.S. S.Ct. (2004) the limited (describing 820 L.Ed.2d (legislative examples 2157 record “lack[ed] Hibbs, upon in “little of relied evidence targeted of modern con instances” which concerned unconstitutional state violations); Kimel v. Fla. Bd. stitutional of conduct”), to Court deferred Con- the 62, 89, 120 631, 145 Regents, 528 U.S. S.Ct. conсlu[sions],” Hibbs, gress’s “reasonable] (2000) (“Congress L.Ed.2d 522 never iden 1972, 734, S.Ct. and held U.S. at any pattern age tified of discrimination “weighty enough to that the evidence was States, any much the less discrimination 735, id. at justify” prophylactic legislation, whatsoever that rose to level consti Similarly, in Lane the 1972. 123 S.Ct. violation.”). tutional Congress had whether Court considered authority Amend- under the Fourteenth case with We read this law two pass to Title II of Americans ment First, important qualifications. we deal Act, pub- prohibits with Disabilities which in voting, with racial here discrimination entities, states, discrimi- including lic from that Congress one of the can gravest evils nating disability on the their basis Hopkins, to Yick seek redress. See Wo services, programs, activities. 541 370, 356, 1064, 30 L.Ed. 118 U.S. 6 S.Ct. Looking 1978. into U.S. S.Ct. (1886) (“[The regarded to right is vote] long history noting the record and political right, as a fundamental because against state discrimination disabled indi- preservative rights.”); of all Adarand Con viduals, to the Court found “not difficult structors, Pena, Inc. v. perceive Title II designed the harm that 2097, 132 L.Ed.2d 158 524-25, 124 address.” See S.Ct. to id. (“racial constitutionally classifications [are] held, It again great with deference subject rigid suspect and to most scru evidence, Congress’s take on the to (citation omitted) (internal quotation tiny” record, judicial “including findings omitted)). Congress marks When seeks action, unconstitutional state and statisti- in voting— combat racial discrimination cal, legislative, and anecdotal evidence of free protecting right from both widespread persons exclusion of with race the right discrimination based on enjoyment public disabilities from the in voting, free from discrimination to be services,” beyond peradven- made “clear subject heightened rights scruti two pro- that Title II was appropriate ture” ny apex power. at the its acts 529, 124 phylactic legislation, id. at S.Ct. —it Hibbs, 538 U.S. at 123 S.Ct. 1972 despite 1978—and this fact that it is reported (noting two deci- “easier record included pattern sweeps broadly, show a of unconstitutional viola- preclearance requiring rights subject tions” when it enforces every voting change no matter how minor. Lane, ‍‌‌‌​​‌​​‌‌‌‌‌‌‌​‌​​‌‌​‌​‌‌​​‌​‌‌​​​​​​​​​​​​​‌‌‌‍heightened scrutiny); places Section also the burden on cov- J., (Scalia, dissent- ered to demonstrate to the ing) (“Giving [Congress’s enforcement Attorney General or a three-judge district powers] expansive scope regard more with court here in Washington pro- against to measures directed racial dis- posed law not discriminatory. is Given prac- crimination the States accords to burdens, significant these in order to de- distinctively tices that are violative of the termine whether section 5 remains con- principal purpose of the [Reconstruction gruent proportional and are obligated we of priority attention Amendments] that to undertake a of review the record more Supreme] [the envisioned from the searching than Supreme Court’s re- beginning, repeatedly and that has been view in Hibbs Lane. in opinions.”). reflected Ex- [the Court’s] pressly prohibited by the Fifteenth Although our examination of Amendment, racial in voting discrimination the record will be probing, we remain in uniquely is harmful several ways: it bound by fundamental principles judicial of money damages cannot be remedied Time restraint. and time again the Su and, found, enjoin Congress lawsuits to prеme emphasized Court has that Con discriminatory voting costly, laws are take gress’s laws are entitled a “presumption to resolve, years to and leave those elected validity.” Boerne, of City 521 U.S. at under the challenged law with the benefit 535, 117 S.Ct. 2157. As the Court has incumbency. explained, Congress when pursuant acts Second, although the federalism its enforcement authority under the Re imposed by costs the statutes in issue Amendments, construction judgments its (abrogating Hibbs and Lane im sovereign legislation about “what is needed ... are munity to allow against suits for states (internal entitled to much deference.” Id. money substantial, are damages) no doubt omitted). quotation marks ap Even when imposed by the federalism costs section 5 plying scrutiny, intermediate the Court a great significant. are deal more To be Congress has accorded deference “out of sure, in most the preclearance pro cases respect authority for its to exercise the ],” cess is “routine” and result “efficient legislative power,” recognition and in that in ing prompt approval by the Attorney Congress “is far equipped better than the General and if rarely delaying ever elec judiciary to amass and evaluate the vast Reauthorizing tions. Voting upon amounts data bearing legislative Rights Temporary Act’s Provisions: Poli questions.” Turner Sys., Broad. Inc. v. cy Perspectives and Views the Field: from FCC, 180, 195, 196, 520 U.S. 117 S.Ct. Hearing the Subcomm. on the Con Before (1997) 1174, 137 (internal L.Ed.2d quo stitution, Rights Civil Property omitted) tation marks (rejecting a First Comm, Rights the S. Judiciary, on the Amendment challenge “must-carry” to the Cong. (testimony 109th 312-13 provisions the Cable Television Consum M. Wright, Donald North Carolina State Act). er Competition Protection and And Elections) (stating pre Board of that most critically purposes, although our North only clearance “take submissions a few questions west Austin raises serious about prepare” minutes and that the Justice constitutionality, nothing section 5’s in that Department cooperates with our “preclearance opinion duty to ensure that alters to resolve those issue[s] d[o] election”). delay an questions using But section principles traditional since 1965. in the decades Indeed, reit- to 3700 the Court review. deferential 109-478, at the constitu- “judging H.R.Rep. No. erated not Congress is ‘the Act of of an tionality this progress found that But duty [a most delicate gravest ” story. It document- not tell whole did Aus- Nw. perform,’ called on court] and turnout registration ed “continued Blodgett v. tin, (quoting at 2513 South disparities” Virginia both 142, 147-48, 48 Holden, Virginia, particu- Id. at 25. Carolina. (1927) (Holmes, J., concur- 72 L.Ed. outlier,” lar, S.Rep. an No. “remain[ed] Fifteenth “[t]he also ring)), but (2006): although per- 71.6 not the ‘Congress,’ empowers Amendment white, age non-Hispanic voting first instance cent of Court, determine it,” 2004, only to enforce registered is needed vote legislation residents what percent voting age id. of black residents 57.4 14.2-point difference. U.S. registered, A. Bureau, and Reported Voting Census be we by principles, these Guided Pop- Registration Voting-Age of the Total first question: Austin’s gin with Northwest ulation, tbl.4a, at http://www. at available imposed by sec burdens Are the current census.gov/hhes/www/socdemo/voting/ by current needs”? “justified tion 5 (last vis- publications/p20/2004/tables.html Supreme Court raised The S.Ct. at 2512. 2012). Also, May although ited because, it emphasized as question this holding Amеricans number African County Shelby argues, the condi and as significantly, elected office had increased passage of the Vot tions led to which they to face barriers to election continued im ing Rights unquestionably Act “have Congress found positions. for statewide ... in proved!,] significant no doubt due yet that one African American had Rights Act Id. part Voting to the itself.” to office in Missis- been elected statewide recognized this at also Louisiana, In or South Carolina. sippi, Act, it reauthorized the progress when “ states, ‘often other covered “many generation of the first finding that appointed to after blacks have been first minority registration and barriers to voter vacancy they that are able to win state- in place prior voter turnout that were ” H.R.Rep. No. wide office incumbents.’ [Voting have been elimi Rights Act] 109-478, on (quoting at 33 Nat’l Comm’n 109-478, at 12. H.R.Rep. nated.” No. Act, Rights Protecting Minori- Voting nicely display charts this dissent’s Rights Act at disparities regis ty Voting in Voters: The progress. Racial voter (“Nat’l (2006) 1982-2005, and turnout have “narrowed con at tration Work jurisdictions in and are siderably” covered Report”)). Comm’n na largely comparable disparities now types other of evi- Congress considered 12-17; tionwide. Id. at see also Dissent that, in that judgment, dence its “show[ed] figs.I II. ing Op. at 890-91 & Increased persist attempts discriminate turn, minority has in voting, “resulted evolve, 5 is still needed such Section Afri significant increases the number of protect minority voters in future.” serving in elected offices.” can-Americans specific at 21. It accounts of Id. heard 18; 109-478, also H.R.Rep. No. see voting. instances of racial discrimination Op. example, Dissenting fig.III. For by analysis opinions experts It heard by fully the 1965 the six states covered considered, It all of the issue. Act, sides of African the number Americans categories among things, other six distinct serving in elected office increased from (1) objec- Attorney preclearance evidence: General makes such virtually tactics tions to block proposed voting issued impossible? Equally important, Shelby would, in changes Attorney Gen- County’s argument rests on a misreading judgment, purpose eral’s have the or effect of Katzenbach. Although the Court did (2) discriminating against minorities; describe the situation in 1965 as one of requests” “more information issued when “unremitting and ingenious defiance of the Attorney General in- believes that the Constitution,” Katzenbach, 383 U.S. at jurisdic- formation submitted a covered 86 S.Ct. nothing in sug Katzenbach tion is insufficient to a preclearance allow gests that such gamesmanship was neces (3) determination; successful lawsuits sary to the judgment Court’s that section 5 (4) brought Act; under section 2 of the Rather, was constitutional. the critical dispatched federal observers to monitor “Congress factor was had found that Act; (5) elections under section 8 of the ease-by-case litigation inadequate was successful section 5 enforcement actions combat widespread persistent discrim against filed for fail- ination in voting.” 803; Id. ing to submit voting changes preclear- (ex see also id. at 86 S.Ct. 803 ance, requests as well as for preclearance plaining why laws facilitating case-by-case denied the United States District Court ineffective”). litigation “proved had Columbia; for the District evi- Rome, Court, City whilе recognizing of dence that the mere existence of section 5 progress that “undeniable” made, had been deters officials from proposing even dis- sustained section 5’s constitutionality with criminatory voting changes. Finally, Con- out ever mentioning gamesmanship any of gress case-by-case heard evidence that kind, 181-82, 100 1548; 446 U.S. at S.Ct. section 2 litigation inadequate was to rem- relied instead on disparities regis racial edy the racial discrimination in voting that tration, the low minority number of elected persisted in jurisdictions. officials, and the number and of nature delving legislative Before into the record Attorney objections, General id. at ourselves, we consider two arguments 100 S.Ct. Reinforcing interpre this by Shelby that, raised County if meritori- Rome, tation of Katzenbach and City of ous, significantly would affect how we eval- Supreme explained City of uate that record. Boeme that [Voting Rights “[t]he Act’s] First, Shelby County argues new, unprecedented remedies were section can 5 be sustained on the necessary deemed given the ineffective of basis current evidence of “a widespread of existing rights laws, ness voting and pattern of electoral gamesmanship show slow, costly of case-by-case character systematic ing to resistance the Fifteenth litigation,” 526, 521 U.S. at 117 S.Ct. 2157 Amendment.” Appellant’s Br. 23. Ac (citation omitted). The Court reiterated cording County, to the the preclearance point in Board Trustees the Uni of of remedy may qualify congruent pro versity Garrett, Alabama v. 531 U.S. of portional only “when it addresses a coordi 356, 373, 955, 121 S.Ct. 148 L.Ed.2d 866 nated campaign of discrimination intended (2001): “In [enacting the Voting Rights] to circumvent the remedial effects of direct ... Congress Act also determined that enforcement of Fifteenth Amendment vot ” litigation had proved ineffective.... ing rights.” Id. at 7. disagree. We For thing, one how could we emphasis demand evidence This the inade of gamesmanship present quacy case-by-case of the sort of litigation at the makes time of given Katzenbach that section 5 if 2 litigation adequate sense: section is

864 to minimize or cancel out “invidiously ed and extent magnitude deal with to mi juris- racial or ethnic voting potential in covered violations constitutional dictions, might Bolden, have no Congress 446 then Mobile City norities.” pre- requiring states justification 1490, 55, 66, L.Ed.2d 100 S.Ct. U.S. changes. Put another voting clear their also, Reno, (1980); e.g., Shaw v. see to make section 5 is needed way, what 2816, 125 L.Ed.2d pattern is a congruent proportional (1993). Although previous the Court’s voting so seri- racial discrimination focused on upholding section 5 decisions case-by-case liti- widespread that ous power to the Fifteenth Congress’s enforce this, inadequate. Given gation is Amendment, “congruent pro the same leg- not whether the us is question before standard, inqui refined portional” “inge- the kind of reflects islative record Austin, appears forth in ries set Northwest prior existed defiance” that nious of whether Section apply “irrespective has documented Congress but whether en is [Fifteenth Amendment] considered persistent ra- widespread and sufficiently Amend legislation, [Fourteenth forcement ju- in covered discrimination cial legislation, enforcement or kind ment] justify conclusion that its risdictions pursuant to hybrid legislation еnacted both inadequate. litigation remains Shelby Cnty., amendments.” has, fed- If it then section 5’s “substantial (footnote omitted); at 462 see F.Supp.2d justified because eralism costs” remain Boerne, City also remedy is still needed preclearance Congress’s (suggesting the Fifteenth continuing violations “power provisions to enforce the Amendment. “parallel” to its Fifteenth Amendment” Second, Shelby County urges tous dis- Amend power to enforce the Fourteenth regard much of the evidence ment). Indeed, reauthorizing when it “vote dilu- considered because involves 2006, Congress expressly Act in invoked tion, weight of the vote once going authority under both the its enforcement cast, Appellant’s not access to the ballot.” Amendments. Fourteenth and Fifteenth County faults Specifically, Br. 26. (“[T]he at 90 H.R.Rep. See No. annex- Congress relying for on selective leg the authority Committee finds for this ations, redistricting techniques, at- certain XIV, § 5 amend. and islation under elections, large practices and other that do XV, 2.”); § at 53 n. 100 amend. id. & in- prevent voting from but not minorities minority voting strength,” (stating Congress acting 1490 stead “dilute 2(b)(4)(A). According to the 2006 Act its Fifteenth under Fourteenth and County, Supreme Court has because powers reauthorizing Amendment dilution violates the “never held vote Act). Rights Accordingly, like Voting Amendment,” II, Fifteenth Bossier court, think it and the district we Congress 866, may n. 120 S.Ct. we U.S. of uncon appropriate to consider evidence rely on section 5 such evidence sustain sec evaluating stitutional vote dilution Congress’s of Fifteenth as valid exercise Rome, validity. City tion 5’s power. Amendment enforcement (citing U.S. at Con gress’s finding registration that “[a]s

It is true that neither the Su ], minority oth voting of citizens increasef nor this court has ever held preme Court may resorted to which er measures dilution violates the that intentional vote minority voting increasing would dilute the Fourteenth Fifteenth Amendment. But of the continued strength” evidence prohibits vote dilution intend- as Amendment (internal quotation reasonably need conclude that racial discrimina- omitted)). marks tion in is so pervasive serious and that section litiga- is espe- Consideration of this evidence tion an remedy? remains inadequate Re- cially important given that so-called “sec- viewing the record focusing ourselves and generation” ond like tactics intentional on the evidence most probative of ongoing vote dilution are in fact forms decades-old violations, constitutional we believe does. is, gamesmanship. That “as African progress abolishing Americans made begin with, To the record contains nu some of the devices whites had used to “examples merous of modern instances” of prevent voting,” them from both in the late racial discrimination in voting, City of century again nineteenth in the 1950s Boerne, 117 S.Ct. 2157. “[ojfficials 1960s, responded by adopt- Just a few recent examples: ing impact new measures minimize the (cid:127) Kilmichael, Mississippi’s abrupt 2001 of black Voting reenfranchisement.” decision cancel an election “an when Rights Act: Evidence Continued Need: unprecedented number” of African Hearing the Subcomm. on the Con- Before office, Americans ran for H.R.Rep. No. Comm, stitution the H. on the Judicia- (internal 109^178, at 36-37 quotation (2006) (“Evidence ry, Cong. 109th 141-43 omitted); marks ”). Continued Need These measures— (сid:127) County, Webster Georgia’s pro- “ ” “well-known” tactics such ‘packing]’ posal to reduce the black population in district, single minorities into a spreading three of the education board’s five sin- minority thinly voters among several dis- gle-member districts after the school tricts, annexing predominately white sub- district a majority elected black school urbs, and so prevalent on—were “forms of time, board for the first Voting Rights then, vote dilution” deter- Act: Section 5 History, Act— persist mined that these today. Specif- Id. Scope, and Purpose: Hearing Before ically, Congress found that while “first Subcomm. on the Constitution generation flagrant attempts to barriers” — Comm., Judiciary House Cong. 109th deny polls perva- access to the that were 830-31 (“History, Scope, and sive at the time of Katzenbach —have di- ”); Purpose minished, generation “second barriers” (cid:127) Mississippi’s attempt 1995 to evade such as vote dilution have been “construct- preclearance and a regis- revive dual to prevent minority ed fully voters from system tration “initially enacted participating process.” electoral 1892 to 2(b)(2) disenfranchise Black voters” 2006 Act (congressional findings). previously and by struck a down feder- Although may such methods be “more sub- court, 109-478, H.R.Rep. 39; al No. 1965,” tle than the visible methods used (cid:127) Congress concluded that their and “effect Washington Parish, Louisiana’s 1993 same, namely diminishing results are a attempt to reduce the impact of a ma- minority community’s ability fully to jority-African by American district participate in the process electoral and to “immediately creating] a new at-large preferred elect their candidates of choice.” to seat ensure that no white incumbent 109^178, H.R.Rep. No. at 6. seat,” 38; would lose his id. at (cid:127) issues, Having County, Waller attempt resolved these threshold Texas’s 2004 we return to the question: early voting places basic Does the reduce at polling legislative record proba- historically contain sufficient near a university black and tive from evidence which could prosecute its threats to students

866 twenty-two years during objections stu- voting,” after two black

“illegal (an each average of 28.5 intent to run for from to 2004 their announced dents during interposed Need to 490 office, year), compared Continued Evidence of (an from 1965 to 1982 years 185-86. the seventeen year). each Evidence of 28.8 average ex- also contains record legislative The 172; No. S.Rep. see also Need Continued voting hostility to black amples of overt 109-295, objections (finding at 13-14 the electoral by who control power those 2006). half the first between instance, Mississippi, for state In process. early redis- an 1990s legislators opposed way objections were not Formal have increased the that would tricting plan potentially Attorney blocked General districts, refer- majority of black number 5. discriminatory changes under section as “black publicly ring plan to the that between 1990 Congress found “nigger plan,” privately plan” and (MIRs) requests” “more information Rights Voting Modem Enforcement of with- prompted covered Comm, Hearing the S. on the Act: Before voting modify proposed draw or over 800 (2006) (“Modem Cong. 22 Judiciary, 109th Need changes. Continued Evidence of ”) (internal quotation marks Enforcеment 2553, 2565; 109-478, at 40- H.R.Rep. No. 109-295, omitted); No. S.Rep. see also on Although position no MIRs take Reappor- Georgia, 14. In the state House request, of a Con- preclearance the merits “told Committee his tionment Chairman indicating that the At- gress had evidence occasions, T don’t colleagues numerous uses them to torney General sometimes ” districts,’ H.R.Rep. nigger want to draw jurisdiction signals submitting “send 109-478, (quoting No. at 67 Busbee their proposed about the assessment of (D.D.C.1982)). Smith, F.Supp. change” compli- voting “promot[e] pointed to court numerous district jurisdictions.” ance Evidence by covered of intentional discrimi- examples additional Congress found Need 2541. Continued legislative in the record. See Shel- nation ju- taken that because actions “[t]he 477-79, 472-76, F.Supp.2d at Cnty., 811 are response to an [in MIR] risdiction 485-87; 480-81, 481-85, also Nw. Aus- see motives,” high illustrative of [its] often tin, 258-62, 289-301. F.Supp.2d modifications number withdrawals and flagrant examples these addition to response to constitutes ad- made in MIRs discrimination, categories several racial ditional evidence of discrimi- “[e]fforts Congress’s support evidence in the record H.R.Rep. past years.” nate over racial discrimi- conclusion that intentional No. at 40-41. so nation remains serious and Shelby County contends jurisdictions that widespread in covered MIRs, objections however section 5 preclearance is still needed. We numerous, signal vot explore each in turn. not intentional “do[ ] they represent ing discrimination” because First, Congress hundreds of documented opinion and only Attorney the General’s General, Attorney instances the which discriminatory on in need not be based 5, objected to section acting pursuant 30-31; Br. see also id. Appellant’s tent. proposed voting changes he found a fun Underlying argument at 32. this is discriminatory purpose or would have a agree: with which principle damental we Significantly, Congress found that effect. 5, the record must con to sustain section objections the number of has not absolute pattern of tain “evidence of constitution declined reauthorization: since 1982 729, violations,” Hibbs, Attorney interposed at least al 538 U.S. General 1972, voting changes violate Shelby County S.Ct. points also out that the by constitution if motivated discrimi- percentage proposed of voting changes animus, natory Reno v. Bossier Parish by blocked Attorney objections General Bd., 471, 481, 1491, Sch. 520 U.S. steadily has declined—from a height of (1997) I”). L.Ed.2d Al- {“Bossier (1968-1972) percent 4.06 percent 0.44 though objections not all rest on an affir- (1978-1982) (1993-1997) percent to 0.17 finding mative of intentional discrimina- (1998-2002). percent and to 0.05 In- An tion, examples the record contains of troduction the Expiring Provisions of Austin, many that do. See Nw. Voting Rights Act Legal Issues F.Supp.2d (appendix providing 289-301 Relating to Reauthorization: Be- Hearing examples objections on based discrimi- Comm, the S. on the Judiciary, 109th fore intent). natory Between 1980 and (2006) (“Introduction Cong. 219 to the Ex- the Attorney General issued at least 423 Provisions”). piring But the most dramat- objections based in or in part whole on objection ic decline in the which, as rate — discriminatory Voting Rights intent. Act: observed, the district court always “has Section 5—Preclearance Standards: low,” Shelby been Cnty., F.Supp.2d Hearing on Subcomm. the Con- Before 1970s, 470—occurred in the before the Su- Comm, H. stitution on the Judicia- preme upheld the Act for a third ry, Cong. 109th 180-81 {“Preclear- in City time Rome. See Introduction to ”). Moreover, ance Standards in the Expiring Also, Provisions 219. 1990s, Supreme before the Court limited average objections number of per year has Attorney object ability General’s declined, suggesting that the level of on discriminatory based but non-retro- discrimination has remained constant as II, intent, gressive see Bossier the number of proposed voting changes, 320, 120 (limiting scope S.Ct. 866 many minor, likely quite has increased. section 5’s in a purpose prong decision H.R.Rep. See No. at 22 (showing Act), purpose overturned the 2006 “the increase in the annual number of voting prong of Section 5 had domi- become the changes submitted preclearance, for from legal nant objections,” basis for Preclear- 300-400 per year early in the 1970s to ance Standards seventy-four with per year 4000-5000 in the 1990s and objections percent based whole 2000s). out, As the district pointed court part intent, discriminatory id. at 136. may “many there plausible explanations Although objections repre- is true that objection for the recent decline rates.” “only sent one opinion,” Appellant’s side’s Shelby Cnty., F.Supp.2d at 471. Br. rely upon entitled years Even in the six from 2000 to the Attorney judg- General’s considered objection dropped after rates had to their ment it prescribes “when civil remedies lowest, objections Attorney General affect- ... under 2 of the Fifteenth [section] 660,000 ed some minority voters. The Katzenbach, Amendment.” 383 U.S. at Continuing Need Section 5 Pre-Clear- 330, 86 S.Ct. 803 (explaining that “Con- Comm, Hearing ance: the S. on the gress obviously may avail itself informa- Before (2006) (“Con- Judiciary, Cong. 109th any probative source,” tion from including Need”). tinuing Ultimately, Congress Depart- evidence be- “adduced the Justice ment”). fact, lieved that the absolute number of objec- in City Rome the Su- represented tions preme objections the better indicator of considered to be probative of the extent of in ju- evidence unconstitutional vot- discrimination ing 181, discrimination. See 446 judgment U.S. at risdictions. This to —whether 100 S.Ct. greater 1548. weight accord to absolute numbers

868 2005, minority plaintiffs obtained the kind 1982 precisely objection rates —is or to 2 in section some 653 equipped” favorable outcomes is “far better legislature that a Broad., evaluate, jurisdictions, provid filed in covered Turner suits than a court to (internal prac 195, discriminatory voting from ing 1174 relief at 117 S.Ct. 520 U.S. omitted). in at least 825 counties. Evidence tices quotation marks of Shelby County 251. Need Continued MIRs, Shelby agree we with As for relying for on evi the district court faults of they probative less County that are 2 litigation section successful dence An objections. than MIR discrimination ‘a 2 does though violation Section “even a on the mer- represent judgment does not require showing a of unconstitutional its, submitting might ” Br. 34 discriminatory Appellant’s intent.’ many modifying for with- have reasons at Shelby Cnty., F.Supp.2d 811 (quoting response to drawing change a proposed 481). County’s premise correct: contains evidence one. But the record although prohibits the Constitution “reasonably] Congress could from which by discrimina voting those laws motivated (internal ],” quotation marks id. infer[ intent, 2 all tory prohibits section omitted), at least withdrawals or that some “ totаlity of on the laws which ‘based juris- submitting reflect the modifications circumstances, it that the political is shown acknowledgement pro- that diction’s leading or election processes to nomination change discriminatory. See Ev- posed was political are not (stating in the State or subdivision 178 that idence Continued Need participation by a members jurisdiction’s pro- equally open to withdraw a decision ” v. changes [protected] to an MIR “is a class.’ Bartlett Strick posed response 1231, 173 land, 1, 10-11, a of one or more frequently tacit admission (2009) at proposed discriminatory changes”); id. 42 (quoting L.Ed.2d 173 U.S.C. (explaining Attorney 1973(b)). that after the however, 809-10 “re practice, this requested information General more on cases, test,” 2 section applied sults redistricting containing only two ma- plan very of factors simi requires consideration districts, jurisdiction jority-black with- discriminato lar to those used to establish ultimately adopted the proposal drew intent on circumstantial evidence. ry based majority- redistricting plan with three 36-37, 106 Compare Gingles, 478 U.S. districts); 109-478, H.R.Rep. black No. (listing factors considered under S.Ct. Monterey County’s 41 (explaining pro- test), Rogers Lodge, v. the results with posal polling number of reduce the places preclearance only after the received virtually (relying on L.Ed.2d 1012 County polling place withdrew five consoli- in finding factors to affirm a identical MIR). an response dations Given discrimination). Also, as the dis tentional this, Congress reasonably concluded out, court “courts will avoid pointed trict 800-plus some of the withdrawals and if, deciding questions” as is constitutional MIRs “re- response modifications in virtually the case in all successful section over the “[e]fforts discriminate ]” flect! actions, litigation can resolved on 109-478, at past years.” H.R.Rep. No. grounds. Shelby Cnty., narrower 482; also, e.g., White F.Supp.2d see (11th Alabama, n. 42 74 F.3d category

The second evi Cir.1996) (“Because dis dispose we by Congress, dence relied successful judgment ground on the pattern trict court’s litigation, reinforces the Act, Voting Rights we need objections it violates the of discrimination revealed indeed, not, not, should discuss wheth- and MIRs. The shows that between record 180-82; Equal violates Protec- judgment er the tinued Need see also 42 U.S.C. Clause.”). 1973f(a)(2) explains why leg- § tion This (authorizing dispatch of fed- published islative record contains so few eral jurisdictions observers to covered judicial findings section cases with of upon based either “written meritorious intent, discriminatory Dissenting Op. see residents, complaints from elected offi- 26; Impact To Examine the cials, civic participation organizations,” Effec- or Rights Act: Voting Hearing tiveness or Attorney General’s judgment that the Subcomm. the Constitution Before necessary observers are to enforce the Comm, H. on the 109th Judiciary, Amendment). Fourteenth or Fifteenth Of (2005) Cong. (“Impact 986-87 and Effec- these, sixty-six percent were concentrated ”) al.)— (report by Katz tiveness Ellen et in five of the six originally states courts no discriminatory have need find Alabama, section Georgia, Louisi- 5— they discriminatory intent once find effect. ana, Mississippi, South Carolina. is so But not limited. Consider- 109-478, H.R.Rep. No. at 44. In some ing required prevail evidence instances, monitoring by federal observers accounting section case and for the obli- “bec[ame] the of Department foundation gation of III Article courts to avoid reach- efforts,” of Justice enforcement as in Co- ing questions constitutional unless neces- Alabama, necuh County, and Johnson sary, we think Congress quite reasonably County, Georgia, reports by where federal that concluded successful section 2 suits observers enabled the government federal provide powerful evidence of unconstitu- suit bring against county officials for addition, tional discrimination. as with discriminatory locations, conduct polling Attorney objections, ig- General we cannot ultimately resulting in consent decrees. nore the sheer number of successful sec- Id.; Voting see also Rights Act: Sections years, tion cases—653 over 23 averaging 6 and 8—The Federal Examiner and Ob- than year. high more 28 each This volume Program: Hearing server the Sub- Before of successful section 2 particular- actions is comm. on the Constitution the H. ly given Attorney dramatic that General Comm, on the Judiciary, Cong. 109th 42- objections discriminatory block laws before (“Sections ”). 6 and 8 As Con- can they implemented be that it, gress saw this continued need for fed- jurisdictions attempt- deters from even eral observers in covered laws, ing to such thereby reducing enact indicative discrimination and “demon- need litigation for section 2 in covered discriminatory strates that the conduct ex- jurisdictions. Continuing Need perienced by minority solely voters is not that (explaining section 5 “makes cov- limited tactics to dilute the jurisdiction[s] ered much ‘cleaner’ than strength of minorities but continues to in- they have would been without Section 5 disenfranchise, clude tactics to such as coverage”). polling harassment and intimidation inside Third, Congress relied on evidence of 109-478, H.R.Rep. locations.” No. at 44. “the tens of thousands Federal observ- Shelby County Attorney insists dispatched been ers have to observe General’s decision to dispatch federal ob- jurisdictions.” elections in covered servers “indicates ... there 2(b)(5). §Act Specifically, to 600 ob- might be conduct with the effect disen- dispatched annually servers were between citizens, franchising minority might which H.R.Rep. 1984 and No. might amounting purposeful discrimina- separate dispatches to 622 (most observers) Appellant’s or all tion.” Br. As the involving multiple 35-36. dis- jurisdictions, however, to covered Con- explained, Evidence trict court “observers 870 that successful sec- Shelby County believes particular polling a assigned to not

are they are “not reli- tion enforcement actions speculation; 5 based sheer location voting if is reason- intentional discrim- only dispatched ‘there able of are evidence minority are at citizens a section belief that most that “[t]he able ination” because ” Shelby being disenfranchised.’ of ... risk action can 5 enforcement establish (quoting F.Supp.2d at Cnty., voting change quite possibly that a —and 44). Indeed, 109-478, at H.R.Rep. No. not nondiscriminatory voting change—was pre-elec- Department conducts the Justice Ap- preclearance.” for properly submitted identify ju- in to investigations order tion record legislative Br. 34. But the pellant’s are federal observers where risdictions that at least some of contain evidence does necessary. Sections likely to See be enforcement the 105 successful that the Jus- (explaining at and 37-39 to at- response initiated in suits were pre-election conducts Department tice jurisdictions tempts by imple- identify investigations to surveys field and discriminatory laws purposefully ment will jurisdictions where federal observers Shelby oversight. without federal See needed). fed- record shows that (describing Cnty., F.Supp.2d at in fact witnessed discrimi- eral observers against Mississippi actions section 5 in the form polls, sometimes nation Texas, “in which the un- County, Waller intimidation, harassment, of intentional voting changes appeared precleared minority voters. treatment of disparate discriminatory by motivated an- have been (describing id. discriminato- at 30-31 imus”); Need 176 Evidence Continued of minori- ry treatment and harassment (explaining that after a section 5 enforce- Alabama); in id. at poll ties officials Mississippi submit its ment suit forced (describing discriminatory treatment registration preclearance, law for dual Arizona); minority voters Texas Attorney objected based on the General of Afri- (describing at 43 exclusion id. racially discriminatory purpose and law’s poll as work- Americans from service can effect). Therefore, Congress could reason- Thus, County, Georgia). in Johnson ers cases, ably have concluded that such even although ob- deployment federal number, provide if few in at least some hardly servers is conclusive evidence willingness to evidence of continued evade discrimination, think unconstitutional we protections, the Fifteenth Amendment’s rely Congress reasonably upon could they for reveal continued efforts recal- modest, of current additional evidence to enact dis- citrant needs. criminatory voting but to do changes, so Fourth, Congress of con- found evidence re- preclearance defiance of section 5’s types pre- tinued discrimination two quirement. Examining clearance-related lawsuits. In addition to section 5 enforcement brought first of these—actions to enforce suits, of contin- Congress found evidence preclearance requirement— section 5’s ued “the number re- discrimination “many noted that defiant cov- declaratory quests judgments pre- [for jurisdictions and and local offi- ered State by the United States denied clearance] changes continue enact and enforce cials Colum- District Court for the District of without Federal procedures 2(b)(4)(B). 2006 Act The number bia.” knowledge.” H.R.Rep. No. Government’s judicial preclearance ac- of unsuccessful Between 1982 roughly tions to have remained appears least 105 successful section 5 enforcement requests twenty-five constant since 1966: jurisdic- brought against actions such were were or withdrawn between Need 250. denied tions. Evidence Continued 2004, compared obtaining to seventeen between about preclearance prevented 1966 and 1982. Evidence Continued Fredericksburg, Virginia, eliminating from of 177-78, Shelby County 275. does Need district). an majority African American of not the relevance this evidence. contest words, other Congress had “some reason to believe that without [section Finally, 5’s] deter- bolstering and its conclusiоn necessary, Congress potential misconduct,” that 5 remains rent effect on the that the existence of Section 5 “f[ound] evidence of continued in discrimination jurisdictions covered deterred from even covered “might be consider- to enact attempting discriminatory voting ably S.Rep. worse.” No. at 11. changes.” H.R.Rep. 109-478, at No. Shelby County argues that Con view, In Congress’s strong “Section 5’s gress’s finding of deterrence reflects deterrent effect” and of “the number vot- “ ‘outdated assumptions about atti racial changes ing gone that have never forward ” jurisdictions’ tudes in the covered as impor- a result are [that effect]” “[a]s we “indulge[].” not should Appellant’s tant the of objections as number that have (quoting Austin, Br. 38 interposed protect been Nw. minority voters S.Ct. at against discriminatory (Thomas, J., changes” that had concurring judgment actually proposed. been Id. As part dissenting and in part)). agree We “ explained, ju- officials ‘[o]nee that evaluating section 5’s deterrent effect logic risdictions become aware of the raises sensitive and difficult issues. As they preclearance, tend to understand that out, rightly dissent points the claimed submitting discriminatory changes is a effect is hard to measure empirically and money waste of taxpayer time and and even judicially. harder to consider Dis timetables, interferes with their own be- senting Op. at 898. We agree also with are good objec- cause the chances that an the dissent that section 5 could not stand ” tion will result.’ Id. Nat’l (quoting alone, based on claims of deterrence nor 57). reason, Report Comm’n For this could deterrence be used in hypo some “ mere existence of ‘encourage[s] section 5 justify thetical case to renewal “to the legislature any to ensure that voting doom,” crack of id. But difficulty changes would not discriminatory have a quantifying the statute’s deterrent effect is voters, effect on minority and that it would summarily no reason to reject Congress’s not preclearance become embroiled in the finding evidence of racial discrimi ” process.’ Id. (quoting Laughlin Mc- nation in would look worse without Donald, The for Extending Case finding section 5—a from flows record Amending Voting Rights Voting Act: unchallenged by evidence the dissent. As Rights Litigation, 1982-2006: A Report above, explained Congress’s deterrent ef Voting Project Rights the American finding fect rests on evidence of current (2006)). Congress Civil Liberties Union widespread voting discrimination, testimony considered that section 5 has indicating well as on testimony that section just had this effect state and local redis- prompts 5’s mere existence state and local processes. tricting H.R.Rep. No. 109- legislators to their conform conduct to the 24 (describing section 5’s “critical” is, law. Congress’s finding And Georgia legislature’s influence on the re- —that finding about how the world would have districting process, which culminated looked on precisely absent section 5—rests plan that was precleared objection with no fact-based, (internal type predictive judgment Attorney quota- General omitted)); ill-equipped tion that courts are marks Evidence second Contin- Broad., (explaining ued Need 362-63 how guess. concerns See Turner (“In pull together the resources need- reviewing the cоn- voters to 195, 117 S.Ct. 1174 lawsuit, statute, particu- a section 2 pursue courts must ac- ed” to stitutionality of a rural commu- pre- larly the local level and in deference cord substantial (internal 96; Congress.” see also judgments of nities. Modem dictive Enforcement omitted)). (explain- marks Purpose quotation History, Scope, “in ing that voters local communities then, Congress’s ulti- brings us, This in rural ... do have particularly areas considering the After mate conclusion. litigation bring to the means to access record, including entire 2”). testimony par- Such is under Section (cid:127) Attorney objections that 626 General the vast ma- significant given that ticularly discriminatory voting changes; blocked (92.5 objections percent jority of section 5 (cid:127) cases; 2 successful section 653 2005) pertained to local vot- from 2000 to (cid:127) voting changes proposed 800 over Pitts, ing changes. See Michael J. Let’s in response to withdrawn or modified Yet: A Thing Not the Just Call Whole Off MIRs; Issacharojfs Sugges- Response to Samuel (cid:127) of observers sent to tens of thousands Voting the tion to Scuttle Section 5 of jurisdictions; Act, Rights 84 Neb. L.Rev. 612-13 (cid:127) 5 105 successful section enforcement (“[S]ection (2005); 2 also id. at 616 see actions; to be filed likely cases are much less when (cid:127) preclearance judicial 25 unsuccessful juris- redistricting in smaller comes actions; dictions[.]”). Congress heard also testimo- (cid:127) effect, strong deterrent and section 5’s litigate ny during the time it takes to that i.e., voting changes “the of number years— 2 several section action—often forward as a gone that have never discriminatory law proponents may of a 5,” of No. H.R.Rep. result Section benefits, enjoy potentially winning its elec- 24; gaining advantage tions the of incum- and found that serious wide Congress bency the law overturned. Im- before is persisted intentional discrimination spread Given all pact and 43-44. of Effectiveness “case-by- and that in covered this, persis- given magnitude ... leave case enforcement alone would jurisdic- tence discrimination in covered of inadequate minority citizens rem [an] with tions, Congress case-by- that concluded reaching at 57. edy.” Id. this conclu litigation slow, costly, lacking case — sion, that Congress considered evidence prophylactic section 5’s effect—“would be “intensely complex section claims involve minority protect rights ineffective costly that is and time-con litigation both 109-478, at H.R.Rep. No. 57. voters.” 96; suming.” Modem see Enforcement County, According Shelby “[evalua- Provi Expiring also Introduction to the probative tion of the evidence shows there (describing a Federal Judicial sions systematic no longer is resistance study finding voting rights that Center juris- Amendment in the covered Fifteenth times require nearly four more work cases through cannot solved dictions that average court case and than an district case-by-case litigation.” Appellant’s Br. rank as the fifth most work-intensive however, Congress, reached differ- sixty-three analyzed); of cases types above, conclusion, explained and as ent Boerne, City 521 U.S S.Ct. thinking offered for County has no basis costly (noting the “slow character judgment 2). Congress’s is either unrea- under case-by-case litigation” section unsupported by probative evi- who sonable explained It heard from witnesses us of minority The dissent accuses “over- incredibly that “it is difficult dence. NLRB, §of staffing] inadequacies Corp. 474, 488, such as era delay.” consequences and the Dis- (1951), cost L.Ed. 456 we senting Op. at 888. But conclusion that certainly course, cannot do so here. Of is inadequate Congress’s, section given heavy federalism costs that The dissent believes that the costs ours. job section 5 imposes, our is to ensure actions can “be assumed Congress’s judgment is reasonable Justice,” id., Department but it cites probative and rests on substantial evi- nothing support spec- in the record to such Broad., dence. See Turner 520 U.S. at dissent also believes ulation. The (“In 195, 117 reviewing S.Ct. 1174 always use may “courts the standard constitutionality of a ... statute [o]ur remedy injunction of a preliminary pre- that, obligation sole is to assure in for- irreparable adjudica- harm vent caused mulating judgments, Congress its has delay.” tive Id. 888. But drawn reasonable inferences based plaintiffs preliminary knows that can seek (internal quotation substantial evidence.” injunctions reasonably and determined omitted)). thoroughly marks After scru- plaintiffs that possibility this with —that tinizing given the record and that overt litigating a few resources fact-intensive in racial discrimination persists covered satisfy will able the section case jurisdictions notwithstanding decades of required for in- heavy preliminary burden we, preclearance, section 5 like the dis- junctive relief—was insufficient to alleviate court, trict Congress’s are satisfied that inadequacy its the concerns about sec- judgment judicial deserves deference. tion actions. B. point at which section 5’s unnecessary strong medicine becomes Having concluded that section 5’s longer congruent and therefore no and “current justified by burdens” are indeed on proportional turns several critical con needs,” “current we proceed to second siderations, including pervasiveness inquiry: Northwest Austin whether voting in of serious racial discrimination supports requisite “showing record jurisdictions; continued that a disparate geographic statute’s cov need for section 5’s deterrent and block erage sufficiently is problem related to the effect; ing the adequacy and of section 2 that it targets.” 129 S.Ct. at 2512. Recall litigation. quintessential^ These are leg requirement this stems from the judgments, islative Congress, after ... Court’s concern that Act differ “[t]he assembling analyzing an extensive States, despite entiates between the our record, made its decision: section 5’s enjoy historic all tradition that the States is yet work not done. Insofar as Con- ” ‘equal sovereignty.’ § 5 Id. “The evil that gress’s predictive conclusions rest on address,” observed, is meant must, judgments, contrary we to the dis- “may no longer be concentrated approach, apply a sent’s standard of re- 4(b) jurisdictions singled [by ] out section view even “more deferential we than ac- preclearance.” Id. an judgments cord to administrative ourselves, examining Before the record Broad., agency.” Turner 520 U.S. at emphasize we disparate geo- the Act’s 195, 117 we may Given that graphic coverage its relation to the “displace agency’s] not choice [an be- —and problem voting depends views, fairly conflicting two tween even discrimination' — 4(b)’s only formula, nоt on section but though justifiably the court would have whole, the statute its mecha- including made choice different had ‍‌‌‌​​‌​​‌‌‌‌‌‌‌​‌​​‌‌​‌​‌‌​​‌​‌‌​​​​​​​​​​​​​‌‌‌‍matter novo,” been it de for bail-in Bailout func- before Universal Cam- nisms and bailout. they country’s population, 4’s of the accounted feature of section integral tions as an percent litiga- section 2 subject for 56 of successful jurisdictions are coverage scheme: (1) they Impact tion captured if are since 1982. to section 5 Effectiveness 974; 4(b), they H.R.Rep. see No. at 53. have not bailed also section out, they adjusted meaning that have failed to dem- When Katz data is to reflect (based voting defined population a clean record as these differences on the onstrate 4(a). 1973b(a), §§ population U.S.C. esti- See Census Bureau’s 1973c(a). addition, jurisdictions mates, not then the most recent data available 4(b) but none- captured by section which Congress), the rate of successful section serious, (.94 recent records of vot- have jurisdictions per theless 2 cases in covered discrimination, ing may residents) be “bailed in”— nearly million four times the i.e., preclearance— subjected (.25 to section per rate non-covered 3(c). pursuant to section U.S.C. residents), million as illustrated in the 1973a(c). Therefore, question be- Voting chart Ellen Katz & The below. See whole, fore the statute as a us is whether Initiative, Rights VRI Database Master 4(b) just formula, the section ensures (2006), http://sitemaker.umich.edu/ List jurisdictions subject to section 5 are votingrights/files/masterlistxls; Dep’t those in which unconstitutional dis- Justice, Jurisdictions, 5 Covered Section crimination is concentrated. http://www.justiee.gov/crt/about/vot/sec_5/ (last 9,May 2012); covered.php visited comparing

The most concrete evidence Bureau, Annual Census Estimates jurisdictions in covered and non-covered Population for the United States and study comes legislative record from a States, April 1, Rico: and for Puerto published of section 2 cases Westlaw July 1, 2004, at http://www. available Impact Lexis between 1982 and 2004. census.gov/popest/data/historical/2000s/ 964-1124 El- (report Effectiveness (last vintage_2004/state.html May al.). visited len study, Katz et Known as Katz 2012); Bureau, U.S. Census Annual Esti- key findings suggesting reached two Population mates of in the Resident that racial discrimination remains 1, 2004, July 2000 to jurisdictions April Counties: singled “concentrated in the Austin, http://www.census.gov/popesV available at preclearance,” out for Nw. First, S.Ct. at study 2512. found data/counties/totals/2004/CO-EST2004-01. (last 9, 2012); May of the 114 decisions in html published resulting visited U.S. Cen- Bureau, minority plaintiffs, Population outcomes sus Minor favorable Estimates: originated jurisdictions, in covered Civil Divisions: 2000 available at originated http://www.census.gov/popesVdata/cities/ while non-covered (last Thus, jurisdictions. although ju- covered vis- totals/2004/SUB-EST2004-5.html 2012). May 9, for less ited percent risdictions account than 25 Second, study found higher jurisdictions. success covered Id. When this jurisdictions rates in covered than non- data is broken state-by-state, down sepa- jurisdictions. Specifically, covered rately 40.5 identifying covered and non-covered percent published section 2 decisions in portions states, partially covered jurisdictions resulted in favorable concentration successful cases for plaintiffs, outcomes compared only in the covered is striking. Of percent jurisdictions. non-covered the eight states with highest number Impact and published successful unpublished Effectiveness section 2 per cases million residents —Ala-

The difference between covered and bama, Arkansas, Mississippi, Texas, South non-covered becomes even Carolina, Georgia, por- and covered pronounced more unpublished when sec- tions of South and Dakota North Car- tion 2 primarily court-approved decisions— olina—all one but are covered. Supp. See settlements —are taken into account. As Peyton 3-7; Decl. of McCrary Dr. noted, study the Katz published section 2 Justice, Dep’t of 5 Section Covered Juris- “represent only portion lawsuits dictions, http://www.justice.gov/crt/about/ 2 claims filed or decided since (last 9, vot/sec_5/covered.php May visited many 1982” since claims were settled or 2012); Bureau, U.S. Census Annual Esti- published otherwise resolved without a Population mates of the for opinion. Id. at the United According data States, States and for Rico: compiled the National Puerto Commission on 1, April 1, 2004, Voting July Rights Act and available at Depart- Justice http://www.census.gov/popest/data/ ment historian Peyton McCrary, there have unpublished historical/2000s/vintage_2004/state.html been least 686 suc- (last 1982, 9, 2012); May cessful section since visited cases amount- U.S. Census Bureau, ing to a total Annual published of some 800 Estimates of the Resident unpublished Population 1, April cases with favorable for outcomes Counties: minority July voters. See Decl. Dr. Pey- available at http://www. Decl.”). McCrary ton (“McCrary census.gov/popest/data/counties/totals/ Of these, (last approximately percent were filed visited 2004/CO-EST2004-01.html above, plus eight listed Bureau, residents —the 2012); Popu-

9,May U.S. Census Mexico, Montana, Louisiana, Virginia, New Divisions: Minor Civil lation Estimates: Da- of South portions and the non-covered http://www. available 2000 to are ei- North Carolina —eleven kota and census.gov/popest/data/cities/totals/2004/ covered, including the seven states ther (last 9,May visited SUB-EST2004-5.html Act, or were the 1965 originally Arkansas, 2012). is only exception The (Arkansas and period in for some bailed 4(b), by section which, captured though Note, Mexico). Crum, Travis New pur- subjected partial preclearance was Weapon: Act’s Secret Voting Rights order, i.e., court federal suant to Dynamic Litigation Trigger Pocket Clinton, 740 in.” See “bailed Jeffers L.J.1992, Preclearance, 2010 & Yale (E.D.Ark.1990). Simi- F.Supp. 601-02 Ar- (discussing bail-in of nn.100-01 high- with the larly, of the fourteen states Mexico). This data kansas and New published following number of successful est in the chart on displayed page. million per cases unpublished section County

Shelby objects to the use of there are reasons to approach this data unpublished 2 data, section pointing out McCrary with caution: prepared analy- his that although Congress reauthorization, considered the Na- sis after the 2006 and be- tional analysis unpub- Commission’s cause his data regarding unpublished cases jurisdictions, lished cases in covered jurisdictions in the non-covered was collected legislative separately record does not contain unpublished from the data on McCrary’s analysis of unpublished in jurisdictions, cases cases covered we cannot jurisdictions. non-covered agree We that be certain that the data colleсtion methods 878 by jurisdictions in order said, Supreme have been altered That the identical.

were Act], [Voting evi- or post-enactment Rights with the comply has considered congruent least one law voting to find at that discriminatory changes dence in the Lane, see 541 proportional, and Rep. H.R. No. have never materialized.” (citing nn. 6-9 & 524-25 109-M78, Accordingly, if at 36. discrimina- more published ten or articles and cases throughout evenly were distributed tion Disabilities years after the Americans with nation, expect to see the we would fewer enacted, versions as well as recent Act was juris- section cases covered successful here regulations), and and of statutes jurisdictions. than in non-covered dictions from majority unpublished the cases that (explaining Need 26 Continuing (as as all jurisdictions well non-covered jurisdie- the covered section “makes in the jurisdictions) appears from covered they much than would ‘cleaner’ tion[s] record, McCrary Decl. legislative see coverage”). been without Section have Also, published the Katz data on while substantially more. Yet we see underinclusive, Im- necessarily see cases is argu- two Shelby County makes main that (explaining pact and Effectiveness First, response ments to this evidence. Katz analyzed by cases the published citing finding that the cover- Katzenbach’s all study only a “represent portion” actions), practice formula “rational both Shelby County age has iden- was section in the theory,” tified no or inconsistencies errors Indeed, by McCrary. 4(b) analyzed data irrational it contends that section is that if his meth- McCrary out even points it on data.” because relies “decades-old only unpub- odology identified half of Br. 59. “It cannot be consti- Appellant’s jurisdictions, lished in non-covered cases tutional,” insists, County rely “to Shelby “there would still be S9S more settlements voting data establish on decades-old in” favorably minority resolved voters Id. In ad- voting current discrimination.” jurisdictions. Decl. 11. McCrary covered dition, County claims that in 1965 reasons, not although For these we would “first-gener- was with Congress concerned rely solely published on the combined ation” and devices that de- barriers —tests data, provides unpublished we think access the ballot—and crafted nied that corrobo- helpful additional evidence coverage capture states that formula in the discrim- disparities rates the level of regis- such low erected barriers had ination non-covered between 2006, although rates. But in Con- tration by published revealed was with “second- gress more concerned data. barriers —vote dilution tech- generation” moreover, data, does “minority effec- niques voting weaken above, story. explained As tell whole formula coverage tiveness”'—-it retained oper- found section which Thus, problems. at first-generation aimed only jurisdictions, ates in covered deters “[tjhere concludes, Shelby is a ser- County be- many discriminatory voting blocks laws mismatch the conduct tar- ious between they fore can ever take effect and become geted Congress and factors target litigation. of section “Section 4(b).” under Section Id. trigger coverage preventing 5’s reach in discrimination at 60. in the strength lies not broad. Its argument This rеsts a misunder- discriminatory changes it number of As the standing coverage formula. thwarted, has can also measured but years court election explained, district that have been withdrawn submissions under consideration, coverage “triggers” from that that serve as submissions 4(b) jurisdictions never singled preclearance.” section “were selected because out for something special Austin, occurred those Nw. at 2512. The Coun- Shelby years.” Cnty., F.Supp.2d ty argues also that the Katz study is at Instead, ju- Congress 505. identified the inconclusive, best for some non-covered sought risdictions it to cover—those for states, such as Illinois and the non-covered voting which it had “evidence of actual York, portions of New had more successful Katzenbach, discrimination,” published lawsuits than did sev- worked 86 S.Ct. 803—and then back- event, eral In any covered states. it ward, reverse-engineering a formula to claims, “aggregated statistics showing jurisdictions. (explain- cover those See id. slightly more Section 2 litigation with ‘fa- ing “Congress began work with reli- vorable jurisdictions outcomes’ covered voting able evidence of actual discrimina- a group as is not a rational basis for great majority tion in a of the States and subjecting individually-targeted States to political subdivisions affected the new years another preclearance.” Appel- Act” that it remedies of the “eventual- Br. lant’s ly a formula evolved” “to describe these areas”). coverage The formula relied on Shelby County’s point first —that long tests and devices “because of their Congress failed a finding to make easi —is evil,” history perpetrating as a tool for ly answered. did not have to. rates “widespread because dis- 549, 562, United States v. Lopez, 514 U.S. inevitably enfranchisement must affect the 131 L.Ed.2d 626 number of actual voters.” Id. at (Congress “normally required is not words, Congress S.Ct. 803. In other chose make formal findings” legis order to 4(b) tests, the section criteria not because late). proper The question is whether the devices, participation and low rates were record contains sufficient evidence to dem sought target, all it but they because onstrate that the formula continues to tar served accurate proxies pernicious get jurisdictions with the most serious racial in voting. ques- discrimination The Austin, problems. See Nw. 129 S.Ct. at tion, then, is whether the formula re- presents 2512. This question. a close The techniques, lies old data or but instead record on this issue is less robust than the it, together whether with bail-in and bail- discrimination, evidence of continued see out, identify jurisdictions continues to III.A, supra Part although part this is in does, problems. with the worst If it then difficulty due to the comparing jurisdic though even the formula rests on decades- subject tions that have been very to two factors, old theory the statute is rational in i.e., different regimes, enforcement cov because its “disparate geographic cover- subject ered are to both sec age” remains “sufficiently related to the jurisdic tions and 5 while Austin, non-covered problem that it targets.” Nw. subject tions are S.Ct. at 2512. to section 2. And although the Katz data in aggregate course, Shelby County’s Of argu- real suggest does that discrimination is concen test, i.e., ment is that the statute fails this jurisdictions, just trated in covered three longer actually no identifies the Alabama, Louisiana, jurisdictions “uniquely states — interfering with the Mississippi for much of the dis right Congress seeking protect —account parity. The covered states the middle through preclearance.” Appellant’s Br. 62. pack- Carolina, County points out that South Car Congress nev- —North olina, Texas, finding Virginia, er made a Georgia that racial discrimina- —are in voting tion was “concentrated in the par about on with the worst non-covered 880 found, the mere existence section 5 de-

jurisdictions. And some covered states— in Arizona—had successful cov- Alaska and no ters unconstitutional behavior is, 2 cases at all. published jurisdictions. section That ered middle- range appear comparable to covered states above, however, this data explained As jurisdictions only some be- non-covered picture incomplete an of covered presents blocking and cause section 5’s deterrent the Katz jurisdictions. When we consider discriminatory effect screens out laws be- with other record evi- conjunction data in litigation necessary. fore section 2 becomes dence, quite looks different. picture effect, in Had 5 not been one would instance, only section although Georgia For had in expect significantly 2 cases more discrimination published section three successful 2004, Carolina, Carolina, that time during Virginia, between 1982 and North South unpublished Texas, had 66 successful by state Georgia, all covered section and cases, 5 and objections, 2 83 section 5, section than in the non-covered states with the 5 ac- successful section enforcement S.Rep. No. worst records. See Need 250- tions. Evidence Continued (suggesting Voting that “without addition, 272. In between 1990 and effect,” Rights Act’s deterrent the evi- 2005, jurisdictions Georgia in withdrew ju- in the dence discrimination covered in proposed voting changes response to worse”). considerably “might be risdictions MIRs. Id. at 2566. South Carolina is simi- sure, coverage To be fit is formula’s only lar. the state had suc- Although hardly perfect. not But the fit was perfect cases, published cessful section it had 30 Accordingly, in 1965. Katzenbach’s dis- cases, unpublished section 2 successful helpful guide cussion of this issue offers a objections, and 10 section 5 successful sec- for our inquiry, particularly current when actions, tion 5 enforcement as well as 26 probative we all record consider evidence in to voting changes response withdrawn just of recent discrimination —and changes MIRs and 51 could not law- small section 2 cases upon subset of relied fully implemented respond be failure to dissent, Op. Dissenting see at 898- 250-51, 272, MIRs. Id. 2566. South In 99. the formula covered three moreover, Carolina, one is of the covered courts states “which federal re- ha[d] only states that not has continued racial voting peatedly found substantial discrimi- disparities registration in voter turn- Alabama, Louisiana, and Missis- nation”— out, that has never elected an African but Katzenbach, sippi, p. office. supra American statewide that, three states notwith- same relatively if Accordingly, even standing forty years more than section objections, portion small withdrawn vot- enforcement, the highest still account for ing changes, and successful 5 en- section published rates of successful section liti- correspond forcement actions to unconsti- gation, large as numbers of unpub- well as conduct, even tutional if there are cases, lished section 5 successful substantially unpublished more successful objections, coverages, federal observer jurisdictions section 2 cases non-covered voting changes withdrawn or modified McCrary reveals, than the data these mid- response MIRs. But the 1965 formula jurisdictions dle-range appear also other two States —Geor- “embrace[d] engaged much more unconstitutional gia plus large por- South compared discrimination non-covered Carolina— tions of Carolina— a third State —North jurisdictions sug- than the Katz data alone more fragmentary for which there was fact, gests. discrepancy between evidence of recent discrimination non-covered covered and that, mainly Department the Justice likely greater given even adduced

881 states, Rights including Angeles County, Commission.” Id. at Los and the Civil Cali- fornia; 329-30, Florida; Today, County, the middle- Escambia 86 S.Ct. Thur- County, Nebraska; jurisdictions County, Car- range covered ston Bernalillo —North Mexico; Carolina, Texas, olina, New Virginia, County, South Buffalo South Dako- ta; Dakota; although legis- County, similar: the Charles Mix Georgia South —look city judicial find- and the of Chattanooga, lative record contains fewer Tennessee. Crum, discrimination in 119 ings racial these See Yale L.J. at 2010 & nn.102- states, it fragmentary contains least evi- 08. dence, part Attorney in based General plays important Bailout an even more objections, that these states continue to ensuring only role in that section 5 covers in racial engage unconstitutional discrimi- jurisdictions those with the worst records in the voting. Finally, nation 1965 formula of racial in voting. discrimination As the in swept jurisdictions several other —in- Supreme explained Court in City of Alaska, cluding Virginia, and counties in Boeme, availability of bailout “re

Arizona, Hawaii, and which Idaho —for possibility ducéis] overbreadth” and no Congress apparently had evidence of helps “ensure Congress’ means are pro voting actual discrimination. See id. at 533, to portionate ends.” 521 U.S. at [its] 318, 329-30, Today, S.Ct. 803. the Act 86 2157; Katzenbach, see also 383 encompasses jurisdictions for likewise U.S. at 86 (“Acknowledging S.Ct. 803 which there is some evidence of continued possibility overbreadth, the Act pro discrimination —Arizona and the covered vides for special statutory termination of California, Florida, counties of and New coverage at the behest of politi States and York, see Evidence Continued Need cal subdivisions in which danger jurisdictions 272—as well as substantial discrimination has not or appears which there little no evidence of during preceding materialized five problems current and a few towns —Alaska 9, 2012, years.”). May As of having dem Hampshire. Michigan in and New they onstrated that no longer discriminate moreover, above, Critically, jurisdictions 136 voting, sub-juris noted out, determining “suffi- including whether section dictions had bailed 30 coun ties, ciently problem cities, boards, it tar- related to 79 towns and 21 school 4(b) just we gets,” utility sanitary look not at the section and 6 districts. U.S. formula, whole, Justice, Dep’t Voting but at statute as a Section Act, including provisions Rights its for bail-in and bail- http://www.justice.gov/crt/ bailout_list jurisdictions (last cap- about/vоt/misc/sec_4.php# out. Bail-in allows (“DOJ formula, 9, 2012) List”). by coverage May 4’s tured section but visited Bailout fact, which discriminate in voting, by ruling nonetheless in Northwest Austin that subjected preclearance. to section 5 any jurisdiction section 5 could Thus, high two non-covered development states with seek bailout—a unmentioned published numbers of successful and un- Supreme the dissent —the in published significantly cases—Arkansas and creased extent which subjected partial helps New Congress’ Mexico—were bailout “ensure are means ends,” Boerne, preclearance under the provision. proportionate bail-in [its] 601-02; Crum, F.Supp. See Jeffers, 740 U.S. at Nw. S.Ct. 2157. See Austin, (citing 119 Yale L.J. at 2010 & n.101 San- “all (holding S.Ct. at 2516 82-0067M, Anaya, op. chez v. No. slip political subdivisions—not those de (D.N.M. 1984)). 14(c)(2) Dec. Federal courts eligible scribed to file —are suit”). then, have also bailed in several Not surprisingly, bailout like cannot would out but meet the increased after Northwest bail pace of bailout the successful bailout actions standards, Austin: rate us the low bailout tells percent in the occurred since nothing the effectiveness of bail- about Supreme the is- years after three Cnty., provision. Shelby out in 2009. See Bailout its decision DOJ sued (describing F.Supp.2d at 500-01 “several List, http://www.justice.gov/crt/about/vot/ plausible explanations th[e] for failure to Also, the At- misc/sec_4.php# bailoutJist. bailout,” “the including seek minimal ad- “has a of active torney number General preclear- with ministrative cost associated more investigations, encompassing bailout ance, jurisdic- covered and the fact that subjurisdictions jurisdictions than 100 the preclearance tions see need to avoid no Att’y of States.” Br. for range from a concedes, requirement”). As the dissent 47-48, Appellee LaRoque Gen. application since 1982 bailout been no has (D.C.Cir.2012). Holder, 679 F.3d 905 denied, 900-01, Dissenting Op. and Con- importance of significant The this gress that the considered evidence bailout ly bailout mechanism cannot be liberalized jurisdictions easily proven criteria for “are Underlying the overstated. debate over voting that do in their not discriminate judg the need for section continued 5 is a practices.” Voting Rights Act: An Exami- jurisdictions— ment about when covered Scope nation the and Criteria Cover- for very many with bad historic records age Special Under the Provisions the racial discrimination —have Hearing Act: the Subcomm. enough case-by-case so that sec changed Before Comm, H. Constitution on the Judi- litigation adequate protect tion 2 is (2005). right ciary, Cong. Bailout The to vote. embodies Con 109th dissent gress’s judgment question: juris on this speculates “opaque may that standards” originally dictions because of their bailouts, 900-01, prevent Dissenting Op. at escape histories of discrimination can sec Shelby County specifical- but neither it nor tion a preclearance demonstrating ly challenges Congress’s definition of what voting rights years clean record on for ten jurisdiction or constitutes a clean how the 1973b(a)(l) a row. See U.S.C. Attorney is applying General bailout (bailout criteria). As the Report House fact, above, criteria. Shelby as noted states, “covered status has con been and County never even tried to bail out and juris control tinues to be within the brought only has facial challenge. a If jurisdictions that those diction such that something criteria about bailout them- genuinely clean have record and want Attorney selves General ap- how coverage ability terminate have the to do jurisdictions plying preventing them is 109-478, so.” H.R.Rep. No. at 25. Bail escaping with clean from records section 5 out helps thus that 5 is ensure section preclearance, those criteria can be chal- problem “sufficiently related to that it lenged separate brought by any action Austin, 129 targets,” Nw. S.Ct. at 2512. adversely jurisdiction. See affected Unit- Shelby County complains that bailout Salerno, 739, 745, ed States v. only margins,” “at the helps Appellant’s (explain- S.Ct. L.Ed.2d 697 53; Br. Dissenting Op. see also ing challenge, that “[t]he in a facial fact emphasizes that dissent about might operate [a unconstitution- law] percent jurisdictions subju- of covered ally under conceivable set of circum- some bailout, applied risdictions have Dis- it wholly stances is to render insufficient But senting Op. at 901. absent evidence invalid”). are “clean” there This, then, brings According us to the critical concurring))). dissent, to the geo Is question: “disparate the statute’s this concern and imposed the burden graphic coverage sufficiently ... related to section aggravated by 5 are the amend- Austin, targets”? that it problem Nw. ments to section 5 added con- course, if at 2512. Of the statute junction with the 2006 reauthorization. remarkably fit,” produced “a bad Dissent 886-88; Dissenting Op. at see also 2006 agree we ing Op. at then would §Act congruent longer propor that it is no thoughtful argu dissent’s above, explained although tional. But as ments face a Shelby serious obstacle. 4(b) data, old formula relies on County challenges neither the constitution it, the legislative togeth record shows that ality of the 2006 amendments or even ar provisions er with the for bail-in statute’s gues they that increase section 5’s bur on,” hardly and id. at “tack[ed] bailout— dens, argue nor it does that section 5 (internal omitted), quotation marks but requires jurisdictions covered to undertake integral part coverage rather an of the impermissible considerations of race. single to out mechanism—continues the issues, words, These in other are entirely jurisdictions in which discrimination is con unbriefed, and as we have repeatedly this, given centrated. Given the fun clear, made “appellate courts not do sit that as principle may damental we not legal self-directed boards inquiry an of Congress except down Act “strik[e] research, upon showing essentially a clear unconstitutionali but as arbiters of le — Buono, U.S. -, ty,” v. gal Salazar questions presented argued by the 1803, 1820, S.Ct. 176 L.Ed.2d 634 parties before them.” Regan, Carducci v. opinion), (plurality principled we see no (D.C.Cir.1983). Where, F.2d setting basis the aside district court’s here, as “counsel attempt has made no that “sufficiently conclusion section is issue, address the will not remedy we problem related that targets,” defect, where, especially here, as impor Austin, Nw. at 2512. S.Ct. questions tant of far-reaching significance (internal are involved.” Id. quotation C. omitted). marks turn, finally, We argu- dissent’s they forfeited, Even were not the dis- “requires ment jurisdiction that section 5 a sent’s concerns would not have satisfied only not engage some level racе- mounting the standards for a facial consti- decisionmaking, on conscious but also occa- challenge. challenge, tutional Such sion to sacrifice principles depoli- aimed at Supreme clear, Court has made is “the ticizing Dissenting redistricting.” Op. at most ... successfully, difficult to mount 886; Austin, see also Nw. 129 S.Ct. at challenger since the must that establish no 2512 (explaining that “federalism concerns set of circumstances exists under which are argument underscored that ... Salerno, the Act be would valid.” ‘considerations of race would doom a 107 S.Ct. Yet 2095. the amend- redistricting plan under the Fourteenth ments, well Supreme as the Court’s §or 2 Amendment seem to be what save it ” may concern that section 5 re- sometimes § under “[additional 5’ consti- quire impermissible otherwise race-con- tutional saying concerns are raised in decisionmaking, implicated only scious are §§ this per- tension between and 5 must in a jurisdictions Specifically, sist in subset cases. and not else- Ashcroft, overturning where” (quoting Georgia v. 539 amendment Bossier II is im- J., U.S. at (Kennedy, 123 S.Ct. 2498 plicated involving cases a discrimi- context, much defer- see race. this we owe non-retrogressive purpose, natory but 1973c(c); judgment to the considered amendments ence 42 U.S.C. Ashcroft, representatives. like We af- overturning Georgia People’s elected about race-con- Court’s concern firm. Supreme pri- are decisionmaking, implicated scious So ordered. cases

marily redistricting where race as consideration of require 5 seems WILLIAMS, Judge, Senior Circuit ” “ Austin, factor.’ See Nw. ‘predominant dissenting: v. Ash- (quoting Georgia at 2512 Voting Rights Act im- Section (Ken- 491, 123 U.S. at S.Ct. 2498 croft, 539 poses extraordinary rather burdens J., concurring)); 42 U.S.C. nedy, (and jurisdictions “covered” states —nine (d). words, 1973c(b), as- §' In other even therein), a host every jurisdiction plus correct, suming the it would dissent several oth- through scattered “no established that set of circum- have Section, Voting Dep’t er states. See which Act would stances exists under Justice, Jurisdictions, Section 5 Covered valid,” Salerno, 745, 107 481 U.S. at http://www.justice.gov/crt/about/vot/sec_5/ Indeed, addressing the dis- 2012) (list- (last covered.php May visited the arguments would lead us into sent’s jurisdictions). ing the covered Unless and very kind of and “antici- “speculation” (a coverage process until from released pation]” questions constitutional below), jurisdic- discussed each these chal- require courts to facial “disfavor[]” Department’s tions must seek the Justice lenges. Grange Wash. State Wash. change approval every contemplated for 442, 450, Republican Party, 552 State trivial. procedures, election however See (2008) 170 L.Ed.2d 151 § Alternatively, it U.S.C. 1973c. can (internal omitted). quotation marks approval a three-judge seek from district in the court District Columbia. See id. IV. by Below I’ll the criteria which address the Austin, Supreme Northwest pro- courts Department and assess these signaled extraordinary that the fed- Court now, posals; say for suffice to that the imposed by eralism costs section 5 raise only proof act switches burden of As a substantial concerns. constitutional supplicant jurisdiction, ap- to the but also urged federal this lower court to strike plies quite substantive standards different duly Congress, must enacted law of we those governing from rest of the nа- caution, with proceed great bound as we tion. by Supreme precedent con- are Court 4(b) the act two Section states criteria fined as we must be resolve jurisdictions which are chosen this legal precise question before us: Does jurisdiction special treatment: whether a remedy preelearance severe remain (1) restricting a had “test or device” “congruent proportional”? legis- The or opportunity register vote a unambiguous. lative record no means registration voter or turnout rate below Congress But drew reasonable conclusions 1973b(b). § 50%. See 42 U.S.C. But gathered from extensive evidence it 4(b) § specifies that the elections for which pursuant and acted to the Fourteenth and these two criteria are measured must be Amendments, Fifteenth entrust which ago. place several decades ones took ensuring Congress right with that the freshest, The most recent data relate to surely among important the most vote— years conditions in November 1972—34 guarantees political liberty in the Con- abridged Congress account of extended the act for an- stitution —is not before (and years before years priate Maj. other 25 thus standard of review.” Op. at 859.)1 expiration). greater the extension’s scheduled imposed burdens jurisdiction 5,§by The oldest data —and a in- the more id. accurate the coverage every If, of the oldest data is § cluded because scheme must be. for example, covered as one condemned under the merely required bit as eight years another notify newest—are older. Department the Justice of an im- See id. pending change in voting procedures, with- giving Department out power delay

Of course sometimes a skilled dart- or implementation, thwart a even rather eye throwing thrower can hit the bull’s coverage loose formula likely appear would I dart backwards over his shoulder. As proportional. below, try will to show hasn’t proven adept. so the criteria Whether are § requires But much more than notice. (are they viewed in absolute terms ade- jurisdictions, For covered it mandates anti- quate justify themselves to the extraor- cipatory review of legislative state or ad- 5?) § dinary burdens of relative ones acts, requiring ministrative state and local (do they draw rational line between cov- officials to hat in go hand to Justice De- jurisdictions?), they ered and uncovered partment officialdom to seek approval of not, They my seem to me defective. are any proposed and all voting changes. See view, “congruent proportional,” 1973c(a). as re- 42 U.S.C. inception, Since its quired by controlling Supreme prec- supporters even Voting Rights Act My colleagues they I edent. find are. recognized preclearance have that the re- dissent. gime particularly was “strong medicine” particularly

for a problem. extreme Vot- ing Rights Hearings Act: H.R. 6400 Although only it is the irrational cover- Subcomm. No. 5 the House 4(b) Before § age formula of that I find unconsti- Comm, Judiciary, on the Cong. 89th 110 tutional, impossible it is to assess that (1965) (statement Chelf). Rep. When it looking formula without first at the bur- VRA, first upheld Supreme § imposes jurisdictions. dens on covered recognized it “complex as a scheme of 4(b) Any question § answer to the whether stringent § in particular remedies” and “sufficiently problem related to the it as an “uncommon congressional exercise of targets,” Municipal Northwest Austin power.” Katzenbach, South Carolina v. Holder, Utility Dist. No. One v. 557 U.S. 301, 315, 334, 803, 383 U.S. 86 S.Ct. 193, 2504, 2512, 129 S.Ct. 174 L.Ed.2d 140 (1966). L.Ed.2d 769 years And a few (2009), is, “congruent that whether it is ago the Supreme Court reminded us that proportional,” ‍‌‌‌​​‌​​‌‌‌‌‌‌‌​‌​​‌‌​‌​‌‌​​‌​‌‌​​​​​​​​​​​​​‌‌‌‍must be informed § the federalism costs of 5 are “substan- 4(b). (I § consequences triggered by Austin, tial.” Northwest 129 S.Ct. at 2511. agree majority with that Northwest powerful signal Austin that con- A aspect “send[s] critical of those costs is the (a gruence proportionality appro- is the shifted of proof burden matter I’ll dis- standard, signed coverage 1. Given such a I by having cannot understand formula apply we Judiciary how could Salerno’s “no set of cir- chair of the Senate Committee test, 883, Maj. Op. quite map cumstances” see every throw darts at a and had included apart questionable jurisdiction from the test's continued where a dart landed. Would we see, vitality, e.g., Washington Grange expected reject challenge simply State v. a facial Washington Party, Republican showing State 552 U.S. on a the behavior of one covered 442, 449, 1184, jurisdiction blatantly 128 S.Ct. 170 L.Ed.2d 151 was so unconstitutional (2008). Suppose Congress actually cry application § had de- as to out for 5? redistricting. Suppose a depoliticizing signifi most realm of its in the cuss below implement sought to jurisdiction too is the section’s So application). cant “good govern- call may loosely what we any voting § sweep: applies broad example, It might, principles. ment” jurisdiction, by a covered change proposed to a com- redistricting delegate the task magnitude, to kind or regard without criteria such apply puter programmed likely could many laws governs thus conformity to contiguity, compactness, “minority abridge” a “deny or never boundaries, and satisfac- existing political to vote.” See opportunity group’s requirements. one person, of one vote 1973c(a); Bd. tion § Allen v. State U.S.C. resulting worthy goals, the 817, Despite these 544, 566, Elections, 89 S.Ct. 393 U.S. (“The to reduce the number (1969) plan, happened if it histo legislative 22 L.Ed.2d districts, would fail majority-minority supports the view ry on the whole government acknowl- as the any preclearance, en to reach state Congress intended Tr. of Oral edged argument. at oral actment, law of altered the election which Kennedy cau- Arg. at 37-38. As Justice way.”). a minor in even a covered State 461, Ashcroft, v. 539 U.S. Georgia tioned by the point is underscored This obvious (2003), 2498, 156 L.Ed.2d of covered 123 S.Ct. declining share miniscule and of race that would doom “[Considerations that draw Jus jurisdictions’ applications Fourteenth redistricting plan under the only five objections Department tice —with ... seem to be what save Amendment every ten thousand submis objections for § 5.” Id. at 123 S.Ct. 2498 Richard under 1998 and 2002. See sions between J., (Kennedy, concurring); see also Miller Hasen, Renew Congressional Power to L. Johnson, Voting v. Provisions the Preclearance (1995) Lane, (noting that 132 L.Ed.2d 762 Rights Act Tennessee After “implicit command 177, 192 (noting Department’s Justice fig.3& Ohio St. L.J. un- engage presumptively that States objection rate has Department’s that the districting brings early constitutional race-based steadily” ever since the falling “been the Four- the Act ... into tension with equaled 0.05% be years of the YRA Amendment”). 2002). majori In the vast teenth tween 1998 and cases, then, the overall effect of 5 is ty of Unfortunately, Congress passed when delay implementation per of a merely to VRA, only it not the 2006 version fectly proper law. Kennedy’s flouted Justice disregarded but (b) (d) subsections features of concern. New course the most critical Of Georgia §to 5 to overturn ap- were added § are the substantive standards 5 Ashcroft, thereby restricting flexibility the jurisdictions. to the covered Wheth- plies with different experiment of states to voting change pre- a can be proposed er (and even maintaining perhaps a methods of whether it would have cleared turns on minority influence. The Geor- minority expanding) voters. retrogressive effect on States, 130, ap- a holistic prescribed had gia 425 Court Beer v. United (1976). 5, instructing § courts confront- 141, 1357, proach to 47 L.Ed.2d 629 96 S.Ct. “not voting change juris- ing proposed [to] a a practice requires In this standard ability of a solely comparative on the level of focus only engage diction not to some a candidate of minority group to elect its also on decisionmaking, but race-conscious 480, choice,”2 2498 at 123 S.Ct. aimed at 539 U.S. principles to sacrifice occasion here, reserving pattern revolving § enees. I follow around 5 invari- 2. The discourse minority ably opinion that members of a consideration of assumes for the end of the prefer- virtually have identical interests

887 amended, the (majority but also to consider As the act forecloses opinion), this plan a the changes “extent to which new choice. Preclearance now has an exclusive minority group’s opportunity participate plan focus—whether the diminishes the process” large, (always writ at of political ability id. minorities assumed to be monolith) 482, Georgia gave thus a their preferred 123 S.Ct. “elect candi- choice,” of opportunity irrespective an to dates of whether ones) mi- concentrating policymakers (including minority make trade-offs between de- nority increasingly long-term safe cide that a group’s voters districts interests those out be spreading might some of voters better served less concentra- districts; choice, into the latter thus of the political additional tion—and less isolation out, might spawns. pointed the Court increase that concentration 42 See U.S.C. 1973c(b); 1973e(d); representation” they enjoy § § “substantive id. see also Texas States, minority 244, “isolating and lessen the risks of v. United F.Supp.2d 831 (D.D.C. 6440006, of 2011 *4 voters from rest of the State” and WL 2011) 22, to Dec. “narrowing political (interpreting [their] influence the amended Georgia). of law to overturn only political a fraction districts.” Id. The amended 481, 1702; § thus not mandates see also Samuel Issa- race-conscious decisionmaking, charoff, particular but brand Voting Rights Is Section so, doing § it. new Success?, aggravates Act Victim Its Own (2004) both the federal-state tension with which (express- Colum. L.Rev. Northwest Austin was concerned and the § ing concern that 5’s “narrow focus on § tension between 5 and the Reconstruc- securing electability minority candi- tion Amendments’ commitment to nondis- compromise range politi- dates could crimination. minority cal accords available to voters thereby, under conditions of mature § Another 2006 amendment makes the political actually mi- engagement, thwart even prohibits burden heavier. Section 5 nority political gains”); Epstein David & preclearance of the “pur laws have O’Halloran, Sharyn Measuring the Elec- pose” “denying abridging right or Policy Impact toral and Majority-Mi- vote on account of race color.” U.S.C. Districts, nority Voting J. Pol. Sci. 1973c(a). Am. § interpreted The Court had (noting 390-92 that overreli- “purpose” be consistent with 5’s ef majority-minority ance on districts means prong, justified fects so that the term de will likely “moderate senators re- nying preclearance only to with a changes placed extremists,” undermining “retrogressive” purpose, rather than ability to “biraeial create coalitions [which] changes with either that or a discriminato key racially are a passing progressive ry purpose. See Reno v. Bossier Parish policies”). Bd., In so doing, recog- School minority might 866, (“Bossier ”). nized that fact group a in 145 L.Ed.2d II 845 representation ... greater “achieve overall The 2006 that amendments reversed deci by sion, increasing the of representa- specifying “purpose” number that encom sympathetic “any tives to the interests of minor- passed discriminatory 42 purpose.” added). voters,” 1973c(c) ity merely by electing § rather than (emphasis U.S.C. This possible broadening may § the maximum number of of 5 repre- criteria seem dependent securing sentatives on a majori- unexceptionable, previ but the Court had ty minority 483, juris of votes. U.S. at 123 ously assigning 539 found that covered S.Ct. proving 2498. dictions the burden of the absence assumption

how real and such an relates to the world to the 15th Amendment.

888 (and by remedy § thus a than discriminatory precisely was drastic purpose of effective). easy it had em- less But is Department that the criteria device some majori- 2, maximizing § pursuit in its of of such inadequacies overstate ployed to key “The any at cost: delay. districts of ty-minority consequences and the as cost is which position, the Government’s to in Maj. Op. at most Compare 872. Unlike if not from objection letters from its plain § 2 can costs for suits litigation, plaintiffs’ ..., always this court is its briefs to of by Department in be assumed effect a proffer failed to Georgia that has been exercising its authori by its either Justice its refusal nondiscriminatory purpose for itself, see, e.g., United ty bring to suit take the two in the first submissions (9th County, v. Blaine 363 F.3d 897 States necessary additional] to create [an steps Cir.2004), by intervening support of Miller, majority-minority district.” See, e.g., it plaintiff, as often does. 924, By inserting 2475. at S.Ct. Comm’rs, 706 F.2d Brown v. Bd. School of 5,§ and re- discriminatory into purpose (11th Cir.1983). 1103, far as De So affirmatively jurisdictions quiring constraints are con partmental resource absence, Congress appears its prove would, cerned, § a narrowing reach as 5’s worst, have, “the Justice De- at restored arithmetic, it to simple matter of enable that implicit command States partment’s § 2 whatever increase enforcement with unconstitutional presumptively engage § stopped spending on 5. For resources 927, 115 districting,” id. at race-based Department where those cases the Justice best, “exacerbate[d] S.Ct. intervene, § 2 for provides fails to still pre- costs that the substantial federalism expert fees attorney reimbursement exacts,” procedure already Bos- clearance parties. prevailing See U.S.C. II, 336, 120 866. 528 U.S. at sier 19731(e). Finally, § to the risk that as Shelby that majority correctly zenbach, 328, 383 U.S. at 86 S.Ct. in a practices that denial “result[] § 2 actual was tailored to redress ac- While abridgement” right to vote “on discrimination, § of 5 was craft- race instances count of or color.” U.S.C. 1973(a). “century systematic of § section is less ed to overcome Doubtless the residing ju- to the Fifteenth Amendment” African-Americans in resistance covered ongoing City and “obstructionist tactics.” Id. risdictions. Rome v. United of States, 156, 180-81, in jurisdictions But life the covered has (1980). 64 L.Ed.2d 119 Beyond vot- years in the 48 since the congealed er registration officials, and black elected (or years triggering first election the parties the point comparative, us to state- recent). “[Cjurrent most since the bur- by-state detailing data the number of fed- justified by dens ... must current be eral observers sent into states to oversee needs,” Austin, Northwest 129 S.Ct. at elections, plus the number of successful § imposed by the and burden 5 has § 2 I lawsuits. of take each these in turn. in only grown years. those heavier same Registration Voter and Turnout 4(b) § In order for to be congruent and then, 4(b)’s proportional disparity the in current Section coverage formula of evidence discrimination between keyed the to two indicators voter access: jurisdictions and covered uncovered must voter turnout and the use of tests and proportionate to the severe differential devices in registration. voter § imposed by 1973b(b). treatment 5. Put another § U.S.C. In 1966 the Supreme way, gap a distinct must exist between the Court characterized VRA “specifi- the as current levels of in the discrimination cov- cally designed” remedy the “misuse of jurisdictions in ered and uncovered order tests and devices” that characterized the to justify subjecting group the former “widespread persistent discrimination” § even if remedy, might 5’s harsh one find Katzenbach, at the time. 383 U.S. at § 5 appropriate group. for a subset of that meant, S.Ct. 803. Section 5 was thus least, very

the that ensure members minority groups had equal access to the I turn assessing now the evidence voting booth. 4(b) justify § used to coverage formu- parties la. sophisti- have offered no Figures I and II3 focus on this central analysis cated statistical dis- problem. The two charts compare white crimination the covered and uncovered registration and black and turnout rates jurisdictions, and what follows does not election, state-by-state using esti- to fill purport gap. the sophistication mates from U.S. Census Bureau. See Bureau, Reported Voting Census The data considered are drawn from the Registration Voting-Age the Total Pop- cited, the parties evidence have as well as ulation, tbl.4a, http://www. available at general compiled by the more set Con- census.gov/hhes/www/socdemo/voting/ gress, especially Supreme data publications/p20/2004/tables.html. Each previously important. has in- found For non-Hispanic chart takes the stance, number upheld preclearance when it registered whites who or turned as a regime Supreme out Court noted proportion citizen “significant disparity” voting-age both the total still (“CVAP”) population compares existed between African-American and registration rates, ratio to popu- white voter and the fact the same ratio for the black lation, i.e., displays the number of elected ratio black officials these two in covered “fell far short of ratios for each state. Thus greater (and being representative” of the number of the ratio further the left on the and, Michigan portion 3. All the charts exclude New tute a minute of those states states, tell, Hampshire, partially both can be- far as I have never been the townships subject few cause the small covered consti- of a 5 action. popu- (presumably because the black rates disparity. racial greater chart), the Cen- states where sufficient get excludes too small The chart lation was make reliable was unable to sus Bureau sample).4 turnout registration of black

estimates Dakota, Nebraska, Mexico, tana, New North jurisdictions excluded are 4. The Vermont, Island, Utah, Alaska, Hampshire, Oregon, West and South Dakota. Rhode New those, only fully Alaska is a covered state. Wyoming. Of Virginia, and are states excluded for want of data The other Idaho, Iowa, Kansas, Maine, Hawaii, Mon- offenders, appears be no African-Amencans positive There correla- worst 4(b)’s greater proportion out in than §in turned coverage tion between inclusion whites. registration formula and low black or turn- Quite

out. opposite. To extent Black Elected Officials exists, that any appears correlation to be The other metric that Rome Court 4(b) negative under —condemnation of black elect- considered was number higher registration marker of black Figure III ed officials. uses U.S. Census turnout. Most of the worst offenders— state-by- data from and a Bureau states where 2004 whites turned out state breakdown such officials from higher registered significantly pro- were year displays same number portion than African-Americans —are African-Americans who had been elected include, example, for covered. These of their proportion to office as a share Massachusetts, Washington, three given state. See the total CVAP worst— Bostis, and Mis- A Econ. and Colorado. And Alabama Joint Ctr. Pol. & David Studies, two Elected A Statis- sissippi, thought often of as Black Officials: Thus, higher the http:// Summary phc-t31/index.html. available tical (and further to accordingly the www.jointcenter.org/research/black- percentage chart), on the closer African- elected-offieials-a-statistical-summary- right Bureau, 2000; Voting-Age positions Americans’ share of elected U.S. Census Citizens, at their of the CVAP. States Voting-Age equaling share Population share of http://www. where African-American & available tbls.1-1 was less than 3% are excluded. census.gov/population/www/cen2000/briefs/ CVAP states, Again being inverse top results are the covered with the five all 4(b)’s Louisiana, juris- § presuppositions. fully (Virginia, covered Covered states Alabama). Carolina, have Mississippi, dictions more black officeholders South far proportion population poor as a can the some black Nor scores achieved up than do uncovered the ten states ones. Of uncovered states be chalked small Missouri, Illinois, highest proportion populations. with the of black elect- Dela- black population, eight Michigan, ed officials relative are African-Ameri- ware where CVAP, political personas pitched overwhelmingly least 10% the comprise cans side) (i.e., all fall to the left worse aisle, to the Democratic side of the fully every of the states one hardly be surprising they might would 4(b). relatively number high § While special seeking face obstacles statewide of- in covered states black officeholders course, (assuming, racially-polarized fice might taken as a testament 5’s does). §as voting, Epstein, supra, success, argue past credibly no one could at 390-92. coverage are of the proof that the numbers Federal Observers rationality. scheme’s continued 5,§ In district court ac- upholding the 8 of Section the VRA authorizes the number of knowledged the black Department to send federal observers had but elected officials increased found poll- covered in order to enter insufficient, of positions the nature the ing places and monitor if elections “neces- pointing particularly to the nationwide dis- sary guarantees to enforce the 14th of the parity proportion the between the black of or 15th amendment.” 42 U.S.C. (11.9%) population the of number 1973f(a)(2)(B). 3(a) § § Additionally, per- black officials elected to statewide office mits a court to appointment authorize the (5%). Holder, Shelby County v. any of federal political observers subdi- (D.D.C.2011). F.Supp.2d 468-69 It is vision, uncovered, whether covered if supports singling unclear how this the out “appropriate the court finds it to enforce jurisdictions. covered the 35 black offi- Of voting guarantees the holding fourteenth or cials statewide elective office in the country in 1973a(a); whole 2 from (including § fifteenth Id. amendment.” (11) Islands), Virgin nearly a 1973f(a)(l). U.S. third § see also id. In an extensive states, fully Bostis, came from covered su- report, the National on Commission tbl.7A, pra, at 24 a proportion roughly Rights Voting mapped Act the number of equivalent jurisdictions’ to these share of occasions these observers had been as- vot- nation’s African-American citizen signed 22-year states in the period be- (about 33%), ing-age population see U.S. prior tween the VRA authorization Bureau, Voting-Age Population Census and the election. See Nat’l Comm’n Citizens, Voting-Age supra, at tbl.1-3. Act, Voting Rights Protecting Mi- might expect Of course one that the higher nority Voting Voters: The Act at Rights average African-American share of the (Feb. & Map Work at 61 10B population in the states lead covered would 2006) (“Nat’l Report”). Figure Comm’n higher to a share of statewide elected offi- state-by-state shows the IV distribution if cials. But on that account one thinks coverages per minority observer million there a has been shortfall the covered residents, minority population where the states, might part by caused by subtracting non-Hispanic calculated maximizing Justice Department’s policy population white from the total popu- districts, majority-minority with the con- lation, as estimated Census “isolating comitant minority risks voters Bureau, Bureau. See U.S. Annual Census “narrowing from the rest the State” and Population Estimates for Race political [their] influence fraction Hispanic Origin Alone and or Latino political Georgia Ashcroft, districts.” 1, 2004, July the United States and States: 461, 481, http://www.census.gov/popest/ available at (2003). If L.Ed.2d African-American data/historical/2000s/vintage_2004/state. primarily solidly candidates face African- constituencies, develop American and thus html. 4(b), lawyers instead to send its own staff supports ring

Superficially, Figure IV to monitor elections areas of the “[i]n indicating being that observers are sent country where Federal observers cannot than to uncov- states more often meaning, (presumably be sent” “cannot be eight of the “worst” states ered ones. Six necessity sent without the and deterrent of But a of factors are covered ones. number Voting Rights getting approval”). court First, any serious inference. undermine Ex- Act: Sections 6 and 8—The Federal report explains the National Commission Program: Hearing aminer and Observer “each occasion when captured that it has on the Constitution Subcomm. Before jurisdic- are detailed to a federal observers Comm, Judiciary, on the 109th 5 or Section 203.” tion covered Section (2005) (statement Cong. 196 of Bernard Report (emphasis at 60 add- Nat’l Comm’n Schlozman). fact, calling when this to ed). implication is that the apparent attention, Congress’s Department official purport to collect data Commission didn’t great noted that the “the bulk of ... re- for not covered either of since, say cent enforcement cases so, sections; those if the data are useless jurisdictions (e.g., have involved Massachu- Indeed, comparative purposes. testi- setts, California, York, Jersey, New New mony Congress suggests before the Florida, Washington, Pennsylvania) Rights simply Civil Division doesn’t use statutory authority no where there is states, prefer- “observers” for uncovered send Federal observers.” Id. assign for authorization to observers ‍‌‌‌​​‌​​‌‌‌‌‌‌‌​‌​​‌‌​‌​‌‌​​‌​‌‌​​​​​​​​​​​​​‌‌‌‍the National court if we to assume

Even were areas, § no imposes while to uncovered complete, and figures to be Commission’s ones, under- hurdle for the covered such every federal observer between thus that already question- further the data’s mining jurisdiction 2004 was sent to 1982 and able value. under some part already covered Lawsuits Section 2 (either 203), § suggests § this 5 or

VRA Successful data’s relevance: limitation on the another comparative for which The final metric that administers Department The same § 2 law- reported, successful data exist where to § also decides preclearance point comprehen- us to a Appellees suits. observers, unsurprising that so it is send § 2 cases reported, post>-1982 sive list states, already are which the covered Ellen Katz and compiled by Professor also re- sights, University would Department’s Initiative at the Voting Rights Ellen Katz Finally, See Michigan most observers. Law School. ceive the Initiative, Data- Rights VRI Voting Department go & the Justice forces (2006) (“Katz base Master List Master tion estimates used above. Pro- Because fessor helpfully Katz’s database informs us List”), http://sitemaker.umich. available at whether each lawsuit was located a cov- Rely- edu/votingrights/files/masterlist.xls. jurisdiction, possi- ered uncovered it is data, ing on these the district court noted ble to break out portions the covered § 2 that more than 56% of successful suits partially covered states from the uncov- from 1982 to 2006 have been filed cov- “(C)” portions:5 ered A below the state’s jurisdictions, although jurisdic- ered those abbreviation indicates that the data per- only a of the na- comprise quarter tions tain portion to the covered of that population. Shelby County, tion’s state, “(NC)” and an oppo- indicates the F.Supp.2d at 506. site. Because one successful case persuasive power But the of this statistic portion covered of South Dakota in 24 disaggregate when we the data dissolves years produced a ratio of 43 cases for Figure V looks at each state’s state. every hypothetical residents, million § 2 number of successful lawsuits between portions of South Dakota are ex- residents, per 1982 and million using cluded in order to distorting avoid popula- the same 2004 U.S. Census Bureau chart’s scale. 1, 2004, separately popula- In order to calculate the http://www.census.gov/popest/data/ portions partially tions of the covered cov- .html counties/totals/2004/CO-EST2004-01 York, California, (namely, ered states New (linking county-specific data for these Carolina, Florida), North Chart V uses Section, others); Voting states Dep’t county-specific population from estimates Justice, Jurisdictions, Section 5 Covered the U.S. Census Bureau. See U.S. Census http://www.justice.gov/crt/about/vot/sec_5/ Bureau, Annual Estimates of the Resident (last 9, 2012). covered.php May visited Population April July for Counties: 2000 to

Like the federal fully observer data discüssed two covered states —Arizona and above, Figure suggests that a nar- Alaska—which do not appear V more on the chart at all rowly coverage tailored because there has been captur- not one formula — § successful 2 Alabama, suit those states in the ing only Mississippi, and Louisi- 24-year whole period. jurisdic- Of the ten ana, possibly portions the covered greatest tions with the number of success- South Dakota and North might Carolina — (five lawsuits, § 2 only ful four are covered beyond these, be defensible. But the cov- if we portion add back the covered jurisdictions appear indistinguishable ered Dakota). A South formula with an error peers. from their uncovered The five rate of 50% or more does seem “con- jurisdictions, worst uncovered including at gruent proportional.” (Illinois quite populous least two states Arkansas), have worse records than numbers, majority To bolster these eight jurisdictions: of the covered the six relies purportedly on an account of suc- cessful, cases, appearing right, plus § covered states to the but 2 unreported numbers weight, one rightly “approach supposed and the difference in the substantive stan- (1) tions into categories: group three governing § § dards proceedings. and which “federal repeatedly courts have discrimination”; found substantial deterrence, voting

As to the imputed it is plain- (2) ly unquantifiable. group If another “for which we assume that it there was has role, played a fragmentary how much should more evidence of we inflate recent vot- (3) discrimination”; figures ing covered states’ to account for and a third set it, and which covered states? much consisting Given of the “few remaining States necessarily subdivisions covered political finding and entail a of unconstitu- formula,” there for which was little or no (i.e., tional behavior intentionally discrimi- discrimination, such evidence of but whose acts); indeed, natory Study the Katz itself voting tests and low voter turnout use reports only findings of intentional dis- inclusion, “at least in warranted the ab- crimination in the covered proof they sence of have been free of decades, over the same two-and-a-half and in substantial discrimination recent my reading of the cases Professor Katz Katzenbach, years.” 383 U.S. at lists, See, there are even e.g., fewer. review, original In that 86 S.Ct. 803. Comm’rs, Brown v. Bd. School 706 F.2d (Ala- placed Court three Supreme states (11th Cir.1983) (listed in both Louisiana) bama, Mississippi, and in cate- reports Senate and Katz as a case one, gory another three (Georgia, South finding intent, discriminatory but the case Carolina, portions and the covered only finds such intent as to an electoral Carolina) two, category North in and final- 1876). system enacted in ly fully (Virginia two covered states and Alaska) Hawaii, plus a few counties in Even assuming that these small num- Idaho, Arizona, category in and three. qualify bers would “fragmentary evi- adduced yields adequate evidence above a far dence” place those three in fit than worse the data reviewed in Kat- category, Katzenbach’s second that leaves Indeed, zenbach. one would be hard- fully six covered (plus juris- states several pressed put any jurisdic- of the covered states) dictions in partially covered in cate- category. tions into Katzenbach’s first three, gory many more than in when any Based on of the comparative data only fully two covered (Virginia states and us, particularly available to and those met- Alaska) were not included in catego- either Rome, hardly rics relied on it can be Katzenbach, ry one or two. See argued that there is evidence of a “sub- 318, 329-30, 86 S.Ct. 803. A coverage stantial” amount of voting discrimination scheme that allows two or three of the states, any of the covered certainly and worst offenders drag down other cov- anywhere comparable not at levels to those jurisdictions, ered whose continued inclu- faced in Katzenbach. terms merely sion is a combination of historical suits, only of successful 2 law three cov- artifact Congress’s disinclination to Louisiana, ered Mississippi, states — formula, update hardly thought can plus uncovered Montana —have Alabama — “congruent proportional.” See Na- than per more two successful suits million Persily, thaniel The Promise and Pitfalls past residents over the quarter-century Act, Voting Rights the New 117 Yale (excluding of course the portion L.J. (concluding 208-09 Dakota, South which high only scores be- any coverage “debate over the formula” population cause with such a small the one “likely would have led to complete produces high per suit there ratio hypo- unraveling” of the VRA’s 2006 reauthoriza- million); fact, thetical these three states (“The tion campaign); id. at 208 most one are the ones with more than 10 suc- say can in defense of the formula 24 years cessful suits between 1982 politically is the best of the Katz feasible alter- 2006.6 See Master List. And of course, ”). may natives .... Congress’s inability even this number be artificial- ly large § 2 agree since a successful suit does currently on a coherent formula is I portions exclude North Carolina here because four uncovered of the state. See Katz of its ten successful were suits located in Master List. Instead, good upholding

not a reason for its exten- on “tests and devices.” the ma § sion of an anachronism. jority objections today concern re Peyton al., districting. McCrary See et Moreover, the 1966 relied on The Law Enforcing Preclearance: Sec rather a natural inference from the data 5, Voting tion in Future tight relationship available. The between (David 20, Rights Epstein 25 tbl.2.1 et Act (i.e., trigger the two criteria voter turnout 2006) eds., al. (redistricting objections devices”) voting and the use “tests and comprised only Depart 17% Justice and evidence of discrimination the states objections 1970s; '90s, ment in the in the two, in categories logical one and made it they objections). constituted of all 52% suppose Congress reasonably in- Accordingly, quite apart from the trigger comparable ferred a fit for the remaining fossilization, hopeless criteria’s the intrin covered for which direct evi- sic link between them and their conse (i.e., dence of discrimination missing was quences has ceased to exist. three). category those in today But trigger criteria have any lost inherent link Nor is the coverage materially formula key to the triggering concern. The newest helped by the VRA’s bailout provision. 1972, data hark years back to before Although Katzenbach did note enacted, the current formula was 4(a)’s § provision bailout might alleviate nearly years before the current act overinclusiveness, concerns about see 383 Indeed, expires. if the formula were to be 803, U.S. at ability its to act data, updated to use more recent election as a escape questionable. reliable hatch is only it would cover Cong. Hawaii. See 4(a) form, original § its essentially per- H5131, (daily July H5181 ed. Rec. any jurisdiction mitted bailout for that had 2006). not voting used a “test device” in the previous years. five Voting Rights critically, More acceptance the Court’s 4(b) 89-110, 4(a), § Act of Pub.L. § 79 Stat. formula in explicit- 1966 was 437, 438. any This effect ly excluded cov- based on certain reasonable under- jurisdiction ered whose record was standings § 5’s focus. Explaining why clean enactment, as of the date of initial it problem saw no serious challeng- and until 1982 4(b)’s the later reenactments’ lan- ers’ claim of § underinclusiveness— guage (i.e., continued that effect exclusion allowed employing of localities not “tests only access to bailout jurisdic- for those or devices” but showing voting evidence of tions with clean records as of the discrimination VRA’s other means —the Court initial adoption). majority While the cor- observed that had learned that rectly notes that persistent 1982 amendments discrimination typically “has en- constraint, Maj. relaxed Op. see devices, tailed the misuse of tests and 855-56, those same tightened amendments this was the evil which the new reme- remaining substantive A specifically dies were standards. designed.” Katzen- bach, jurisdiction (em- can now obtain bailout 86 S.Ct. 803 if, added). if, phasis that, it can Despite demonstrate language 5’s imposing during preceding years, ten preclearance on all manner of has (1) (simplifying slightly): rules not within effectively the act’s definition en- devices,” gaged of “tests or in no voting discrimination (proven Court under- standably on, any judicial saw the act the absence of finding as focused or in for, its “specifically designed” words root- discrimination or even a Depart- Justice ing (unless out “the misuse of “objection” tests and devices.” ment judicially over- §But 5 litigation longer turned)); no faithfully centers at all complied §with voting proce- “eliminated and numerous additional preclearance; not election which inhi- seriously dures and methods of different from the uncovered equal to the electoral bit or dilute access “by tacking states —cannot be saved on a (4) engaged in “constructive process”; and procedure” waiver such as bailout. eliminate intimidation and efforts FCC, 551, Corp. ALLTEL v. 838 F.2d persons exercising rights harassment (D.C.Cir.1988); cf. U.S. Telecomm. Ass’n under the act and “in other protected” FCC, 554, (D.C.Cir.2004). 359 F.3d efforts, expanded constructive such as the Finally government argues that be- opportunity registration.” for convenient protect cause the VRA is meant to 1973b(a)(l). Perhaps § 42 U.S.C. because (i.e., right fundamental of racial minorities standards, opaque of these actual bailouts classification), suspect a a heightened lev- rare; only have been 136 of the more than Congress el of deference to is in order. 12,000 (i.e., political subdivisions Appellees’ Br. Purportedly sup- 22-23. 1%) (all applied about have bailout this porting proposition is Chief Justice 37; successfully). Appellant’s Reply Br. Rehnquist’s statement in Nevada Dep’t of Section, Justice, Voting Dep’t Ter- Hibbs, Human Resources v. minating Coverage Spe- Under the Act’s (2003), S.Ct. L.Ed.2d 953 Provisions, http://www.justice.gov/crt/ cial a designed protect when statute is (last about/vot/misc/sec_4.php# bailout vis- right prevent a fundamental or to discrim- 2012) 9,May (listing ited successful bail- classification, suspect ination based on a outs). Moreover, a successful action un- “it easier for a pat- [is] show 4(a) actually § not der does end federal tern of state constitutional violations.” oversight jurisdictions; of bailed-out for a Id. at pas- 123 S.Ct. 1972. But the bailout, after the court “retain[s] decade sage simply point makes the that where a jurisdiction” just in case the Justice De- presumptively classification is (e.g., invalid “any aggrieved partment person” or race), an inference of discrimina- unlawful “alleging wishes to file a motion that con- tion automatically follows almost from duct has occurred which ... would have rules or acts that on pre- differentiate precluded” place. bailout in the first basis, sumptively forbidden whereas for 1973b(a)(5). § U.S.C. judged classifications under the “rational suggests may All of this that bailout test, disability age, such as or basis” § palliative the most modest 5’s “Congress identify, just must the exis- hypothesizes burdens. One scholar age- disability-based tence or state de- may bailout more as a fictitious “exist[] cisions, widespread pattern but a of irra- way coverage out of than an authentic [as] tional reliance on such criteria.” Id. at way shoring up constitutionality added). (emphasis Persily, coverage supra, formula.” special This element of pre- race other fairness, the same scholar also sumptively unconstitutional classifications explanations, entertains various other in- bearing no of whether has review Con- cluding possibility eligible ju- that the gress’s remedy proven pattern “fits” the just are risdictions the ones for whom 5 of discrimination. To hold otherwise burden, poses only very light see id. ignore completely princi- would the “vital ultimately concludes that no ples necessary separation to maintain theory explains one knows which “best powers and the federal balance” bailouts,” relative at 214. absence of id. (which paramount Court held Boeme Regardless of reason for the trivial bailouts, right, course involved fundamental number of irrational rules—here also encompassing namely right practice made so their six states one’s reli- Flores, offenders, v. gion). City top Boerne U.S. below the ten which include 536, 2157, 507, V). 138 L.Ed.2d 624 five uncovered (Figure states This (1997). in evaluating distinction the different

[*] ^{[*] [*]} states’ policies is rational? political dispute adop- A current Despite congressional a record of over —state requirements— tions of voter identification 15,000 pages 22 hearings, Shelby 4(b). 2005, § highlights oddity In 496, County, 811 at F.Supp.2d there is a requir- the state Indiana enacted law 4(b)’s suggest § little to coverage for- ing present government- its citizens to a mula continues capture jurisdictions photo voting. issued identification before especially high with levels of voter discrim- Against variety legal challenges, a is, ination. To the extent that the answer Supreme upheld the law. See as suggested, the district court that Con- Bd., County Marion Election Crawford gress wished to “continue to focus on those 181, 1610, L.Ed.2d jurisdictions with the worst historical rec- (2008). Texas and South discrimination,” ords voting id. passed Carolina both similar laws. See an overwhelming such focus on historical Smith, Gina Haley Signs Voter ID Bill practices appears by foreclosed Northwest Law, 18, 2011; May into Som- State, The requirement Austin’s that current burdens Ingram, mer Perry Signs Gov. Rick Voter justified by be current needs. Law, ID May 27, Bill into Assoc. Press, It goes without saying per- that racism http://www.yumasun. available at sists, as evidenced examples the odious com/articles/perry-51036-monitortx-rick- majority, offered Maj. Op. see austin.html. But because of those states’ 865-66. But without more evidence distin- 4(b), § they inclusion under had to look to guishing current in conditions the covered Department Justice attorneys in Washing- jurisdictions from those the uncovered ton approval. end, to seek further In the ones, 4(b)’s § coverage formula appears to Department blocked both laws. See be as obsolete in practice as one would Markon, Jerry S.C.’s Voter ID Reject- Law expect, in dynamic society, for markers ed, 24, 2011, A4; Dec. Dan- Post, Wash. years 34-to-59 Accordingly, old. I dis- Gilbert, iel Election 2012: Terns Law Re- sent. Blocked, quiring J., Voter IDs Is Wall St. 13, 2012, Mar. at A4. analysis my above is sole basis for Why should voter ID laws from South 4(b) finding of the VRA unconstitutional Carolina and Texas judged by different and thus for dissenting from the court’s (at minimum, criteria a different burden opinion. I need not and do not reach the of persuasion, which is often critical in constitutionality §of 5 itself. But before involving cases competing predictions of concluding, I want to address a effect) critical from those governing Indiana? A aspect §of and of some of the cases glimpse at the charts shows that Indiana interpreting earlier versions of that sec- ranks “worse” than South Carolina and tion. I simply address it first as a matter registration rates, Texas as of language' specifically well I, black use of lan- (Figures elected officials — III). guage II reality obscure then in observers, As to federal rela- —and appears Indiana tion to the clearly political words and philosophy “better” —it re- IV). ceived none (Figure of the 15th Though As to successful Amendment. unneces- § 2 suits South sary my outcome, Carolina and Texas are dissent’s the troubling Indiana, “worse” than but all three are tension between the encouragement act’s universally accepted and the ideals and indeed un- gerrymandering racial derstanding provision, “they” in the 15th Amendment seems embodied attention. worthy necessarily are of minority members groups. But in what minority sense do 5(b) any voting makes unlawful Section groups “preferred as such have a candi- respect with to vot- practice procedure or Individuals, course, date”? of pre- have purpose “that has the of or will have ing (unless candidates, groups ferred but lit- ability any of diminishing the effect of monolithic) erally only can do so in the of the United States on account of citizens majority limited that a group sense ... preferred race or color to elect their Thus, may preferred have a candidate. choice.” candidates U.S.C. of provision added). oper- when is translated into 1973c(b) § (emphasis And of English, assuring ational it calls for “the included phrasing course similar has been ability minority a group’s majority of Voting Rights §in 2 since Act 1982. See 1982, preferred elect their Amendments of Pub.L. No. candidates.” (codified 131,134 3,§ 96 Stat. at U.S.C. question raises the hap- This of what 1973(b)) pre- § that (prohibiting policies pened minority group’s to the oum minori- minority groups’ opportunity equal vent ty who dissent from the prefer- —those choice.”). representatives “to elect of their minority’s majority? ences of the (or language equivalent) a close The any course in polity Of that features originated have in one of the seems to rule, majority people some are bound to be 5, opinions though § earliest Court’s outvoted on an issue or a candidate and phrase explana- as an offhand in its thus to “lose”—on that ongo- round of the at-large a shift tion of how from district to ing political game. Such losses are a nec- minority impact: dilute voting might “Vot- essary function any system requiring of minority racial ers who are members of a (which unanimity hope- less than would be might majority well be in the in one dis- lessly impractical). open society And in an trict, minority county but a decided in the people freely that allows to form associa- type change a This of could as whole. tions, associations, design those nullify ability their therefore elect people obviously some will be members of candidate of their choice.” Allen v. State representatives associations whose from Elections, 569, Bd. 393 U.S. name, express, time to time in their opin- (1969). 817, 22 L.Ed.2d 1 But the S.Ct. they again ions do not share. But that ais language troubling use of such bеcame necessary having function of associations Georgia Ashcroft, v. where the said Court adopt empowers free to a structure that § application that in the 5 “a court leadership speak their with less than solely comparative should not focus on the backing. unanimous ability minority group of a to elect a candi- implied “they” But the 5 is not a 461, 480, date of its choice.” 539 itself; polity in nor is it an association (empha- 156 L.Ed.2d 428 freely Quite created free citizens. added). “solely” The of course sis indi- group reverse: It is a constructed artifi- approval cates such a consideration as cially by entirely of Congress, the mandate among compliance one several criteria for ethnicity. on the lines of race or §with authority On what con- has statutory from the “their” is Implied groups? Purportedly structed such necessarily “they.” a In the context of a But speaking impingements statute on citi- 15th Amendment to the Constitution. color,” says “right zens’ “on account of race or that that the of citizens of the oversimplifications, capture gener used to States to vote shall not be denied United or abridged by tendencies, or the United States justification al a political race, color, any on account of or State creating assuming political entity or condition of servitude.” previous through demographic that functions group’s “majority.” Supreme imagine language It is hard to could recognized generalizations has that these clearly more invoke universal individual justification. are no such Shaw protected, It “citizens” who are rights. Reno, any they protected are from denial of (1993), rights might their be based on the L.Ed.2d 511 it confronted racial race, group col- specified form in gerrymandering took the characteristics — or, previous condition servitude. The cluding persons separated in one district members of who launched the by geographic political boundaries and amendment, Warner, said Senator Willard “may who have little common with one “profess give equal to to each individual an another but the color of skin.” Id. at their Cong. Globe, political power.” share of 647, 113 plan: S.Ct. 2816. Such a (1869). Cong., 40th 3d Sess. 861 uncomfortable an bears resemblance to pivot point

The 15th Amendment was a political apartheid. It reinforces the struggle rights. the for universal human perception that members of the same struggle deep The roots of the are group regardless age, racial of their — Many concept obscure. trace the to the education, status, economic or the com- great religions, three monotheistic Juda- alike, munity they in which live'—think ism, See, Christianity, e.g., and Islam. interests, political share the same History op Ishay, Micheline R. Human prefer will the same candidates at the (2004) (noting the contributions of Rights polls. rejected We have such percep- others). traditions, among these three No impermissible tions elsewhere as stereo- spotty performance matter how the actual types. religions’ of those may adherents have Id. centuries, been over the the idea of a The pre-Enlightenment history of conti- God, single claiming allegiance of all nental Europе just included such enti- mankind, surely implies a recognition of “estates,” sep- whose members voted dignity humans, and worth of all undis- ties— arately from those of the other estates. group loyalties torted local historically famously, separately Most repre- elected gods. Perhaps linked to local Enlight- nobility, clergy, sentatives of the enment, though in organized tension with title; people gathered the “common” religion, has a clearly better it is immediate root of the French the French Declaration Estates-General. For the last Rights of Man and of By the Citizen. time. year, middle of that But at all events the 15th Amendment By Estates-General had ceased exist. a states clear national commitment uni- transforming itself into a National Assem- versal, political rights individual regardless bly, precipitated the French Revolution of race or color. permanent voting by and the abolition of estates, ultimately throughout Europe.

Of political course conventional dis- The 15th Amendment can be traced back course often uses such terms “the black development. to that basic vote,” vote,” Section 5’s youth vote,” “the “the senior ability any mandate to advance “the etc. But those who use these terms— consultants, politicians, their citizens of the on pundits, jour- United States account of perfectly they nalists —know well that preferred are race or color ... to elect their ” partial choice is a retreat candidates of LaROQUE, Stephen al., Appellants et times, perhaps an era pre-Revolutionary long past implications that its are

now so forgotten. HOLDER, Jr., Attorney Eric H. suggest this is to coun- None of States, General United deliber- try for minute countenance need al., Appellees. et rule at re- manipulations ate aimed No. 11-5349. any racial ducing voting impact in the form of group, whether restrictions United States Court of Appeals, boundary-drawing. access or of ballot of Columbia District Circuit. stamp out judicial proceedings And in May manipulations, such it would of course be perpetrators say for the no defense only to minori-

they sought downweight a But man-

ty’s majority. congressional any impact

date to assure the electoral majority more of a

minority’s seems to me than an enforcement of the 15th

distortion abridging “right ban on

Amendment’s of the United to vote ... citizens States race, color, con- previous account intention- Preventing

dition of servitude.” against minority is

al discrimination radi-

cally actively encouraging different from the mi- gerrymandering

racial favor of (really,

nority majority of the minori-

ty), § 5 does. there are Assuming in which a

places colorblind constitution constitu-

does not suffice as “universal principle,”

tional Parents Involved in

Community Schools v. Dist. Seattle School 701, 788,

No. Kenne- (opinion 168 L.Ed.2d J.),

dy, booth should not be one

of them. notes discriminatory practices may take hold be that argue either of these amend- did has run its litigation fore traditional Maj. Op. ments is unconstitutional. See course, may always use the stan courts as argue I. Appellant Neither do does 883. injunction remedy preliminary dard 4(b) unconstitutional, § however that is by adju prevent irreparable harm caused 4(b) is, § congruent that that not a — Perez, delay. Perry dicative See response problem to the cur- proportional U.S. -, 181 L.Ed.2d To rently posed voting discrimination. (2012). question necessarily answer that one must Indeed, ubiquitous availability § the conse- severity assess first 4(b) (i.e., coverage § quences § under sub- was creat- is of course reminder today). § jection to 5 as it exists overcoming specific purpose ed for the supra p. anti- state and local resistance to federal Supreme policy. discrimination When impose Whether is free to upheld first аct in it found depends on a select set of also necessary “case-by- § 5 was because course, shortcomings part, possible 2,§ litigation,” now was governed case remedy § 2 for the provides in the widespread and “inadequate to combat the country a whole. creates a That section voting.” Kat- persistent discrimination any jurisdiction right stop to sue

Notes

notes should deterrent effect Maj. Op. ... In- with caution.” 877. justify would continued VRA renewals out deed, beyond the serious concerns about Indeed, to the crack of doom. Northwest already by elucidated the ma- these data Austin’s insistence that “current burdens jority (e.g., groups different completely justified needs,” ... by must be current gathered regarding the data covered and 2512, § if S.Ct. would mean little 5’s jurisdictions), uncovered we also have al- supposed enough deterrent effect were McCrary information for how Mr. most no justify the current scheme. See Tr. of particular and his staff identified cases as Arg. at Oral Northwest Austin Munici- “successful” or not. All we know is that Holder, Utility pal Dist. No. One v. required he “some evidence” that the case L.Ed.2d 140 § 2 was “resolved” under and “some refer- (2009) (No. 08-322) (statement of Chief ence” to Appendix settlement. Joint Roberts) (“Well, Justice like that’s And the inference of “success” from evi- you know, it’s elephant whistle. old— possible excep- dence of settlements seems know, You I have keep this whistle to weak, tionally for both the unreported away elephants____Well, there are no jurisdictions cases in compiled the covered work.”). elephants, so it must by the National Commission and those jurisdictions from compiled the uncovered recap, To of the four metrics for which by McCrary. Mr. It overlooks not (voter exist, comparative data one registra- range outcomes embraced ‍‌‌‌​​‌​​‌‌‌‌‌‌‌​‌​​‌‌​‌​‌‌​​‌​‌‌​​​​​​​​​​​​​‌‌‌‍turnout) suggests tion and that the cover- concept of strategic settlement but also the age completely formula any lacks rational factors, including legal reputa- fees and connection to current levels of voter dis- risk, tional go jurisdiction’s into a (black crimination, another elected offi- decision to settle. cials), at best does nothing to combat that Additionally, coverage defenders of the and, worst, suspicion, it, confirms point scheme to two circumstances that (federal final two metrics observers and might artificially § also 2 figures reduce suits) § 2 formula, indicate that the though states, for the namely the “block- not completely perverse, is a remarkably ing” vetoes, § effect of actual and the fit Congress’s bad with concerns. Given jurisdictions’ deterrent effect of having to remedy imposed the drastic on covered preclearance. seek to blocking, As there above, § as described I seems little many basis to infer that do not believe equivocal that such evidence objections spread years over 24 were can sustain the scheme. substitutes for Any successful suits. such inference is undermined the De- Supreme Court’s initial review of partment’s ability to almost costlessly the formula in provides a model for No,” Say “Just the allocation of the burden evaluating such an imperfect correlation. proof jurisdiction, to the legal fees It assessed the evidence of discrimination fighting entail, Department will jurisdic- before it and divided the covered

Case Details

Case Name: Shelby County, Ala. v. Holder

Court Name: Court of Appeals for the D.C. Circuit

Date Published: May 18, 2012

Citation: 679 F.3d 848

Docket Number: 11-5256

Court Abbreviation: D.C. Cir.